‘DO JUDGES MAKE LAW?’ A CURSORY LOOK AT THE RECURRING QUESTION
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It is common knowledge that the age long principle of Separation of powers allocates the governmental functions of law making, law implementation and law interpretation to the Legislative, Executive and Judicial arms of government respectively and each arm is to function independently without any unwarranted intermeddling.
It is trite that the function of lawmaking for peaceful coexistence and orderliness in the society is vested in the recognized law making organ, in the Nigerian case being the National or States House of Assembly as the case may be. It is however evident in practical reality, due to the application of certain concepts like Judicial Review, Checks and balances amongst others and the evolution of the idea of case law and
stare decisis that the law interpretation duty of the Judiciary and the legislative duty of law making appear overlapping. This seeming power usurpation on the part of the judiciary has been a subject of great debate for centuries. While some opine that the functioning of the judges is simply reflective of law interpretation others reason that judges are intruding into legislative business and accuse judges of judicial activism and a seemingly more objective school project that effective judicial functioning is
inevitably linked to legislative functioning. In the mist of all these the judges themselves have taken both affirmative and dissenting stands and one wonders where to get answers the seemingly unanswered question “Do judges make laws?”
This work touches the practical and legal stand on the issue of whether Judges make laws giving cognizance to ex cathedra Statutory and Judicial authorities alongside scholarly arguments relevant to the issue.
Law is central to national governance and a nation can succinctly be described as a group of persons within a defined geographical confine and guided by given set of laws with a recognized governmental structure to make, execute and interpret the given set of laws. The whole idea of governance is circumvented around the idea of law hence the governmental functioning cannot be successfully defined without reference in one way or the other of the idea of law.
For the governance and smooth running of any society, law has to be made, executed and interpreted. Recorded history started with the periods when the tripartite function of law making, execution and interpretation were either entirely or to a large extent left in the hands of a unilateral body – in most cases being the monarch and his/her council. Everyone assumed that government required unification of authority. Louis the XIV of France puts bluntly: “L’etat est moi” (the state is mine). This no doubt
led to tyranny since as scholarly opinion puts it.
“It is foolhardy to give to law-makers the power of executing law, because in the
process they might exempt themselves from obedience and suit the law (both in
making and executing it) to their individual interest”1.
This tyrannical posture thrived until the early period of renaissance when scholarly
and social scientific ideology led to the development of the idea of separation of
powers which advanced that the functions of law making, execution and
interpretation be put in the hands of three distinct bodies namely; the Legislature, the
Executive and the Judiciary. These bodies were subsequently coined the three arms
of government and are ordinarily expected to function independently without any
With this structure in place, the judges being the arbiters of the Judiciary were given
the function of law interpretation. The Legislature on the other hand being the
elected representatives of the people served as law makers. The legislators by
conceited effort try to ensure that laws are made with utmost clarity of diction/words
and that laws cover for all anticipated and unanticipated situations and exigency but
this has seemed elusively impossible and as a result the legislature is faced daily with
the onus of not only of creating clarity in the face of unclear and ambiguous
legislation but also of “filling in the gap” where the legislature fails to legislate on an unanticipated issue which may arise from changing societal trends and scientific
advancement. The legislature may also by the inherent weakness of human nature
use words which cannot reasonably be held to reflect legislative intention and as
such cannot be given effect to unless such errors are corrected by judicial
pronouncement. Legislation is also filled with the use of words like “reasonable
time”, “inordinate delay” amongst others which require time and circumstance
The above practice of creating clarity, correction of seeming legislative errors, giving
fixed circumstantial interpretation to vague words and “filling in the gaps” has led to
the development of what is referred to as case law which is binding through the
doctrine of stare decisis which dictates that the decision made by a court in one case
is binding on the court and other lower courts in later cases involving similar issue.
The evolution of case law and the seemingly overlapping function of the judiciary
have led to the recurring question of whether judges are law makers.
