Legal precedent is the main source of law. Legal precedent as a source of law, its types, concept

Legal precedent (legal practice). It is a more common source of law than legal; custom. He met back in Ancient Rome, dominated in the Middle Ages. Currently plays a major role in England and in countries in which the so-called Anglo-Saxon, or common law, has developed.

A legal precedent (judicial or administrative) is a decision on specific case(judicial or administrative), which became a model for the consideration of similar cases in the future.

A precedent appears when the case requires legal decision, A required norm not in the legislation. In this case, the judge (or official executive body authorities) or the full court (or the state body as a whole) makes a decision on the case. At the same time, they should not make a decision from scratch or in accordance with the mood of the judges (or officials). They are obliged to be guided by the principles of law, the provisions of legal science, their worldview, legal consciousness, prevailing in society moral values, finally, life experience. If this decision turns out to be a standard for resolving similar cases, then it becomes a precedent. However, this requires sufficient awareness of this decision. This is usually achieved when a decision is made by a court highest authority and is published.

Case law (also called judicial law) has many merits and is used quite widely today for the following reasons:

1. precedent is the result of logic and common sense, the use of which, as a rule, leads to an adequate and accurate settlement of a particular case;
2. the precedent is very persuasive because the arguments in favor decision taken accompanied big amount evidence;
3. the precedent is characterized by significantly greater dynamism than normative act: after all, a judge in his decision is able to reflect the changes taking place in life.

But case law also suffers from shortcomings. Here they are:

1. a precedent does not have the authority, and therefore the binding nature, that is inherent in a normative act;
2. precedent allows for the possibility of arbitrariness;
3. The scope of the precedent is not defined.

However, these shortcomings do not allow us to reject precedent as a source of law. They only emphasize that moderation must be observed in the use of legal precedent.

Introduction

Legal precedent (judicial practice) - more common in modern world source of law than legal custom. "Legal precedent means judicial or administrative decision in a specific case to which the state attaches generally binding significance."

In other words, a legal precedent is not following a general rule, established by the norm law, but a norm formed as a result of the practice of resolving similar cases. There is a distinction between judicial and administrative precedent.

Judicial precedent, of course, cannot replace the judge’s deep, objective approach to each specific case. But a precedent is quite capable of serving as a basis, a guiding principle, and also facilitating a faster response to a particular situation.

The establishment of a precedent on Russian soil is currently one of the widely discussed issues. Opinions vary widely - from complete support of this idea to categorical denial. Despite all the popularity, this problem does not exist common approach even to understanding the phenomenon of precedent - this category includes very heterogeneous phenomena.

1. Precedent as a source of law

Although England is considered the birthplace of judicial precedent, it appeared much earlier. Judicial precedent was recognized as a source of law back in Ancient Rome. Originally, the precedent was binding on the magistrate who made the decision while he held office. However, gradually the rules formulated by the praetors developed into a system mandatory rules- praetor's right. Many institutions of Roman law developed on the basis of court decisions.

Judicial precedent, widespread in the Middle Ages, gradually loses its importance in modern times, playing a major role only in England, the USA and other countries where Anglo-Saxon common law became widespread.

Thus, homeland case law England is still considered, since it received the greatest development in this country and British law was created by the courts.

According to the most common legal literature countries common law» By definition, case law is the law consisting of rules and principles created and applied by judges in their decision-making process. Case law is primarily associated with the activities of the courts in England, where centralized royal courts contributed to the creation of a single law common to the entire country. Specifics English law does not consist in precedent as such, when previously made decisions are taken into account when considering controversial issues. Precedents of this kind played important role in the development of almost all legal systems and have not lost their importance today. It's about about the effect of the doctrine of precedent, the essence of which is the obligation of courts to follow court decisions more high level. So on the basis of this in England it developed next system following precedent: firstly, decisions made by the House of Lords are binding on it, as well as on all other courts; secondly, the decisions rendered by the Court of Appeal will be binding on all courts except the House of Lords; thirdly, decisions made by the Supreme Court are binding on all courts at a lower level. From this we can conclude that the higher the position of the court, the less they are bound by precedents.

The entire system of common law is characterized by the fact that the courts act as law-making bodies; they “discover and fix established rules of conduct, which become law due to their general significance and which, due to this general significance, must be recognized by state bodies” (courts) as legal.

