Erosion of the philosophy of positivism through judicial activism: Emerging trend in the principle of judicial precedent in Nigeria

Abstract Positivism, regarded as a reaction to the weaknesses of Natural Law, is a philosophy that denies the reality of metaphysics, regarded as unintelligible and scientifically untestable apriori or the ought standard. This is the basis on which Austin insisted that law and other indices of value judgments have no meeting point thus informing Kelsen’s pure theory of law. This also forms the basis on which the Nigerian Constitution claims superiority over every other law, voiding all other contrary norms, and the principle of separation of powers under the Nigerian Constitution. However, recent judicial activism by Nigerian Courts seems to challenge the timeless values of positivism, including the principles informing judicial precedent and limiting judicial function to the interpretation of Statutes. This paper by doctrinal approach found that although the trend, the world over, seems to move from whether Judges make laws to how far they should make an incursion into legislative function yet the extent to which Nigerian Courts now go may challenge the Constitutional framework of the Nigerian State. The paper thus warns and recommends that Nigerian Courts must thread this new path cautiously, by avoiding politically sensitive terrain that may complicate the already embattled image of Nigerian Judges.