In order for the law to successfully implement its functions, it is necessary to have its external expression. Legal doctrine, under the form expressing the will, means the norm. It is she who is the legal source. Usually in theory there are four types of them: judicial precedent, contract, normative legal act and authorized custom.
Judicial precedent as a source of law
Many countries set a precedent as the most important source of law . The existence of a judicial precedent suggests that in such countries they are engaged in law-making activities.
Judicial precedent is a court decision made in a particular case that changes, establishes or repeals legal norms. It is mandatory for the same or lower authority when studying similar cases, since the precedent has the force of source of law. In the article we will consider in detail everything that relates to this concept.
An example of judicial precedent in Russia is the interpretation of the Constitutional norms by the Constitutional Court. This is done by checking the conformity of laws, the ruling of the Plenum of the Supreme Court, the Arbitration High Court, etc.
Judicial precedent: origin, example
So what is it? Judicial precedent as a source of law has been known since ancient times. What did it look like? In ancient Rome, precedent was decisions on praetors, as well as masters. Oral statements also applied there. Initially, precedents when considering similar cases were binding only for masters who accepted them and for a specific period. Gradually, some of the most successful edicts became stable and became generally binding norms - this is praetorian law.
In the Middle Ages, the use of precedent was also widely used. The capture of England in 1066 led to the emergence of law common to the whole country. Royal traveling courts began to be created. They resolved disputes on behalf of the Crown, arriving at the place. Gradually, decisions made by the judges began to be taken as a basis when considering similar cases by other instances. Thus, a common system for England was formed - a judicial precedent, the practice of which began to include hundreds of different cases.
Precedent development in Russia
The precedent we received was mixed. In pre-revolutionary Russia, some practitioners and theorists recognized the phenomenon under consideration as a source of law. However, they noted that it plays an auxiliary or additional role in relation to the law. Other theorists and practitioners, on the contrary, did not single out a 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. Theorist of law R.Z. Livshits explains this with a normative approach in Soviet legal science and in the understanding of law.
Since 1985, progress in people's lives has led to natural changes in the legislature. This happened because the normative approach has ceased to be relevant. This fact influenced the recognition of judicial practice as a legal source.
Abroad
Consider the place of judicial precedent in other countries. Currently, one of the dominant legal sources of judicial precedent acts in the legal systems of the UK, USA, Canada and other countries. Almost a third of the world still lives on the principles that were formed in English law. The concept under consideration 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, judicial precedents of law in England are strictly followed, as there is a clear rule. In the USA, on the contrary, the rule of the concept under consideration is not strict due to the specifics of the federal structure of this country.
Precedent Formation Currently
The court decision can be used as a judicial precedent in the Russian Federation. An example of such a phenomenon is considered in this subsection of the article.
This may be a court decision, which leads to the fact that the court is not obliged to the whole sentence or the whole decision, but only the legal position taken by the judge, on the basis of which the decision is made.
Although from the perspective of the doctrine of precedent, the most significant element in the decision is the second part. It sets out the essence of the matter. The remaining parts of the decision for judges are not considered mandatory, but are a convincing precedent. Consequently, the legal argument emanating from a court of a higher rank, which is a well-thought-out wording of the rule of law, is usually an example. But there is an exception. We are talking about cases where there is a precedent of the opposite nature in a similar case.
Also a convincing example of a judicial precedent may be a decision of a court hierarchy lower than the body that is invited to adopt a similar verdict.
The components of the court decision
The court decision contains several components.
- Definition of existing direct or derivative facts of a case.
- A statement of legal principles that apply to legal issues arising from certain circumstances.
- Judge's conclusions based on the first two parts. They are the third part. It is an important factor for the parties, as it establishes obligations and rights in relation to the grounds of the case.
Judicial precedent for law
In relation to the law, judicial precedent is in a position of a subordinate nature. What is the reason for this? The law may cancel the judgment. Consequently, any legislative act adopted in the prescribed manner is binding on the court. The relevant authority is obliged to act, taking into account the adopted rules, creating a judicial precedent. The examples in Russia of the phenomenon under consideration in relation to the law are numerous. For example, the existence in a particular case of judicial precedent based on the norms of the law. Later, these standards are canceled or changed. Consequently, judicial precedent cannot be applied in the future.
Case law of Russia has a number of positive characteristics: dynamism, normativity, and certainty.
Court case in England
English case law is central to the legal family. This is due to the fact that the court in the study of materials determines the fact whether a similar case was considered before or not. If there was anything like that, then when making a decision, the court is guided by a verdict already passed before in a similar case. What does it mean? Once a decision is made, it is considered mandatory for the following similar cases. Moreover, there is a hierarchy of the court, on which the degree of binding precedents depends. They also pay close attention. Judicial precedent is the dominant source of law in England. There are about eight hundred thousand considered phenomena. And their number is increasing every year.
England Judicial Organization
In England, the highest court is the House of Lords. The decision made in it is binding on other courts.
The court of appeal includes two branches (criminal and civil). The court must comply with its own precedents and the precedents of the House of Lords. Decisions of the court of appeal are binding on the lower legislature.
The High Court, including all branches related to it, is obliged to be guided in deciding the precedents of two higher instances. A high court verdict is binding on lower bodies.
The lower courts are the magistrate and district courts. They must abide by the precedents of higher authorities. The decisions of the district and magistrate courts do not set their precedents, nor do the verdicts of the Crown court.
A number of institutions of the common part are not fixed by criminal law, since it is established by the judicial precedents of England. Examples of some of the phenomena under consideration are related to MacNaughton rules. They contain the criteria of insanity that are absent in English law.
U.S. case law
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 the law. Case law presupposes a hierarchy in the system of precedents. Simply put, decisions made by a higher court are binding on lower bodies.
Being in constant motion, judicial precedents in the USA are created and determined by representatives of legislative systems. Examples of decisions taken on specific cases are subsequently applied to other similar cases. If one of the parties disagrees with the decision made by the judge, then the representative of the higher instance is obliged to consider the case in accordance with the provisions of the previous judicial precedent in a similar case.
US Case Study
Consider one well-known example of a US judicial precedent. It is the rule of Miranda. The story of his appearance began in 1963 in Arizona. There, Ernesto Miranda was taken into custody for committing a criminal act. This person voluntarily confessed to a crime. But since he was not informed of his procedural rights, the US Supreme Court ruled that in such a situation, voluntary confession of an act was not evidence of guilt. Hence the norm was born, according to which the suspected person should be informed of his procedural rights. Only then will his confession serve as evidence of guilt.
Miranda's rule is in the system, which is included in numerous court cases in the United States. Examples of the other phenomenon under consideration contain a rule prohibiting school administrations from obstructing students' opinions. This rule appeared during the Vietnam War. Then one of the students in Iowa State School put on black armbands, symbolizing the protest against the fighting. In response to this expression of their opinion, the school administration issued an order that forbade wearing this paraphernalia. The US Supreme Court considered the decision a violation of constitutional rights. After that, this norm became a precedent.
Russian example
Consider the example of judicial precedent in Russia. They may be served by the decision of higher courts in relation to lower bodies. Verdicts of authorities higher in the hierarchy are not binding. But unofficially represent a judicial precedent. Examples in Russia of the phenomena under consideration may relate to criminal, civil, administrative and other cases.
For example, a regional criminal court ruled. Later, a similar case is considered by the district legislature. When making a decision, lower courts most often use the practice of higher instances. It is she who represents the judicial precedent as a source of law. Examples of family disputes may also serve as a precedent. For example, the phenomenon under consideration regarding child support obligations.