Not everything is necessary in a precedent previous solution, but only the essence of the legal position of the court that made the initial decision or sentence. Characteristic feature case law is also that all subsequent decisions can make individual changes into a previously formed precedent, which in turn also become a rule of law.

Most main feature case law is its unwritten nature. Unlike written norms, the norms of unwritten law do not have a certain clarity and specificity, and it is more difficult to establish control over their adoption and implementation. “In the absence of a written text, it is very difficult to clearly determine the content of unwritten norms and to trace the entire mechanism of their creation.” This complicates the process of applying these standards.

A condition for the operation of a system of precedents is the availability of sources of information about precedents, that is court reports. But the publication of court decisions in court reports does not yet mean that case law becomes written. “Court reports only help judges in constructing their reasoning, but do not provide a ready-made rule. The publication of court decisions has made the work of lawyers easier, but the process of developing a precedent rule has remained the same.

With regard to judicial law, the starting point is the rule enshrined in the Digests of Justinian, according to which a judicial position was recognized if it was confirmed by several judicial decisions. The test of time was the best proof of the validity of the introduction of a legal provision and a guarantee of its stability.

There are two types of judicial precedents: declaratory and creative. Declaratory repeat already existing standards rights or give their interpretation. Creative - fill the gaps in legislation and thus create new normal. In any case, the decision or sentence of the court becomes binding on lower courts and, as a rule, for ships of the same level. In this case, not the entire court decision is binding, but only that part of it, which is called “The principle underlying the decision.” This principle the judges will follow. Along with integral part a court decision is (incidentally said), that is, an inference, either based on a fact, the existence of which was not the subject of consideration by the court, or, although based on the facts established in the case, but does not constitute the essence of the decision.

Of all judicial practice Only those decisions made by a majority vote of the court members can be precedents. If the opinions of the judges are divided, then each judge expresses his opinion, but such opinions may become the majority opinion after some time.

A large number of precedents allows judges to select precedents that are suitable for resolving a particular case, while the most important one stands out from the entire court decision. general norm. The choice of precedent is made on the basis of a comparison of the facts underlying the case under consideration, for which the precedent was established.

In England, the principle of strict adherence to precedent has developed. This is most clearly manifested in the rule according to which the authority of old precedents not only is not lost over time, but, on the contrary, increases. In other countries (except England), the precedent is applied differently, with varying degrees strict adherence to the rule of precedent. So in the USA the rule of precedent operates less rigidly, due to the peculiarities federal structure countries. First, the US Supreme Court and state supreme courts are not required to follow own decisions, and can thus change their practice. Secondly, the states are independent and the rule of precedent applies to the competence of the states only within the limits judicial system specific state.

Now I would like to note: that when using a court decision as a source of law, not the entire decision or sentence is binding on the courts, but only legal position judge on the basis of which the decision is made.

Each court decision contains the following components.

Establishment material facts cases, direct and derivative.

Presentation legal principles, applicable to legal issues arising from specific circumstances.

The judge's conclusion based on the first two parts.

For the parties themselves and interested parties The 3rd part is the main one, as it finally establishes their rights and obligations in relation to the grounds of the case. However, from the point of view of the doctrine of precedent, the most significant element in the decision is part 2. This is the crux of the matter, or, as Anglo-Saxon experts call it, legal system, "ratio decidendi". The rest of the decision is "obiter dictum" (incidentally said) and is not binding on the judges. It would be a mistake to think that obiter dicta has no force of precedent at all. It is not mandatory, but only a convincing precedent. When legal reasoning comes from a higher court and is a well-thought-out formulation of a rule of law, rather than a random opinion, then "what has been said" is generally followed, unless of course there is a binding precedent to the contrary.

Another type of persuasive precedent is the decisions of courts that are lower in the hierarchy than the court that is asked to follow these decisions.

In relation to the law, precedent is in a “subordinate” position. This is manifested, in particular, in the fact that the law can cancel the effect of a court decision, and in the fact that any legislative act, adopted by the authorized body and in accordance with established procedure, must in mandatory recognized and applied by the courts. The court itself, when creating a precedent, must act in strict accordance with the law.

The nature of case law is such that it cannot fully develop a number of properties of law, such as, for example, systematicity. However, case law has a number of positive features - a high level of certainty and normativity, as well as dynamism.

