Russian jurisprudence borrowed the concept of "sources of law" in Roman. There are many meanings of this term. But when they mean the sources of civil law, they mean a mandatory form of expression of its norms. Their enforcement and legal significance depends on whether they are established and recognized by the state. Only in this case can they be used to resolve relations. When the sources of civil law are not formally recognized, their norms are not binding on everyone and legal force.
In the legal systems of modern developed countries, the main form (that is, the source) of law is laws. They are the normative acts with the highest legal force. But the Soviet legislative system was affected by the lack of market relations. For this reason, regulations approved by the state were considered the only form of civil law.
Along with the country's entry into the world economy, it became necessary to take into account international legal provisions in its legislation. Thus, the sources of civil law of the Russian Federation should include both internationally recognized principles of international and its norms, as well as those agreements that the Russian Federation concludes with other countries.
In the area of property turnover, custom has always played a role. True, in Soviet jurisprudence it did not matter the source of any industry, although some references to this can also be found there. The transition to a market economy has revived this concept, which is reflected in the new legislation. In fact, another form of civil law has appeared. This was due to the increasing use of custom in operations with property.
It is clear that sources of civil law other than laws carry a certain risk. After all, their recognition is far from always fixed clearly and formally. When establishing the meaning of the norms in a particular case, arbitrariness of the courts and disagreements between interested parties are possible. It is for this reason that the rules of morality and morality cannot be included in the sources of civil law, despite the fact that many of them still form the basis of most laws. But since they can be used to clarify certain points through logical interpretation, they need to be maximally formal and concrete.
In the legislative system of England and America, the main form of law is judicial precedent. This is the sentence that a court adjudicates in a particular dispute. In Russia, he is not formally included in the sources of civil procedural law. True, sometimes it is nevertheless applied in the practice of resolving disputes through the courts. Precedents on some issues are published, which determines the conditions and procedure for the application of laws, thereby greatly facilitating their application in resolving disputes.
The civilistic doctrine, which is the interpretation of the law by scientists, formulated in the form of conclusions, is also not considered a source of law. It is not binding. The court may take these findings into account on behalf of the competent, or take them as the basis for amending the laws, but they do not have legal force.
Also, local acts or individual acts cannot be ranked as sources of law if they do not come from the authorities and do not prescribe binding norms for all.
Often legal entities establish their rules, regulations, documents and contracts within corporations. Submission to them can only be voluntary, they are mandatory only for those people who are members of the organization and agreed to abide by them.
Thus, there are only three types of sources of civil law:
- regulations or laws;
- international treaties, including with the participation of Russia;
- customs that are recognized and fixed by law (for example, the custom of business circulation).