Do judges make law (a cursory look at the recurring question)

Thesis Overview

<p> </p><p><strong>1.0.0: INTRODUCTION</strong></p><p>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.</p><p>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: “<em>L’etat est moi”</em>&nbsp;(the state is mine). This no doubt led to tyranny since as scholarly opinion puts it.</p><p>1</p><p><em>“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</em></p><p><em>making and executing it) to their individual interest”</em><em>1</em>.</p><p>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 unwarranted interloping.</p><p>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</p><p>1 Aihe D. 0 <em>et al</em>&nbsp;“<em>Cases and Materials on Constitutional Law in Nigeria”</em>( University Press Plc,</p><p>Ibadan,1979)132</p><p>2<br>&nbsp;</p><p>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 related interpretation.</p><p>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 <em>stare decisis</em>&nbsp;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.</p><p><strong>1.1.0: BACKGROUND TO THE STUDY</strong></p><p>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</p><p>3</p><p>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 he adjudicates?</p><p>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:</p><p><em>“The courts having discovered the intention of Parliament … must proceed to fill in</em></p><p><em>the gaps. What the legislature has not written, the courts must write’</em><em>2</em><em>.</em></p><p>This however must be done having due regards to the affectionate admonition that:</p><p><em>“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</em></p><p><em>should always remain a dispenser of justice”</em><em>3</em><em>.</em></p> <br><p></p>