Unlike common law countries, in continental European countries the attitude towards judicial practice was not unambiguous. Legal systems of Romano-Germanic legal family for a long time based on the concept that court decisions are binding only on the parties involved in the case. This is due to the fact that for a long time they were dominated by the idea of ​​the rule of law, written law, supported by real practice. But at the same time, judges, faced with a gap in the law, could not directly fill it, and were forced to turn to the law, giving it a broad interpretation in order to apply it as a basis for making a decision, which led to the formation of a new rule. Sometimes it is difficult to determine where interpretation ends and begins. judicial discretion. As a result, a dual situation arose: on the one hand, judicial practice began to play an important role in the development of the legal systems of Continental Europe, on the other hand, it was not always recognized as a source of law.

In order for the law to successfully implement its functions, it must have its external expression. by the form expressing the will, he means the norm. It is this that is the legal source. Typically, in theory, four types are distinguished: judicial precedent, agreement, regulatory legal act and sanctioned custom.

Judicial precedent as a source of law

Many countries highlight precedent as the most important. The existence of judicial precedent suggests that in such countries they are engaged in law-making activities.

A judicial precedent is a court decision that changes, establishes or repeals legal norms, made according to specific business. It is mandatory for the same or lower authority when studying similar cases, since precedent has the force of a source of law. In this article we will consider in detail everything that relates to this concept.

Example of judicial precedent in Russia - interpretation Constitutional norms Constitutional Court. This is done by checking the compliance of laws, decisions of the Plenum of the Supreme Court, the Supreme Arbitration Court, etc.

Judicial precedent: origin, example

So what is it? Judicial precedent has been known since ancient times. What did it look like? In Ancient Rome, precedents were decisions in the cases of praetors, as well as masters. They also belonged there oral statements. Initially, precedents for considering similar cases had binding force only for masters who accepted them and within specific period. Gradually, some of the most successful edicts acquired a stable character and became generally binding norms - this is praetor's law.

In the Middle Ages, the use of precedent was also widely used. The capture of England in 1066 led to the creation of a law common to the entire country. Royal traveling courts began to be created. They settled disputes on behalf of the Crown once they arrived on site. Gradually accepted by judges decisions began to be taken as a basis when considering similar cases by other authorities. This is how the common situation for England developed one system- a judicial precedent, the practice of which began to number hundreds of different cases.

Development of precedent in Russia

Our precedent received a mixed assessment. IN pre-revolutionary Russia some practitioners and theorists recognized the phenomenon in question as a source of law. At the same time, they noted that it plays an auxiliary or additional role in relation to the law. Other theorists and practitioners, on the contrary, did not distinguish precedent as an independent legal source.

Post-revolutionary Russia in the domestic legal science continued not to recognize the concept we are considering as a form of law. Legal theorist R.Z. Livshits explains this with the normative approach to Soviet legal science and to the understanding of law.

Since 1985, progress in people's lives has led to natural changes in the legislative body of government. This happened because the normative approach ceased to be relevant. This fact influenced the recognition of judicial practice as a legal source.

Abroad

Let's consider the place of judicial precedent in other countries. Currently, judicial precedent is one of the main legal sources in the legal systems of the UK, USA, Canada and other countries. Almost a third of the world still lives according to the principles established in English law. The concept in question plays a significant role in the creation of European law.

Countries with the same legal system may apply judicial precedent in different ways. For example, legal precedents in England are strictly followed as there is a clear rule. In the USA, on the contrary, the rule of the concept in question is not strict due to the peculiarities of the federal structure of this country.

Setting a precedent today

A court decision can be used as a judicial precedent in the Russian Federation. We will consider an example of such a phenomenon in this subsection of the article.

This may be a judicial decision, which leads to the fact that not the entire sentence or the entire decision is binding on the courts, but only the legal position taken by the judge, on the basis of which the decision is made.

Although from the standpoint of the doctrine of precedent, the most significant element in the decision is the second part. It is there that the essence of the matter is stated. The remaining parts of the decision are not considered binding for judges, but are a convincing precedent. Consequently, legal argumentation coming from a higher court, which is a thoughtful formulation of a rule of law, is usually an example. But there is an exception. We are talking about cases where there is a precedent of an opposite nature in a similar case.