1.1.0: BACKGROUND TO THE STUDY
The legislature is to make the law, the executive to execute the law and the judiciary
to interpret the law so dictates the age long principle of separation of powers. No
human person is all seeing, all wise and none can predict with utter assurance the
turn of events in due course of time so dictates the inevitable law of human nature.
No one, not even the legislator in whom the confidence of the people who look forward to a better society is placed is above error. Error is inherent in human nature
and the legislators being humans make error in legislation. Who stands to correct
such error? Who but the judge who sits to grant fair hearing to the people over whom
Legislators are neither omniscient nor clairvoyant. Social advancement and
skyrocketing scientific innovations in most instances outpace legislation when the
legislators are understandably busy with other attention needing and pressing societal
issues. To cover for this the House of Lords essayed ex cathedra:
“The courts having discovered the intention of Parliament … must proceed to fill in
the gaps. What the legislature has not written, the courts must write’2.
This however must be done having due regards to the affectionate admonition that:
“The judge should never while exercising his interpretative jurisdiction, be
permitted to wear the cloak of an oracle or be upgraded to a demagogic fuehrer but
should always remain a dispenser of justice”3.
In the Nigerian milieu and under Nigerian law, the Constitution clearly allocates
Judicial Powers and interpretative functions as regards the law to the Courts4 and
allocates quasi-legislative powers to the courts in certain sections5. Juristic and scholarly postulations on the issue of whether judges make laws or not have been
both affirmative and dissenting, and one wonders where to get answers to the
recurring question. There is a need to create unambiguous clarity on the issues of
case law, Judicial Review, Judicial activism, stare decisis and other connected issues
which are central to giving a buoyant answer to the recurring question and this work
stands to serve that purpose.
1.2.0: 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.
1.3.0 FOCUS OF THE STUDY
This work focuses on the jurisprudential and empirical argument on the role of the
judiciary and on whether judges make laws in Nigeria. It delves into the role of the
judges in the law making process having cognizance to the doctrines of separation of
powers, checks and balances, judicial review, filling in the gaps and other concepts
and realities relevant to giving an unequivocal answer to the question of whether
judges make laws.
1.4.0: SCOPE OF THE STUDY
Though this work delves into a globally significant issue, it is however concerned
more with and as such restricted to the rules guiding law making and the judicial
process in Nigeria and serves to answer the question “do judges make laws?” in the
Nigerian milieu. Worthy of note however is the fact that despite the territorial
restriction, the work is not devoid of reference (both in case law, statutory law,
juristic arguments and scholarly postulations) to other Commonwealth jurisdictions.
These references do not serve to widen the territorial scope of the work but to further
buttress the issues therein.
1.5.0: RESEARCH METHODOLOGY
This work explores both primary and secondary sources of information, the primary
sources being the 1999 Constitution of the Federal Republic of Nigeria, Statutes and
Case law while the secondary sources include textbooks, dictionaries, juristic articles
and other materials necessary for the achievement of the aims of this study
1.6:0: LITERATURE REVIEW
This thesis touches on eclectic scholarly views and works on the question “Do judges
make laws?” The more prominent view that law is primarily made by the legislature
and interpreted by the Judges is held by Francis Bacon who emphasizes that the role
of the judge is only “to interpret law and not to make law or give law”6
Oguntade G. in “Dissenting judgments and judicial law making”7 takes a bifurcate
stand on the issue of whether judges do make laws or not. Raising the, question
directly he says;
“Do judges make laws? The answer to this seemingly rhetorical question is No. but
it is neither a resounding no nor an unqualified answer in the negative”.
He comments further that:
“We know that judges do more than just apply the law as it is. They sometimes
extend it and at other times create new laws that remain binding on all until
reversed, or overruled by courts competent to do so”.
