This is the process by which rights and duties are determined in the legal order. There is a clear separation between the Legislature, Executive and Judiciary. The central idea in this doctrine is to make sure power is not concentrated in the hands of one arm of government and to ensure checks and balances among the three arms of government. But it has also been noted that the doctrine does not mean strict compartmentalized separation as their functions may overlap. For example, though it’s the main duty of the Legislature to make laws, the executive and judiciary may also make laws in certain instances.
The Judiciary is saddled with the responsibility of interpreting laws; it makes pronouncements on the legality and propriety of actions. It has therefore been suggested that in order to effectively carry out this function, the independence of the judiciary must be guaranteed.
The judiciary is mainly concerned with justice according to law. Here, the rule of law plays a prominent role in the attainment of justice as no one is seen above justice and the rule of law. As Lord Denning noted in Gouriet v Union of Post Office Workers: “Be you ever so high yet the law is above you”.
The Vending Machine Theory is one where the entire judicial process revolves around the law. The judge gives his verdict based on a rule of law and he is not allowed to alter the law (whether good or bad) to prevent assuming the key function of the legislative arm.
It is imperative that judicial decisions are obeyed for the clear reason that everybody is subject to the law. The judiciary derives its powers from the constitution which many regard as the grundnorm in the legal order. The constitution itself is the product of a social contract between the sovereign and the governed. Where confidence is lost in the judiciary, the result is chaos and anarchy.
It has been argued that the judiciary in the course of carrying out their primary duty (interpreting the law) makes laws without encroaching on legislative powers. The power to make laws exercised by the judiciary is conferred on it by Constitution which vests in it judicial discretion (S. 6, 1999 Constitution). The concept of judicial discretion gives the judge a wide spectrum of space to make laws. This is why some jurists have argued that though it is the main responsibility of the Legislature to make laws, it is emphatically the province and duty of the judicial department to say what the law is (Marbury v Madison). Lord Denning argues that it is only timorous judges who refuse to fill a gap created by the Legislature. Frankforter believes a judge interprets the law to the best of his knowledge and his decision is supposed to be an end to litigation (res judicata). See the Awolowo v Shagari case where two-third of nineteen states was said to be twelve.
Central to this topic is the concept of judicial precedent which is to the effect that once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts. Judicial precedent is based on stare decisis. The judicial hierarchy is also relevant in the sense that lower courts are bound by the decisions of the highest court of the land though they may refuse to follow such law if the facts before them can be distinguished from those adjudicated on by the Supreme Court.
Apart from the constitution, the courts must also justify its decisions via legal reasoning methods (inductive and deductive). The system of adjudication in common law jurisdictions is also adversarial (which frowns at judges delving into the arena) as opposed to inquisitorial (which allows judges delve into the arena by asking the accused questions for example in a prosecution). As a result of this judicial reasoning, the court’s verdict is seen as authentic especially since the test is that of a reasonable man. The distinction between ratio decidendi and obiter dictum must also be noted. The former means the rationale for the decision while the latter means an incidental remark made by a judge which is not essential to the decision and therefore not legally binding as a precedent.
On the issue of justiciability, we mean it is not everything that should go to court. Thus, the term refers to the types of matters the courts can adjudicate on. There is a filtering system which deals with matters which deserve judicial ventilation. Professor Lon Fuller makes a distinction between legal matters deserving judicial ventilation and polycentric disputes (e.g. pollution and labour matters) which should go to arbitration as they are not amenable to judicial resolution.
For the court to entertain a matter before it, the plaintiff must show that he has sufficient interest in the matter as the law frowns at class interests. In other words, there must be a triable issue. The party bringing the action to court must have the right to be heard (locus standi) and the court must have the authority to administer justice in the case before it (jurisdiction).
It is trite at law that the court will not concern itself with political matters which must be resolved politically. The political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison. In that case, Chief Justice John Marshall drew a distinction between two different functions of the U.S. Secretary of State. Marshall stated that when the Secretary of State was performing a purely discretionary matter, such as advising the President on matters of policy, he was not held to any legally identifiable standards. Therefore, some of the Secretary's actions are unable to be reviewed by a court of law. The doctrine is grounded in the federal judiciary's desire to avoid inserting itself into conflicts between branches of the Federal Government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision. The case of Baker v. Carr established the right of federal courts to review redistricting issues, which had previously been termed "political questions" outside the courts' jurisdiction. See also Badejo v Minister of Education.
It is also trite at law that the subject-matter of litigation must have ripened enough to warrant the court’s intervention otherwise the court will treat it as academic, speculative and imaginary and therefore strike it out since the court doesn’t make vain orders. The conflict will be said to have ripened where the applicant’s rights have been, are being or are likely to be contravened. See Conway v Rimmer and Duncan v Cammel Laird.
As regards judicial interpretation, courts have a duty to discover the intention of the Legislature through the draft documents. Here precision is of paramount importance. The court is expected to act within the four corners of the walls of a statute; anything outside amounts to constructing the statute. In trying to decipher the intention of the legislative arm, the courts may employ a purposive approach where it looks at the history of the legislation and can make reference to extraneous materials. The opinions of text-writers and judicial pronouncements are all relevant in this regard. In Common Law countries, judicial decisions carry more weight while in civil law countries, premium is placed on opinions of text-writers and scholars. Scholars like Fuller and Kelsen have noted that in interpreting laws, the courts should put themselves in the position of the Legislature. They make a distinction between the core and the penumbra. By core and penumbra, they mean that in the interpretation of legal rules, there are some situations which will seem to fall within the rule (core) while others will be doubtful (penumbra). Where there is a penumbra, the court will apply its own meaning at his discretion to give the law a meaning. Thus, in hard cases, it is the judge that makes the law. One example that comes to mind in this regard is the Awolowo v Shagari case where the Supreme Court interpreted two-third of nineteen states to mean twelve states. The court in that case seemed to have introduced another factor in Nigerian jurisprudence.