ABSRACT
Separation of Powers as it is widely known all over the world is a system of government in any modern state are distinct and duly separated from one another. Those who propounded the doctrine, in a bid to stop dictatorship rules, presupposed a situation where the legislator does not perform the function of the judiciary, and vice versa. The aim of this work is to show that separation of power in this strict sense is quite impracticable in any modern state. The doctrine as postulated does not consider situations where it is quite expedient for the arms of government, especially the judiciary and legislature to interact save situations which are necessary for check and balances of the organs. The doctrine as stipulated did not consider a situation where due to the urgency of the matter i.e. for the judiciary to do justice to the parties immediately before it and also the fact that the judiciary, in the exercise of its functions i.e. in its interpretation of and pronouncements on laws, it must act as a law maker in various degrees.
It’s been generally accepted that only a supernatural being or one with the supernatural being dwelling within him can foresee what the future holds. Legislators aren.t gods and can.t know the extent of human endeavours in the nearest future. This work intends showing how impracticable the doctrine of separation of power is, especially as between the judiciary and the legislature. It shows how Judicial decisions are potential laws as legislators have responded to decisions of courts either by incorporating them into laws or expunging their effects, how Judges make the letters of the Law, act by inquiring into the intentions of the legislature while making the various laws; how judges are the major determinant of what law should apply in a particular matter; how judges are the major determinant of what law should apply in a particular matter; how judges even determine the constitutionality of laws made even by the legislators.
This work doesn’t intend declaring that it is right for organs of government to perform the functions of one another, but that overlaps in some functions is and has been deemed necessary, if this isn’t so, the major purpose of the refusal of the concentration of power in the hand of one person will be defeated as the law having gaps and unable to attend to the vagaries of lives of the people will do as much harm as it would if or when there is concentration of all government powers in just one person. This work intends submitting that the law making power exercised by the judiciary is not an encroachment on or an usurpation of the legislative role of the legislature but helps in achieving the purpose the doctrine of separation of power is expected to fulfil in the first place. This work intends stating the principles by which the court should perform it’s law making power as this power is not absolute as it seems.
