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

DO JUDGES MAKE LAW? (A CURSORY LOOK AT THE RECURRING QUESTION)

ABSTRACT

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 inter meddling.

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 cathedral Statutory and Judicial authorities alongside scholarly arguments relevant to the issue.

Table of Contents

CHAPTER ONE

GENERAL INTRODUCTION

1.0     INTRODUCTION

1.1.    BACKGROUND TO THE STUDY

1.2    OBJECTIVES OF THE STUDY

1.3    FOCUS OF THE STUDY

1.4   SCOPE OF THE STUDY

1.5   METHODOLOGY

1.6   LITERATURE REVIEW

1.7   CONCLUSION

CHAPTER TWO

THE DUTY OF LAW MAKING

2.0    INTRODUCTION

2.1    HISTORICAL EVOLUTION OF GOVERNMENT FUNCTIONING AND LAWMAKING13

2.2   THE DOCTRINE OF SEPARATION F POWERS

2.2.1 SEPARATION OF POWERS IN PRACTICE

2.3   SOURCES OF LAW

2.4   CONCLUSION

CHAPTER THREE

THE ROLE OF THE JUDICIARY

3.0    INTRODUCTION

3.1    ASCERTAINING THE INTENTION OF THE LEGISLATURE

3.2   TOOLS FOR ASCERTAINING LEGISLATIVE INTENTION

3.2.1 THE USE OF THE COMMON LAW RULES OF INTERPRETATION

3.2.1.1 THE USE OF MAXIMS IN INTERPRETATION

3.2.1.2 THE USE OF PRESUMPTIONS IN INTERPRETATION

3.2.1.3 THE USE OF INTRINSIC AND EXTRINSIC MATERIALS

3.3   JUDICIAL REVIEW

3.4  CONCLUSION

CHAPTER FOUR

JUDGES IN LAW MAKING

4.0    INTRODUCTION

4.1    JUDICIAL REACTIONS TO THE QUESTION DO JUDGES MAKE LAWS?

4.2    THEORETICAL REFLECTIONS OF JUDGES AS LAW MAKERS

4.2.1.1  FILLING IN THE GAPS

4.2.1.2. THE DOCTRINE OF STARE DECISION

4.3       PRACTICAL REFLECTION OF JUDGES AS LAW MAKERS

4.3.1.   JUDICIAL LAW MAKING AT COMMON LAW

4.3.1.1  JUDICIAL LAW MAKING IN NIGERIA

CHAPTER FIVE

GENERAL CONCLUSION

5.0       CONCLUSION

5.1       RECOMMENDATIONS

BIBLIOGRAPHY

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