Definition
To declare is to make a formal, explicit, and authoritative statement of fact, intention, legal status, or legal right. The term carries weight across multiple legal contexts, each involving a degree of solemnity or official consequence that distinguishes legal declaration from casual assertion.
1. Testimonial / Evidentiary sense: To declare is to make a solemn assertion before witnesses, typically under circumstances that substitute for or supplement a formal oath. A testator who declares a paper to be his last will and testament, or a witness who "sincerely and truly declares and affirms" in lieu of swearing an oath, invokes this sense.
2. Pleading sense: To declare is to formally state a plaintiff's cause of action according to court rules — to file a declaration and serve it on the opposing party. This usage is tied specifically to common-law pleading practice and is the root of DECLARATION as a pleading instrument.
3. Legislative / governmental sense: To declare is to officially announce a legal status, condition, or resolve — as in a legislative body declaring war, a court declaring rights under a declaratory judgment action, or a government declaring a state of emergency.
4. Property / transactional sense: To declare is to create or formally establish a legal regime governing property — most prominently, a developer declaring the existence of a condominium regime by recording a declaration instrument.
Common Language
Modern common usage (Wiktionary): To assert or announce formally, officially, explicitly, or emphatically; also used in ordinary commercial contexts such as declaring goods to customs or declaring income for tax purposes.
Historical common usage (Webster's 1913): To make known by language; to communicate or manifest explicitly and plainly in any way; to exhibit, publish, proclaim, or announce. Earlier usage also carried a sense of making something clear or free from obscurity (marked obsolete by 1913).
The gap between common and legal meaning is one of degree and consequence. In ordinary English, to declare is to say something clearly and firmly. In law, the act of declaring frequently triggers formal legal consequences — establishing enforceable rights, substituting for an oath, initiating a cause of action, or creating a binding property regime. The solemnity embedded in the legal term is absent from most everyday usage.
Common Confusion
Declare is sometimes used interchangeably with assert, affirm, aver, and utter, but each carries distinct legal weight in specific contexts. AFFIRM typically signals an oath-substitute tied to conscientious objection; AVER is the pleading term for positive factual allegations; ASSERT is more general and carries less ceremonial implication. In constitutional discourse, a declaration of war is distinct from an authorization for use of military force (AUMF), though the two are frequently conflated in both popular and legal writing. In property law, a declaration (the instrument creating a condominium or HOA regime) is distinct from a deed, covenant, or bylaws, though all may be recorded and may interact.
Why It Matters in Research
The primary research trap with declare is anachronism. In pre-code common-law sources, "declaring" almost always means filing a declaration — the foundational pleading instrument of the common-law writ system. When reading 18th- or 19th-century reports and treatises, a court's reference to a party "declaring in assumpsit" or "declining to declare" is a pleading event, not a speech act. Researchers working in early American or English materials who treat "declare" as merely expressive will misread the procedural posture of the case entirely.
In evidence research, the testimonial sense of declare is critical to understanding the historical roots of the dying declaration doctrine and related hearsay exceptions. The phrase "solemn declaration" in older statutes and rules often signals a specific formal substitute for oath-based testimony, with its own admissibility conditions.
In constitutional research, declarations of war occupy a distinct corpus from AUMFs and executive emergency declarations. These are legally and historically separate instruments; conflating them in a corpus search will produce noise across all three categories.
In property research, the recorded declaration is the constitutive document of a condominium or common interest community. Searching for "declaration" in real property databases without limiting to this instrument type will return an enormous volume of irrelevant results — pleading-era materials, testimonial usages, and constitutional sources all use the same root term.
Cross-corpus awareness: Researchers moving between civil procedure, evidence, real property, and constitutional collections will encounter declare and declaration functioning as distinct technical terms of art in each. A search strategy effective in one collection will not transfer cleanly to another.
Historical Dictionary Support
The four source dictionaries converge on two primary legal senses: solemn assertion before witnesses, and the act of initiating a pleading by filing and serving a declaration. Burrill's is the most procedurally precise, specifying that "declaring" in the pleading sense encompasses not only drafting the declaration but also its exhibition to the court by filing and to the opposing party by service — a reminder that the term described a compound procedural act, not merely authorship of a document. Black's (both editions) and Bouvier's align on the testimonial sense, with Black's 2nd Ed. adding case citations (Lane v. Lane; Bassett v. Denn) grounding the testamentary and affirmation usages in reported decisions.
What the historical dictionaries do not address: the property-instrument sense of declaration (the condominium declaration) is an entirely modern development, postdating all four source dictionaries. Researchers should not expect any of these sources to illuminate that usage. Similarly, the administrative and constitutional senses — emergency declarations, declaratory relief as a distinct cause of action — are treated only obliquely if at all. The modern declaratory judgment remedy, codified in the federal Declaratory Judgment Act of 1934, lies entirely outside the contemplation of these sources.
Jurisdictional Note
The pleading sense of declare is a common-law artifact; code pleading and modern rules-based systems replaced the declaration with the complaint. Researchers in jurisdictions that adopted Field Code-style reforms in the mid-19th century will find the pleading sense disappearing from case law earlier than in jurisdictions that retained common-law forms longer. The property-instrument sense (condominium declaration) is governed by state condominium acts, which vary significantly in what the declaration must contain and how it may be amended.
Encyclopedia Cross-Reference
civpro_194: Dying Declaration — Rule 804(b)(2) (The Law Mind Civil Procedure & Evidence Encyclopedia)
realestate_72: Condominium Creation — Declaration, Bylaws, and State Condominium Acts (The Law Mind Real Estate Transactions & Construction Encyclopedia)
constitutional_154: Constitutional War Powers — Declarations of War, AUMFs, and Undeclared Conflicts (The Law Mind Constitutional Law Encyclopedia)