Do Judges Make Law (a Cursory Look at the Recurring Question)
CHAPTER ONE
OBJECTIVES OF THE STUDY
This work aims at creating unambiguous clarity on the functions and duty of the judges and their role in the law making process.
It aims at recapitulating the concepts of separation of powers, checks and balances and judicial review, these concepts being central to understanding the judicial functioning and answering the question of whether judges make laws.
Determining if “filling in the gaps”, creating time and circumstance related meaning for vague words used by the legislature, correction of seeming legislative errors and other judicial practices of the same nature can be regarded as law making is also an objective of this work.
Summarily, the work aims at going beyond the sphere of legal theory and exploring the realm of practical reality in the midst of so many consenting and dissenting views on the issue of whether judges make laws or not, to take a balanced, objective and empirical stand on the topic question.
CHAPTER TWO
THE DUTY OF LAWMAKING
INTRODUCTION
This chapter gives an exposure on the origin and evolution of governmental structures’ foundation, growth and functioning specifically in the area of law making. Kicking off with the “social contract”, it captures a sum of how tribal societies which were the earliest form of communal settings came from a “pacta unionius” (an agreement to be united) and later evolved to monarchical sovereignties where law making, execution and interpretation were fused functions of the monarch. City states which were the earliest forms o democratic states came with the structures which gradually found root in today’s democracies. The doctrine and practice of separation of powers which spelt out a compartmentalization of law making, execution and interpretation is also put in perspective: The chapter runs further to expound the sources of law bringing to the fore (in particular) case law which is an extended necessity arising from statutory interpretation and is also the focal point of this thesis.
HISTORICAL EVOLUTION OF GOVERNMENTAL FUNCTION AND
LAW MAKING
There is hardly any convincing historical source of the origin of government through there exists historical evidence and of the gradual evolution of governmental functioning and lawmaking. The best that man has come up with in regards to the origin of government is the political theory of Social Contract. A delineation of this discussion along the distinct lines namely; the social contract theory and the empirical timeline evolution of governmental functioning and law making would serve the purpose of this work.
The Political Theory of Social Contract (Origin of government).
According to the political theory postulations of Hobbes19, Locke20, Montesquieu21, Rousseau and others, mans earliest existence was in a state of nature. A state of non-governance and of disorder best captured in the words of Hobbes thus;
“During the time, men lived without a common power to keep them all in awe, they are in a condition which is called war and that war was of everyman against every
The other proponents of this theory concur on the point that the state of nature was lawless and without government and Hobbes puts it that the ensuing consequence was that life was “solitary, poor, nasty, brutish and short” but Locke projects a distinct stand that the state of nature had a law of nature to govern it and that law teaches that no man ought to harm another in his life, health, liberty and possessions.
In the face of such brutal savagery which was inimical to the longevity of human existence, and of war of “everyman against every man” men decided to enter into a social contract-a pacta unionius (a pact to be united) and a pacta subjectionis (a pact to be subject to a leader), men decided to submit to an authority which in turn gave them protection and this marked the birth of governance and government.
CHAPTER THREE
THE ROLE OF THE JUDICIARY
INTRODUCTION
This chapter explores the question as what the role of the judiciary (i.e. judges) is in the scheme of things. The answer still can be found in the practice of separation of powers itself which projects that the role of judges is that of interpretation. The chapter further explores how this primary role of interpretation is done and goes further to explore an extended role of the judiciary which is to review the acts and action of the legislature an executive respectively.
INTERPRETATION: ASCERTAINING THE INTENTION OF THE
LEGISLATURE
The legislature makes the statutes and each statute emerges with its own combination of words. Disputes, misconceptions, misunderstandings and misapplications arise and the call is made to the court to play their interpretative role which is dictated by the constitution and through the cases. In the case of Martin Schroder and Co v Major and Co (Nig.) Ltd it was stated unequivocally that:
“The duty of the court is to arrive at the true intention of the legislature (the sentetia legis) based on the letters of the statute (litera legis) which are merely the external manifestations of the former.