Also, a convincing example of a judicial precedent can be a decision of a court located in the hierarchy below the body that is asked to make a similar verdict.

Components of a court decision

The court decision contains several components.

1. Determination of existing direct or derivative facts of the case.
2. A statement of the legal principles that apply to legal issues arising from certain circumstances.
3. The judge's conclusions in the case based on the first two parts. They are the third part. It is for the parties important factor, as it establishes obligations and rights in relation to the grounds of the case.

Judicial precedent in relation to the law

In relation to the law, judicial precedent is in a position of a subordinate nature. What explains this? The law can overturn the effect of a court decision. Therefore, any legislation passed in in the prescribed manner, is binding for application by the court. The relevant authority is obliged to act taking into account accepted rules, creating a legal precedent. Examples in Russia of this phenomenon in relation to the law are numerous. For example, the existence of a judicial precedent based on the rules of law in a specific case. Later, these norms are canceled or changed. Therefore, the judicial precedent cannot be applied further.

Russian case law has a number of positive characteristics: dynamism, normativity and certainty.

Legal precedent in England

English case law occupies a central place in the legal family. This is due to the fact that the court, when studying the materials, determines whether a similar case has been considered before or not. If there was anything similar, then when making a decision, the court is guided by the previously adopted verdict in a similar case. What does it mean? A decision once made is considered a binding norm for subsequent similar cases. At the same time, there is a hierarchy of the court, on which the degree of binding precedents depends. This is also given close attention. Judicial precedent is the dominant source of law in England. There are about eight hundred thousand phenomena under consideration. And their number is increasing every year.

Organization of the English judiciary

In England, the highest court is the decision made in it, which is binding on other courts.

The appellate court includes two divisions (criminal and civil). The court is bound by its own precedents and those of the House of Lords. Decisions are binding on lower legislative bodies.

The High Court, including all its branches, must be guided in its decision by the precedents of two higher authorities. Verdict high court obligatory for lower authorities.

The lowest courts are the Magistrates' and District Courts. They must follow precedents higher authorities. District and magistrates' court decisions do not set their own precedents, and neither do Crown Court verdicts.

Not covered by criminal law whole line institutions of the general part, as it is established by judicial precedents in England. Examples of some of the phenomena discussed are related to McNaghten's rules. They contain criteria for insanity that are absent in English law.

Legal precedent in the USA

Since the US legal system was formed on the basis of the laws of the Anglo-Saxon legal family, the main source is judicial precedent. It is an important link in legislation. Case law presupposes the existence of a hierarchy in the system of precedents. Simply put, decisions made by a higher court are binding on lower authorities.

Being in constant motion, they are created and determined by representatives legislative systems judicial precedents in the USA. Examples of decisions made in specific cases are subsequently applied to other similar cases. If one of the parties does not agree with the decision made by the judge, then a representative of a higher authority is obliged to consider the case in accordance with the provisions of the previous judicial precedent in a similar case.

Example of precedent in the USA

Let's look at one well-known example of US judicial precedent. This is the Miranda rule. The history of its appearance began in 1963 in Arizona. There for committing criminal act Ernesto Miranda was taken into custody. This man voluntarily confessed to committed crime. But since he was not informed about his procedural rights, Supreme Court The United States ruled that in such a situation a voluntary confession is not evidence of guilt. committed act. This is where the rule was born, according to which the suspect must be informed of his procedural rights. Only then will his confession serve as proof of guilt.

The Miranda Rule is found in a system that is included in numerous legal precedents in the United States. Examples of another phenomenon under consideration contain a rule prohibiting school administrations from interfering with the expression of students' opinions. This rule appeared during the Vietnam War. Then one of the Iowa school students put on black armbands, symbolizing protest against the fighting. In response to this expression of their opinion, the school administration issued an order that prohibited the wearing of this paraphernalia. The US Supreme Court considered the decision a violation After this this norm became a precedent.

Russian example

Let's consider an example of a judicial precedent in Russia. They can serve as a decision of higher courts in relation to lower authorities. Verdicts of higher authorities are not binding. But unofficially they represent a judicial precedent. Examples in Russia of the phenomena under consideration may relate to criminal, civil, administrative and other cases.

