Do Judges Make Law? (A Cursory Look At The Recurring Question)

Project and Seminar Material for Law

Do Judges Make Law? (A Cursory Look At The Recurring Question)


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

Chapter Five

Conclusion and Recommendations

5.0.0: 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.

The adopted theory of separation of powers falls short, in that it did not put in perspective the weaknesses which are inextricably a part and parcel of the human actors of the legislative, executive and judicial role. The human weaknesses are unavoidably reflected in the laws made by the legislature who themselves are neither clairvoyant nor infallible. However the laws are, whether just or unjust, weak or strong, retrogressive or progressive they have to be interpreted by the judges who cannot refer error, injustice or weakness back to the legislature for correction and cannot in the alternative fold their hands and do nothing. In such instance the judge creatively stretches the ambits of the law or contrasts the law and such law being so altered naturally take new shape, hence the aspersions from many quarters that the judges do hijack the legislative function of law making. Here lies the crux of this study which put in one sentence is; the search of an objective answer to the recurring question of whether or not judges make laws. The empirical searchlight found no answers from the judges themselves as they have been divided on divergence a voyage of discovery is embarked upon with special focus on the actual practice of the judges in England and Nigeria.

The practice of the courts in England shows that the judges have from the earliest times of Common law’s development, traditionally played the role of formalizing the informed rules of the customs of the realm. Through the judges’ excesses were to a large extent curbed during the beginning stages of the upsurge of parliamentary supremacy the judges has been bold and active in pursuit of the emphasis of “justice before the law” which their Oath of Office stress.

The Nigeria story is confirmatory of the truth in the argument that judges do make laws. Despite the Oath of Office constraining the judges to the defense of the constitution and law, the constitution gives a free hand to the judges by extending the judicial (courts) power to “all inherent powers and sanctions of a court of law” which would reasonably be held to include the power of creativity. Again, loopholes in the laws reflected for example in recent cases on the electoral laws also call for judicial creativity to solve problem which obviously cannot be immediately referred back for the legislature’s correction.

Apart from this, findings from practice which are backed by myriad of cited cases, there are some theoretical extensions of the judicial function which tell of nothing but judicial lawmaking. Central among these are stare decisis and judicial precedent. If the doctrinal practice of stare decisis and judicial precedent is to ensure that judges follow the previous decisions of higher courts then can one reasonably say that the previous decisions are not law?” If the previous decisions of judges are to be followed then such decisions are laws and the law reports are sources of law called “case law”.

It is on the basis of the above findings that it is submitted that the judges, despite all rationalizations and denials, do make laws which are preserved as case law through the instrumentality of stare decisis and judicial precedent.

5.1.0: 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.

The statute should define, with precision, the vague term ‘inherent powers and sanctions of a court of law’ as used in s.6 (6) (a) of the 1999 Constitution.

On the basis of the finding that judicial activism arises from a deviation from the intention of the legislature, it is suggested that the statute should provide for a medium of referring ambiguous and unclear sections in statutes to the legislature for

declaration of legislative intent. Alternatively the rule in Pepper v Hart191 should be codified by the statute in order to permit judge to have access and recourse to legislative materials for the purpose of discovering the legislative intention.

Going by the discovery that the public outcry has not been against judicial law making on issues like contract, tort, marriage etc., which are more of private concern but arises from judicial lawmaking on issues of public debate and concern like abortion, euthanasia and most common in Nigeria election matters. It is humbly submitted that since these issues are sensitive to the people, the people’s representatives (the legislature) should be the only group allowed to make laws on those issues. It is also suggested on this premise that a limitation should be placed by the recommended statute on the extent to which judges make pronouncements on such issues (except where there is no statute at all on the issue).

It is also suggested on a general note that where judicial creativity is allowed judges should be able to bend the law to suit the contemporary societal pursuit and the policy which the statute to be interpreted intended to effect.

Summarily, what is suggested is not a total overrule of judicial law making but a statute which will bring judicial law making with reasonable legal ambit for as submitted by Hon. Justice Umari “If one amputates the hand of the executive society survives. So it is with the legislature. But if one computes the hand of the judiciary, ab initio, Government will be a carcass192.

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