Valeriy V. Lazarev1, Khanlar I. Gadjiev2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
Abstract. Judicial law is not officially considered as law in the Russian legal system. However, the doctrine and practice recognize its role as a mandatory guideline for resolving legal cases. Case-law includes a set of legal acts under different names issued by various authorities. However what is in common is that they are generally binding and normative, even if they are issued in connection with specific circumstances. According to the authors, the following judicial acts may be considered as a source of law in Russia: precedent decisions resulting from the examination of a particular case; decisions of cassation and supervisory authorities elaborating legal provisions and overcoming gaps in law; resolutions adopted by the Plenary Supreme Court of the Russian Federation; rulings and resolutions of the Constitutional Court of the Russian Federation. A precedent is typical among well-known sources of judicial law. But in the contemporary context, judicial customs and judicial contracts require thorough consideration. There are certain grounds to qualify judicial law as a separate branch of law. Therefore, we should analyze the way the content of the relevant acts is determined; in what specific clothes they are dressed; in what internal and external structures they fit; how, in what forms they are systematized.
The concepts of “form” and “source” are correlated and are often used as identical. But for a deeper understanding, we should focus on the volitional nature of law. Then it becomes clear that any will, the will of any subject is expressed externally in certain forms — in the form of a law, in the form of an executive or judicial act, in the form of a guiding explanation or an official review of practice, in the form of a doctrine. The word “source” may be used for designating where the norm or the legal position substituting it is contained, where knowledge about them is reflected, where their interpretation is made. Everything has its own internal structure, its verbal or even visual form of expression.
The authors proceed from the fact that the living conditions of society and the attitude of people towards them are constantly changing and, accordingly, taking into account the dynamism of legal forms and sources of law, they focus on the development of judicial precedent, tracing the evolution of its idea and its implementation not only in the Anglo-Saxon system of law, but also in the continental countries. They come to the conclusion that the law develops thanks to the creative efforts of judges, who must penetrate into the essence of law and fact and make the right choice of precedent or formulate a new one. The appeal to the precedent does not affect the principle of independence of judges, but, on the contrary, enriches it. The article analyzes the Russian sources of judicial law, in particular, it is stated that the precedent nature of the decisions of the Constitutional Court of the Russian Federation is considered a generally accepted achievement for the country’s legal system. The precedent has an intermediary role between practice and the law, when the realization of the right is expressed in the accompanying law-making function of the court. A comparative approach to the use of judicial precedent in different countries shows great creativity in upholding the value of the precedent.
Keywords: judicial law, source of law, form of law, precedent, doctrine, primary and secondary sources of law, independence of judges
For citation. Lazarev V. V., Gadjiev Kh. I. Main Sources (Forms) of Judicial Law. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 5—22. (In Russ.) DOI: 10.12737/jrl.2022.091