INTRODUCTION
By virtue of the doctrine of separation of powers and checks and balances it is not the duty of the judiciary to make laws. The 1999 Constitution in sections 4-6 provided for the legislature to make laws, the executive to exercise executive powers and the judiciary to exercise judicial powers to determine questions of civil rights and obligations.
However under common law is referred to as judge made laws because it was created by the itinerant judges in England. Therefore the controversy exists as to whether the courts do indeed make new law or whether law making is strictly reserved for the legislature. Judges have often insisted that they do not make law directly.
In this regard two theories exist
1 Declaratory theory
2 Creative theory
THE DECLARATORY THEORY OF JUDICIAL FUNCTION
Blackstone’s is considered the originator of the declaratory theory. He wrote that the judge is "sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. According to this theory the law has always existed and judges merely discover the law as they are faced with different situations. Thus in any new case they derive the appropriate rule logically from already pre-existing legal principles. In other words, judges never make or create new law.
THE CREATIVE THEORY OF JUDICIAL FUNCTION
The second opinion views the law as the will of the justices and accepts that judges do make law Bentham’s in volume V of his WORKS wrote contemptuously of judge made law but acknowledged that judges do make law "It is the judges that make the common law, just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way judges make laws for you and me." John Austin regarded the declaratory theory as “the childish fiction employed by ourjudges that judiciary or common law is not made by them, but is a miraculous, something made by nobody, existing, I suppose from eternity, and merely declared from time to time by the judges”. He agreed that judges make judicial law.
It is incontrovertible that judges meet new circumstances that were not contemplated by the law makers when the law was first made and in such circumstances they create new law to meet the changed conditions, which are termed original precedents. Their are instances when there are neither statute nor case law on a matter before a judge. In such instance the judge is hopeless, but the case must be decided either way. He cannot adjourn the case for the legislature to pass a law on the matter and he cannot fold his hands and tell the litigants that he us helpless on ground that their is no relevant statutes or case law governing such issues before him. So in this situation the judge have the decision the case and one way or the other he made the law.
The application of precedent by judges
Precedents are legal principles, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts are mandatory precedent on lower courts that is; the principle announced by a higher court must be followed in later cases. Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which there seems to be no precedent or any guiding rule. In these circumstances, judges can be said to be formulating original precedent thereby using his own discretion regarding when he thinks rules need to be applied, changed, improved, or abolished.
Statutory interpretation.
The trend has always been that the legislature makes the law while the judges interpret it. Legislation may sometimes be ambiguous or unclear. When this occurs, a court will need to decide between different interpretations of legislation.
The role of judges in interpreting legislation and the Constitution is similar. The Constitution is written in more brief and general language than most Acts of Parliament. This is because it is expected to last longer and be able to accommodate changing circumstances. This style leads to a greater range of interpretations. Over the years, the Supreme Court has made decisions which have affected the practical operation of the Constitution. The parliament which is in charge of law making cannot amend each and every law simply because it fast becoming obsolete. Therefore when the law becomes unclear judges cannot simply say it’s unclear and ask the parliament to rectify it. Judges must take the law into their own hands to and interpret the laws to an extent that is reasonable and in the bounds of law and reason thus they should generally accept responsibility of reforming the law in the interests of clarity, efficiency and fairness.
Conclusion
The power to make law is primarily vested in the parliament and under the constitution judges are under no obligation to make law. However in today’s world where time is dynamic there is a need to constantly interpret the law to fit the ever changing times. Judges are most paramount at this stage because they cannot send laws back for rectification simply because the times have changed. It’s up to them to exercise the utmost reasonable discretion and interpret the law in such a manner that is complementary to the current mode of life in so doing making law.
Indeed the power to make law is one that is not vested in judges but it cannot be denied that to some extent they actually do make law.
By
Abdulkadir Muhammad
Comments
Post a Comment