What is a judicial precedent? The concept originated in Ancient Rome, came from the Latin "praecedens", which means "previous". In the traditional sense, judicial precedent refers to the fact that the courts take into account when considering pending cases the decisions of the higher court in similar cases, which in this case take the force of the source of law and become binding on the courts.
Such a position has long been preserved (starting from the 13th century) in foreign law - Great Britain, New Zealand and other countries of general or continental law, which was originally formed as an unwritten public law "common law".
However, it should be emphasized that it is not the decision on a specific case that is binding, but the doctrinal conclusion made in the special part of the decision of the highest court, which extends its effect to an indefinite circle of persons and situations. Thus, the judicial precedent provides the implementation of the principle of thinking of lawyers in common law - the direction of the movement of thought from private to general.
Modern Russian legislation places the precedent for judicial precedence laid down in the country's main law - the Constitution - the principle of separation of powers in the state into executive, as well as legislative and judicial.
According to this principle, no
branch of government should fulfill the functions of the other two, which is achieved, according to domestic legislators, the most effective, transparent and democratic construction of state power. Based on this, the judicial authorities do not have the right to become lawmakers, performing the functions of parliament and making decisions binding on the courts in the future. Therefore, the judicial precedent in Russian law is not officially related to the
sources of law . However, in Russian law, the practice of court cases has its undoubted role, since its study is the basis for the formation of a common judicial position. At the same time, from the point of view of some authors, the activity of the Constitutional Courts in issuing decisions on the recognition of legal acts as relevant or contrary to the Constitution brings their functions as close as possible to the legislative ones, existing on the verge of violating the principles declared by the Constitution. The fact is that such decisions contain a clear and consistent position of the Constitutional Courts, which becomes mandatory for law enforcement, thereby, in essence, acquiring the features of a source of law. In addition, in the process of making decisions on the inconsistency of certain legislative norms of the Constitution, this court is empowered to decide on the cancellation of their actions and even on filling them with other content. Opponents of this theory claim that the decisions and legal positions of the Constitutional Court are not a judicial precedent, since they do not act as independent norms, but are based on the direct force of the country's main law.
Moreover, the recognition by a judicial
precedent of the legal positions set forth by the Constitutional Court in its decisions, in itself violates the
principle of separation of powers and is therefore unacceptable. It seems that at present, a transitional period takes place in the development of domestic law, during which the Constitutional Court (as a body included in the judicial system), in fact, partially fulfills the functions belonging to the legislative branch of power, creating judicial precedents.