For example, regional court made a decision in a criminal case. Later, a similar case is considered by the district legislative body. When making decisions, lower courts most often use the practice of higher authorities. It is precisely this that represents judicial precedent as a source of law. Examples can also serve as precedent. For example, the phenomenon under consideration concerning alimony obligations children.

In some countries wide application finds such a source of law as legal precedent. Its essence is that the solution judicial authority in a specific case it becomes official general rule, serves as a standard for resolving similar cases by other courts example interpretation of the law (interpretation precedent).

Legal precedent is an ancient source of law, its meaning varies in different periods of human history in different countries. It was widely used in states Ancient world, in the Middle Ages. Thus, in ancient Rome, decisions of praetors and other magistrates were recognized as binding when considering similar cases. In general, many institutions of Roman law were formed on the basis of judicial precedents. However, legal precedent in modern form arose precisely in England after William the Conqueror captured this country in 1066. Starting with the reforms of Henry II Plantagenet (XII century), traveling royal judges began to appear who made decisions on behalf of the crown. Initially, the group of cases within the jurisdiction of these judges was limited, but over time, the scope of their competence expanded significantly. The decisions developed by the judges were taken as a basis by other courts when considering similar cases. The law that was formed during the emergence and streamlining of an integral system of judicial precedents, uniform for all of England, as well as other sources of law, came to be called common law.

Currently, this source of law is used in England, USA, Canada, Australia, etc. In all these countries, court reports are published from which legal (judicial) precedents are extracted. Judicial decisions around the world have authority, and the synthesis of judicial practice by the highest court of the country can have a positive impact on right-implementation. In some countries, this provision of judicial practice is enshrined in legislation. However, beyond specified countries Where case law applies, court decisions do not act as sources of law.

Legal precedent as a source of law is characterized by casuistry, plurality, inconsistency, and flexibility.

Casuity. A precedent is always as specific as possible and close to the actual situation, since it is developed on the basis of solving specific, isolated cases - incidents.

Plurality. There is enough a large number of authorities that can create precedents. This circumstance, together with the significant duration of the latter (tens and sometimes hundreds of years), determines the enormous volume of case law.

Contradiction and flexibility. It was noted above that even among regulations issued by one government body, there are inconsistencies and contradictions. Moreover, it is not surprising that decisions of different courts on similar cases can differ significantly from each other. This determines the flexibility of legal precedent as a source of law. In many cases, it is possible to choose one option for resolving a case, one precedent out of several. Written law does not provide such a wide range of choice. However, in contrast to flexibility, sometimes such shortcomings of case law are pointed out as its rigidity, the binding of judges by decisions of similar cases that were once made, the impossibility of deviating from them even to the detriment of fairness and expediency.

So, a legal precedent is a decision on a specific case, which is mandatory for use by courts of the same or lower instance when considering similar cases.

Necessary reasons and the conditions for the functioning of precedent as a mandatory source of law are:

• the presence of a mechanism for the publication of court reports, which presupposes the well-known precedents;
• existence optimal system professional legal training;
• an effectively functioning hierarchical judiciary;
• the normativity of its content;
• recognition by the state.

Everything related to legal precedent can, with certain reservations, be attributed to administrative precedent. IN modern states increases legal meaning activities of numerous government agencies to solve the problems facing them. In this regard, administrative precedent also becomes a source (form of expression) of law, although it is used less frequently than legal precedent. This is the behavior of a government agency or any official, which took place at least once and can serve as a metaphor under similar circumstances.

As well as legal and administrative precedent in Russian Federation is not an officially recognized source of law. However, in the legal reality of our country one can find examples when practical activities State bodies (including the judiciary) create rules of conduct that operate alongside written law, specify, supplement, and sometimes abolish existing legal norms.

Neither from the point of view of the form of expression of the rules of behavior, nor from the point of view legal means, by which the state makes these rules legally binding, all the examples cited by supporters of the existence of a legal precedent in Russia cannot be compared with what takes place in the legal system of England. The only thing that unites all these Russian examples with legal precedent, is the presence in these processes courts, actually participating in formulating rules of conduct. However, the authorities judiciary the Russian Federation clearly lacks the necessary authority to give these rules the required official sanction. This can be done by an appropriate law-making body, which often takes into account existing judicial practice when creating new rules of command.

