AN EXAMINATION OF THE ROLE OF THE JUDICIARY IN LAW MAKING IN NIGERIA
- Project Research
- 1-5 Chapters
- Qualitative
- Library / Doctrinal
- Abstract : Available
- Table of Content: Available
- Reference Style: APA
- Recommended for : Student Researchers
- NGN 5000
Background to the Study
The general purpose of law is to regulate human behavior by protecting lives and properties in the society. Human behavior is the potential and expressed capacity of individuals or groups in response to stimuli. It is the sum total of the overt and covert expression of human intention. Understanding of the psychology of human behavior, that is to say, a study of the science of human behavior, is paramount for human behavior regulation. For instance, motivation, emotion, personality, classical conditioning and stress, including nature (genetic make-up) and nurture (environment) are important factors in considering human behavior generally. The idea of law as the basis for regulating human behavior stems from the cause and effect theory of human existence and as an instrument of social control, owing to the social contract whereby people relinquish some of their rights and freedom to the state in consideration for protection of lives and properties. The absence of law in a society will result to anarchy and survival of the fittest, hence the need for law.
The basic function of the state (government) is good governance through the provisions of the basic necessities of life, harmonious and orderly society where justice and fairness reign. In the course for the advancement of human progress and good governance in the society, the state has developed various public policies of priorities and institutions to harness them in other to attain its primary purpose. One of the major manifestations of public policy is through the law making processes. Basically, there are various branches of government charged with the responsibilities of harnessing and attaining the purpose of the state, namely, the legislature, executive and judiciary. These institutions of the state enjoy separate and autonomous but interwoven relationship. Generally, the law making powers of the state resides in the legislature. The executive implements and enforces the law. The judiciary adjudicates and interprets the law. In the course of the exercise of its interpretive power, the judiciary make pronouncements or decisions which become binding on all and sundry. This becomes the basis of judicial precedent also known as judge-made laws (stare decisis). The court uses various approaches to interpretation in seeking the meaning and intention of the legislature which contribute to law making. Also, the court through its judicial powers such as mandamus, prohibition, review and injunction may steer or redirect the legislature to properly carry out its constitutional obligation(s).
Legislations are usually written in general or abstract terms to be applied in specific situations. More so, the meaning of words used in a legislation depends on the context, time and place they are used and might change over time. Moreover, the need to keep the law abreast with social realities, as an instrument of social engineering (control), might affect the interpretations which courts might give it. For these reasons and many more, the legislature may ensure that legislations are enacted in general or wide terms that are enough to cover unforeseen situations. As such, vague or ambiguous words used in a legislation might be the result of a compromise from the legislature to the courts to give them the meanings or interpretations that will best suit the intended purpose or execution of the policy priority.
There are disagreement among scholars with respect to the nature and scope of the role of the judiciary in law making. Textualists posit that courts do not make law owing to the separation of powers theory of law. They believe that the interpretive role of the court is to judicially and judiciously explore the direct and literal meaning of the texts of the law. Purposivists posit that courts should adopt an interpretation approach that will achieve the purpose of the
legislation.
Aside these, the interpretation which courts give to legislation would have serious implications to its implementation or enforcement. However, there is the concerned issues (challenges) of the nature and scope of judicial interpretive role to law making. Hence, this research work provides an insight into the role of the court in law making in Nigeria.
Statement of the Problem
In a constitutional democratic system of government, separation of power is a sine qua non for good governance. The doctrine of separation of powers requires the division of government powers among the various branches or institutions of government, namely, the legislature, executive and judiciary, in other to guarantee their independence. Sections 4, 5 and 6 of the 1999 Constitution of Nigeria provided for the division of government powers among the legislature, executive and judiciary. The legislature is charged with the obligation of making laws for the maintenance of peace, order and good government of the country. The executive is responsible for the enforcement of law for the maintenance of peace, order and implementation of government policies for good government of the country. The judiciary is charged with the duty of interpreting laws and adjudicating or settling disputes between persons, institutions or organizations. There is generally no rigid system of separation of powers among the various institutions of government. Each of these institutions interdepends on one other in other to be efficient and effective in the pursuit of the collective good governance of the people. Similarly, in the course of the court discharging its constitutional interpretation duties, it makes pronouncements which become binding on all and sundry (judicial precedent). This raises the question of how can judicial participation in law making through interpretation and application of other laws contribute to the realization of the goal of good governance.
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