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

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

judges make law:

Abstract

There had been a hot debate on the function of judges in the process of performing their judicial functions. The debate bases on whether judges makes law or not. In order to understand the debate and to able to make a critical argument in this debate, it is important to the proposing party or opposing party of this debate to take some measures to study and to acquire full knowledge about the doctrine of precedent as well as the doctrine of separation of power.

The doctrine precedent provides that the decision of the superior court will bind upon the subordinate court. Under the doctrine of precedent the principle that the judge of the superior court introduce becomes a binding principle to lower courts, and judges and magistrates of all lower courts of the same judicial hierarchy must apply the principle unless there are crucial circumstance that may entitle them to repudiate from the previous decision.

Under the doctrine of separation of power, government powers are divided into different three organs of the state that are executive, judiciary and legislature (parliament). Each organ has its jurisdiction and different functions from other organs. No organ should interfere with functions of another organ. The judiciary is vested with power of interpreting laws and administering justice. The power to make laws is vested under the parliament. Therefore it is against the doctrine of separation of power for judicial officers to make laws.

. judges make law

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

CHAPTER ONE

INTRODUCTION

Background to study

Judges make law.^[1]   This fact—and its consequences—has been a key area of study and debate in the legal academy.  Concepts such as the countermajoritarian difficulty^[2] and judicial activism,^[3] as well as numerous jurisprudential theories, are all concerned with the propriety of such lawmaking and how judges should (or should not) perform their lawmaking functions.  Such scholarship tends to draw a distinction between judicial lawmaking and legislative lawmaking.  While democratically elected legislatures are free to base lawmaking decisions on raw political, ideological, or personal considerations, judicial lawmaking is supposed to be a more refined art—one that accounts for past legal precedent and is based on a coherent analysis of what the law “is,” rather than what it “should be.”^[4]

As a practical matter, however, judges make law even when their decisions are inelegant, incoherent, or inconsiderate of the relevant legal sources, arguments, and implications.  Such decisions may deserve criticism and may even be deemed “wrongly decided.”  Nonetheless, it is still the judges—not the critics—who make law, and a poorly reasoned decision can still be an effective act of judicial lawmaking.  Just as a legislature makes law even when the resulting statute resembles a pig’s ear^[5] and the legislative process a sausage factory,^[6] so can the judiciary make law even when its decisions fail to meet the standards of judicial lawmaking that many expect.

This article embraces the comparison between judicial and legislative lawmaking, and views judicial lawmaking through a legislative lens.  While many perceive legislative lawmaking as being subject to no constraints other than the next election, the truth is that legislative lawmaking is not unbounded. Legislative lawmaking is typically constrained by a constitution, one which sets procedural and substantive limits on the lawmaking function.

Constitutionalism, as Frank Michelman has stated, is the “‘law of lawmaking’ . . . that controls which further laws can be made and by what procedures.”^[7] In our system, the process of judicial review provides for meaningful enforcement of these constitutional norms, because unconstitutional laws may be invalidated.  The character of legislative lawmaking, therefore, depends in large part on the constitutional requirements with which such lawmaking must comply.  This is, no doubt, why the scope and meaning of these constitutional limits garners such a large share of attention.

It is how ever important to  inquiry into  whether the principle sets an enforceable restriction on judicial lawmaking, such that actors other than the initial lawmaking tribunal may treat an attempt at judicial lawmaking as invalid if it runs afoul of that principle.  Such restrictions are “constitutional” in the sense that they set substantive limits on judicial lawmaking and the procedures with which judicial lawmaking must comply.

Objective of the study

It is against this backdrop that this paper examines the reoccurring question “do judges make law?” with a view to situating its strategic utility on exploring different schools of thought on the subject matter and criticisng their theorectical backing.

 

 

Scope of The Study

The enormity of the subject matter has led to the selection of some theories supporting the claims of various authors. In general, reference is made to the functionality of the declaratory theory in common law.

 

Research Methodology

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award.[8] First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations).[9] It also concerns with critical review of legislation and of decisional processes and their underlying policy

 

Literature review

Supporters of this theory argue that judges do not make laws; they only discover the law and declare it and not more than that.^[10] They only declare what had been the law and they do not introduce new laws. This view has been supported by various jurists.

In supporting this view sir Mathew Hale wrote ‘the decision of courts of justice do not make law properly so called, for that only king and parliament can do.

Blackstone^[11] pointed out that; ‘they (judges) are depositories of the law…A judge is sworn to determine, not to accord to his private judgment but according to the known laws and custom of the land; not delegated to pronounce a new law but to maintain and explain the old one.

Edward coke had a view that; the judicial decisions do not constitute a source of law but rather a proof what the law is’^[12] .

Some judges also do not agree that they make laws. For example in Reshwar Prasad V. State of west Bangal^[13] the supreme court of India stated, “no doubt the decision by the Supreme Court binds all subordinate courts it should always be remembered that it (the Supreme Court) do not enact”.

