Legal precedent as a legal phenomenon does not play a special role in the modern Russian state. However, for countries with an Anglo-Saxon legal model, it is crucial. A precedent is often used to fill gaps in the legislative system, as well as to formulate and amend new norms. Our article will describe in detail what a legal precedent is, what are its functions and features.
Definition
What is a use case? This concept in the legal field is characterized by the solution of a specific question posed for the first time. In the future, the decision may become a model for regulating similar situations.
It is known that in most countries of the world the regulation of public relations occurs due to normative acts. In Romano-Germanic legal systems, laws, by-laws, doctrines and customs have a special place. In states with an Anglo-Saxon structure, a precedent is added to the elements presented. It sets a new norm, while the general legislative principles remain the same.
What is a use case? This is a legal element that can modify, create and interpret existing rules. Thus, legal gaps and conflicts can very well be “healed” with the help of the phenomenon under consideration.
Use case features
To answer the question of what a precedent is, a description of its main features will help. The first and main sign of the phenomenon under consideration is casuism. A precedent is always developed in strict accordance with specific phenomena and deeds - in other words, incidents.
Government agencies in different countries often make mistakes in the development of a law. A precedent helps to fix existing legal problems. It turns out due to the second feature of the phenomenon under consideration - flexibility. It is worth noting that the precedent corrects the law automatically: often in the normative act no changes are even made. For example, an individual wants to resolve a civil dispute. In the process, a problem is discovered: a separate legal fact is not subject to consideration due to an error in the legislation. A person goes to court, where officials make the most optimal decision. Subsequently, this decision becomes binding. Here we should highlight the third feature of the precedent: its multiplicity. There are many ways to correct a normative act. However, most often the review takes place in court.
Use case principles
The phenomenon in question must comply with the laws of the country. Laws, in turn, are aimed at protecting and ensuring human rights and freedoms. At the same time, the precedent is often contradictory. Legislators cannot immediately understand whether a court decision complies with the law. So that such situations are formed as rarely as possible, you should always turn to the basic principles of legal precedent.
The first principle is similarity to legal custom. It is impossible to close the “holes” in the law without paying attention to the country's historical experience. The second important principle concerns the cooperation of different branches of government. So, the courts should engage in dialogue with representative bodies. Only cooperation between different political sectors will help to qualitatively resolve questions about what a legal precedent is, how to apply it and what the consequences will be.
Use case history
As already mentioned, the precedent system is characteristic only for countries with the Anglo-Saxon type of law. Moreover, the phenomenon under consideration was widely used in ancient Rome. In those days, there was the concept of "etiquette" - a set of moral principles. It was etiquette that praetors, judges and other magistrates constantly addressed. Roman edicts had to be constantly improved. This is how praetor law was formed - a system of generally binding requirements.
The question of judicial precedent originates in the Middle Ages. In England, during the time of William I, royal traveling courts began to appear everywhere. Due to the weak regulatory framework, cases were often resolved by analogy. Extensive jurisprudence was studied. Of the most frequent cases, norms were subsequently compiled.
Precedents in Russia
Having dealt with the question of what a precedent is, we should move on to the problem of applying the phenomenon in question in the Russian Federation. It should be noted right away that our state belongs to a group of countries with a Romano-Germanic type of law, and therefore a precedent cannot be a legal source.
Moreover, precedents in Russia are actively used, and according to the same scheme as in the Anglo-Saxon type countries. The Supreme Court, considering the accumulated legal framework, can make adjustments to some "problematic" acts. That is why our laws so often change their content: some norms are rearranged, others are eliminated, connected, etc.