Arguing without any prejudice to fact that law making is primarily the Legislatures
function. Asein J. O. in Introduction to Nigerian Legal System points out that judges
play some role in the lawmaking process. According to him;
“The primary duty of law making is that of the legislature and judges do not go
about making laws in the same manner and with the same ease as the legislators do
but they are not altogether detached from the legislative process8.
Arguing further he stresses that a judge faced with a legal problem does not have to
resign helplessly because the legal rules are inadequate to resolve the conflict. He
advocates on they ground that;
“Judges are therefore encouraged to formulate fresh rules of law or to extend the
existing ones to deal with novel cases”9.
Reacting to denials of judicial law making, Lord Reid derides all such denials as a
belief in fairy tales which has stood long for too long time. In his clerical publication
“The Judge as law maker” he puts forth positive and empirical argument stating
categorically that “we do not believe in fairy tales anymore”10.
Kolajo pointing out that Judge generally deny that they do make laws in his book
“An Introduction to Law” admits up front that they do. In his work he comments
‘‘Judges in general, do not always admit that they make new laws. The duty of
making law, they contend, is that of the legislative. In reality however, Judges at
times make laws. Judicial decisions and pronouncement over a period of time,
especially when the decisions and pronouncements are confirmed by superior
courts, more or less become law”11.
Elegido in “Jurisprudence” takes a radically different posture from Bacon’s.
Admitting that judges do make laws, he posits that what should be of concern is
whether they should do so. According to him;
“That judge engage in law making is beyond controversy… The real problem is not
whether the; judges engage in law making but rather whether they should do so
,and subject to what limits”12.
Imam, I. in “The myth of Judicial Activism in Nigeria: Making sense of Supreme
Court Judgments”13 berated the Legislature’s failure (particularly at constitutional
amendment in 2007 and rebuking the legislature for more often than not impending
progressive development of Nigeria points out that judges do make laws and judicial
law making is a necessity. To him;
“Legislation to fill vacuum in the constitution may be cumbersome, more so the
rigidity of the procedure for constitutional amendment do not help matters, thus
judicial activism.., has become imperative. The pace of change may he great
bringing with it new social and economic conditions and demands for the
recognition of novel claims. In such circumstance there may be peculiar need for
Oputa taking a similar stand on the existence and necessity of judicial law making
averred in “Judicial Activism. A catalyst for political stability” that:
In a progressive world, the law and the administration of justice cannot afford to be
static and retrogressive… we are not to fold our hands and do nothing. No. Our
judges have to interpret the law such that it makes sense to our citizens in
distress… Niki Tobi in his book “Sources of Nigerian Law” rules out the justification of
judicial law making on the basis of circumstantial necessity. Reacting to whether
.judges make laws or not He points out that;
“Although judges generally deny that they make they make the law at times, the
truth is that they do”16.
Reacting to the justifications of judicial law making, he laments that;
While the need for the daily growth of law to reflect the daily changing
circumstances of society is a desideration, the answer is not necessarily in judicial
law making, particularly when the action of the judge totally changes the content of
the statute this throwing over board the intention of the legislature”17.
He admonishes that since the judges are quick to frown at Legislative and Executive
usurpation of Judicial powers, the judges should also strictly mind their business and
desist from usurpation of the legislative role of lawmaking: Concluding, he warns
“The judge has himself to blame for him boldness which has no support in the laws
the land including all canons of statutory interpretation”
Lord Davis, circumventing the question and stating that there is no consensus on the
precise function of judge observed that;
“Whatever judge does, he will surely have his critics. If in an effort to do justice he
appears to make law, there will be cries that he is overweening and that he has
rendered uncertain what has been regarded as established legal principles. On the
other hand, if he sticks to the old legal rules, an equally vocal body will charge him
of failing to mould the law to social needs”18.
This chapter sets the pace for this work. It gives a clear introduction and background
to the work going further to set its scope and focus. It gives an exposure of the
research methodology adopted therein and highlights some of the Juristic literatures
which are of importance to the topic issue and thus used in the work.
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