This position which has been reiterated over the cases61 simply means that the intention of the legislature is epicenter in interpretation of statutes and such intention in deduced from the words of the statutes which are deemed to be expression of such intention.
Though definitions reflect idiosyncrasies62 and are bedeviled by individualistic colorations, one resourceful definition of the term interpretation of statutes is that proffered by Fitzgerald who defined interpretation as:
“The process by which the courts seek to ascertain the meaning of the legislation through the medium of authoritative forms in which it is expressed”
The authoritative form through which the meaning of legislation is expressed is the words of the statute. Two possible situations may arise in statutory interpretation and these situations bear an inextricable link with the words employed in the statute which in the first situation may be clear and unambiguous and in the second situation unclear or ambiguous.
CHAPTER FOUR
JUDGES IN LAW MAKING
INTRODUCTION
No doubt, the theory of separation of power and its practice as authorized by modern constitutions have designated the law making function to the legislature and law interpretation to the judiciary but there seems to be recurring rancour spurred by the actual practice of the courts (judges) which suggest that the theory and practice of separation of powers and the judicial role of adjudication is only a toga to cover the judicial lawmaking. This chapter serves to answer, in the most practical of terms, the recurring question of whether judges make law which is the focal under pinning of the entirely of this dissertation. The chapter kicks off with a scrutiny of the reaction of the judges to the question “Do judges make law?” and moves further to espouse theories and doctrines (particularly filling in the gaps and the doctrine of stare decisis) to answer the question since the judicial reaction are both consenting and dissenting. Delving beyond the scope of theories, the chapter scrutinizes the practices of the judges both at Common Law and under Nigerian jurisdiction to give a practical answer to the never dying question.
JUDICIAL REACTIONS TO THE QUESTION “DO JUDGES MAKE LAWS?”
The judges have in plethora of instances dismissed the incessant reference to them as judicial law-makers as mere accusations. In the recent case of Ugwu v Ararume for example, Niki Tobi belied judicial law-making when he said;
A judge is accused of making the law where there is no statute or statutory provision on the issue if there is no law on an issue, a judge had nothing to interpret and if he goes to interpret where there is no law, he will be deemed to hold water in his hands, which is physically impossible, it is in such a situation that the judge is accused of making the.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
The precis of this work and its findings reflect that the delineation of functions by the adoption of separation of powers emphasizes that the legislature’s role is that of law making, the executive role is that of law implementation and the judicial role is that of law interpretation. The judge in interpreting law do so by ascertaining the intention, of the legislature through the medium of certain common law rules (known as the rules of statutory interpretation) and also through the medium of certain maxims, presumption and intrinsic and extrinsic materials. The judiciary (judges) also plays the role of protection of the constitution, the people, and the rule of law through the medium of Judicial Review.
RECOMMENDATIONS
Having established unequivocally that judges make laws and that judicial law making is in many instances frowned against it is hereby recommended on the issue of the extent of the courts powers, that a statute providing exclusively and extensively on the judicial function should be passed.
The statute in order to reflect expertise on legal procedure should be a product of a commission of exceptional retired and experienced judges whose recommendations would be taken to the legislative houses to pass through the normal procedure of law making.
The statute should draw a line between judicial creativity which is a necessity and judicial activism which is an over-stretch of judicial creativity.
The statute should permit without restriction judicial creativity but should limit or totally invalidate judicial activism.
REFERENCES
- Bacon F. “of Judicature” in Essays (1625) (Everyman Edition 1979) p 162 Lord Reid “The Judge as law maker” in 12 Journal of the Society of Public Teachers of Law (1972) 22
- Elias, T. O. ‘Legal Theory: A Nigerian Perspective’ in Nigerian Essays in Jurisprudence (1990) p.1
- Umaru Eri ‘The role of the Judiciary in sustaining Democracy in Nigeria’ in Judicial Integrity, Independence and Reform: Essays in honour of Honourable Justice M I Uwais, ( 2006 ) 77
- Holmes O. W. ‘The Path of the Law’ (1887) 10 Harvard Law Review 457
- Eso, K “Interpretation of statutes in Nigeria” in Further Thoughts on Law and Jurisprudence. Pp. 310-311
