DO JUDGES MAKE LAW? A LOOK AT THE NEVER DYING QUESTION

ABSTRACT It is common knowledge that the age long principle of separation of powers allocates the governmental functions of lawmaking, law implementation and law interpretation to the legislative, executive and the judicial arms of government respectively and each arm is to function independently without unwarranted intermeddling. 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 appears 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 effectively judicial functioning is inevitably linked to legislative functioning. The differences between what it can do and what judges can undertake are important in accessing the political rule which the latter play in their rule creation. The issue is whether the judges perform a task which though less exalted is fundamentally similar to that of legislature or whether the limitations imposed on their work are such as to make it different in character, as said in Austin’s theory there is no place for a judge made law. This work touches the practical and legal stand on the issue whether judges make laws giving cognizance to ex cathedra statutory and judicial authorities alongside scholarly arguments relevant to the issue.