Higher courts in Russia it is no coincidence that the Constitution of the Russian Federation (Article 104) gives the right legislative initiative regarding their management, in connection with which they have real opportunity encourage the legislator to complete the process of making legally binding the rules of conduct formed with their participation.

Therefore, all cases where judicial or other administrative bodies in the course of the administration of justice, administrative powers or generalizations legal practice detail, specify, supplement or repeal existing legal norms, thereby contributing to the creation of a new order legal regulation, as initial stage the formation of new rules of law, the peculiar formation of judicial or administrative customs, which still lack the appropriate degree of state sanction. And only in the future can these customs be given legally binding force by the relevant law-making body.

Legal precedent

A legal precedent is a decision in a specific case, to which the state gives the force of generally binding force in subsequent disputes.

Judicial precedent is a very common form of law in the modern world. Legal practice in general and judicial practice in particular actually acquired the meaning of a source of law back in Ancient Rome. IN national science judicial precedent as a source of law was denied. The purpose of judicial practice was recognized as a means of shaping the legal consciousness of lawyers.

This source of law is widely used in Anglo-Saxon system rights. Thus, in Great Britain, law was created by the Royal Courts of Westminster, because common law is the law of judicial practice.

Judicial precedent is the source of law that best reveals the uniqueness of the Anglo-Saxon legal system.

The specificity of English law does not lie in precedent as such, when a previously made decision is taken into account when considering similar issues. It's about action doctrines of precedent, or stare decisis, the essence of which is the obligation of courts to follow the decisions of courts of a higher level, as well as the connection appellate courts by their previous decisions (except the House of Lords)

The condition for the operation of the system of precedents is availability of sources of information about precedents, ᴛ.ᴇ. law reports.

The doctrine of precedent stipulates special role courts in the formation and development of law. If on the European continent judges only apply legal norms, then in the conditions of case law, or common law, when making decisions or sentences, they either declare or create law, ᴛ.ᴇ. act as legislators. Some of the precedents (declaratory) repeat already existing rules of law or provide their interpretation. Others (creative) - fill in the gaps in legislation and thus create a new norm

In any case, the decision or sentence of the court becomes binding on lower courts and, as a rule, on courts of the same level. At the same time, not all court decisions are binding, but only that part of it, which is usually called ratio decidenti.

English law is characterized by the division of precedents into mandatory (or binding) and persuasive. If ratio decidenti is a precedent, then obiter dicta (motivation) can become one only due to its persuasiveness.

In England, the principle of strict adherence to precedents has developed. It is most clearly manifested in the rule according to which the authority of old precedents not only is not lost over time, but, on the contrary, increases.

At the same time, strict adherence to precedents does not at all exclude the possibility of canceling existing precedents. Thus, a higher court can reject the decision of a lower one, and in some cases, its own previous decision. At the same time, any legal norm must be changed by an Act of Parliament. At the same time, the canceled precedent has a retrospective effect, which negatively affects already established relations.

Researchers note the ambiguity of the “relationship” between law and precedent, because the law has priority in relation to precedent, since the latter must be abolished by a rule of law, and judicial precedent in relation to the law, which follows from the court’s duties to interpret acts of parliament. The supranational character of common law operating in large group English-speaking countries.

A feature of judicial precedent is its close connection with the actual circumstances of the case. The process of formation of case law proceeded by recognizing the fiction according to which a court decision always contains one or another rule of law that allows it to be evidence of its validity.

From the middle of the 20th century. precedent begins to make its way into the Russian legal system (powers Constitutional Court RF).

Taking into account the peculiarities of the action of judicial precedent over time, scientists identify three options for its application:

The new precedent applies only to legal relations that arose after its adoption (prospective action of the precedent);

A new precedent can be applied not only to legal relations that arose after its adoption, but also to the facts of cases that were pending earlier (the present prospective effect of the precedent);

The new precedent can be applied not only to legal relations that arose after, but also before its adoption (retrospective effect). In this case it is observed retroactive effect precedent.

In Europe, the established practice of the European Court of Human Rights is called precedent. The norms of the Convention on Human Rights and Fundamental Freedoms are not applied by the court separately from those decisions that were previously made by the Court on the application of this article or norm. When formulating any request in European Court, you must refer to current practice European Court.

Legal precedent - concept and types. Classification and features of the category "Legal precedent" 2017, 2018.