Declarations – Homer Simpson’s Remedy – Is there anything they cannot do?

Different legal usages of the word "declare" and "declaration" throw up the need to consider what it is that a court does when it makes a declaration. It is also necessary to consider what it does not do. That raises the question whether a declaration is, strictly speaking, an exercise of power at all. A judicial declaration says something about something. It is a formal statement which may be of fact or law or mixed fact and law. In State jurisdictions it generally must concern a justiciable controversy. In federal jurisdiction it must relate to a "matter" in the sense in which that term is used in Ch 3 of the Constitution. It does not require the prior existence of a cause of action, a wrong or an injury. Importantly, it does not create rights capable of enforcement without a further order of the Court. As PW Young observed in the 2nd edition of his text, "Declaratory Orders":


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