Also lord Esher stated ‘‘there in fact no such thing as judges made law, for the judges do not make law though they frequently have to apply the existing law to circumstance as to which it has not previous been authoritatively laid down that such law is applicable’’^[14]

 

 

[1] 4. Alexander m. Bickel, the least dangerous branch:  the supreme court at the bar

Of politics 16-23 (1962); john hart ely, democracy and distrust:  a theory of judicial review 1-9 (1980); aharon barak, foreward:  a judge on judging:  the role of a supreme court in a democracy, 116 harv. L. Rev. 16, 62 (2002) (“judges make law, and the public should know that they do.”); christopher j. Peters, adjudication as representation, 97 colum. L. Rev. 312, 315 (1997) (“[c] ourts do make laws (or, if you prefer, rules) that govern us[.] ”); edward l. Rubin & malcolm m. Feeley, judicial policy making and litigation against the government, 5 u. Pa. J. Const. L. 617, 639 (2003) (“as virtually every political scientist who studies courts asserts, and as discussed at length in our book, courts make public policy.”); frederick schauer, opinions as rules, 53 u. Chi. L. Rev. 682, 684

(1986) (reviewing bernard schwartz, the unpublished opinions of the warren court (1985)) (noting that “the words of a[] [judicial] opinion take on a canonical role not unlike that played by the words in a statute”).

[2] 5. See bickel, supra note 4, at 16-23; ely, supra note 4, at 1-9; jack m. Balkin & sanford

Levinson, understanding the constitutional revolution, 87 va. L. Rev. 1045 (2001); barry friedman, the birth of an academic obsession:  the history of the countermajoritarian difficulty, part five, 112 yale l.j. 153 (2002); barry friedman, dialogue and judicial review, 91 mich. L. Rev. 577 (1993).

[3] . Balkin & levinson, supra note 5, at 1081; randy e. Barnett, is the rehnquist court an “activist” court?:  the commerce clause cases, 73 u. Colo. L. Rev. 1275, 1275-77 (2002); peters, supra note 4, at 317-18.

[4] . See robert h. Bork, the tempting of america:  the political seduction of the law 2 (1990) (“a judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result.”).

[5] . See lindh v. Murphy, 521 u.s. 320, 336 (1997) (“all we can say is that in a world of silk purses and pigs’ ears, the act is not a silk purse of the art of statutory drafting.”).

[6] . The comparable ugliness of legislating and sausage-making is frequently noted in legal scholarship.  David luban, no rules?:  considering values asking the right questions, 72 temp. L. Rev. 839, 847 (1999) (“[a] first peek into the legislative sausage factory is indescribably revolting.”); richard j. Pierce, jr., reconciling chevron and stare decisis, 85 geo. L.j. 2225, 2235 (1997) (“when that statute emerges from the sausage factory that is the legislative process, it invariably includes scores of gaps, ambiguities, and internally inconsistent provisions.”); peter l. Strauss, the courts and the congress: should judges disdain political history?, 98 colum. L. Rev. 242, 265 n.92 (1998) (“[f] or legislation as for sausages, one should enjoy the result, but not watch the making.”) (citing cmty. Nutrition inst. V. Block, 749 f.2d 50, 51 (d.c. cir. 1984)).  The analogy is often attributed to otto von bismark.  See edward l. Rubin, the concept of law and the new public law scholarship, 89 mich. L. Rev. 792, 806 (1991) (noting “bismark’s observation that anyone who loves law or sausage should not watch either being made”); peter l. Strauss, the common law and statutes, 70 u. Colo. L. Rev. 225, 240 & nn.38-41 (1999) (“however one likes statutes or sausages, one should not watch them being made.”).  But some have cited sir winston churchill.  See bernard schwartz, curiouser and curiouser:  the supreme court’s separation of powers wonderland, 65 notre dame l. Rev. 587, 600 (1990) (“[a] legislative body is, to paraphrase sir winston churchill, hardly worthy of the title of congress if it merely grinds out laws as a sausage-maker grinds out sausages.”).

[7] . Frank i. Michelman, brennan and democracy:  the 1996-97 brennan center symposium lecture, 86 cal. L. Rev. 399, 400 (1998) [hereinafter michelman, brennan] ; accord frank i. Michelman, living with judicial supremacy, 38 wake forest l. Rev. 579, 588 (2003) [hereinafter michelman, judicial supremacy] (stating that the term “constitution” includes “a table of who—how identified or selected, acting by what procedural forms—gets to lay down the law and apply it decisively” and “some set of legal limits and constraints on what may or must be laid down as law by legal authorities”).

[8] mukti fajar nd, yulianto achmad, 2013, dualisme penilitian hukum, yogyakarta, pensil komunika, p. 34.

[9] hardijan rusli, 2006, metode penilitian normatif, jakarta, gramedia pustaka utama, p. 50.

[10] mahajan v. D, jurisprudence and legal theory 5^th ed: lalbagh lucnow: eastern book company law publisher (1987) pg 225

[11] ibid.

[12] nkobogo j, (op.cit) pg 13

[13] (1965) air sc 1887

[14] see willis v baddeley [1892] 2 qb 324

judges make law

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