An example of judicial precedent in the world. The judicial precedent as the source of law

In order for the right to successfully implement its functions, it is necessary to have its external expression. The legal doctrine under the form expressing will, means norm. It is she who is the legal source. Usually in theory four types are distinguished: a judicial precedent, a treaty, a normative legal act and an authorized custom.

The judicial precedent as the source of law

Many countries set a precedent as the most important source of law . The existence of a judicial precedent indicates that such countries are engaged in law-making activities.

A judicial precedent is a decision of a court that changes, establishes or abrogates the law, passed in a particular case. It is mandatory for the same or inferior instance when studying similar cases, since the precedent has the power of the source of law. In the article we will consider in detail everything that relates to this concept.

An example of a judicial precedent in Russia is the interpretation of Constitutional norms by the Constitutional Court. This is done by checking the compliance of laws, the resolution of the Plenum of the Supreme Court, the Arbitral High Court, and so on.

Judicial precedent: origin, example

So, what is it? The judicial precedent as a source of law has been known since ancient times. What did it look like? In ancient Rome, precedents were decisions on the affairs of praetors, as well as masters. There were also oral statements. Initially, precedents when considering similar cases were binding only for the masters who accepted them and for a specific period. Gradually, some of the most successful edicts acquired a stable character and became universally binding norms - this is the praetor's right.

In the Middle Ages, use of the precedent was also widely used. The seizure of England in 1066 led to the emergence of a law common to the whole country. The royal traveling courts began to be created. They resolved disputes on behalf of the Crown by arriving at the place. Gradually, the decisions taken by the judges began to be taken as a basis when considering similar cases by other instances. So there was a common system for England, a judicial precedent, the practice of which began to number hundreds of different cases.

Development of precedent in Russia

The precedent was ambiguous. In prerevolutionary Russia, some practitioners and theorists recognized the phenomenon under consideration as a source of law. 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 the precedent as an independent legal source.

Post-revolutionary Russia in the domestic legal science continued to not recognize as a form of law the concept we are considering. The theoretician of law RZ Livshits explains this with the normativistic approach in Soviet legal science and 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 by a legal source.

Abroad

Consider the place of judicial precedent in other countries. Currently, one of the dominant legal sources is the judicial precedent in the legal systems of the United Kingdom, the United States, 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 one legal system can apply the judicial precedent in different ways. For example, judicial precedents of law in England are strictly observed, since there is a clear rule. In the USA, on the contrary, the rule of the concept under consideration is not rigid due to the peculiarities of the federal structure of the given country.

Formation of a precedent at present

A judicial 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 judicial decision that leads to the fact that it is not the entire verdict or the entire decision that is binding on the courts, but only the legal position occupied by the judge, on the basis of which a decision is made.

Although from the standpoint of the precedent doctrine, the most important element in the solution is the second part. It is in it that the essence of the matter is set out. The rest of the decision for judges is not considered mandatory, but is a convincing precedent. Consequently, the legal argument, coming from a higher court of law, which is a thoughtful formulation of the rule of law, is usually an example. But there is an exception. We are talking about cases when there is a precedent of the opposite nature in a similar case.

A convincing example of a judicial precedent may also be a decision of a court that is below the authority to which a similar verdict is proposed.

Components of the court decision

The court decision contains several components.

1. Determination of existing direct or derivative facts of the case.
2. Statement of legal principles that apply to legal issues arising from certain circumstances.
3. Based on the first two parts of the judge's findings in the case. They are the third part. It is an important factor for the parties, since it establishes obligations and rights with respect to the grounds of the case.

The judicial precedent in relation to the law

In relation to the law, the judicial precedent is in a subordinate position. How is this explained? The law can cancel the action of a court decision. Therefore, any legislative act adopted in accordance with the established procedure is binding for application by the court. The relevant body is obliged to act, taking into account the adopted rules, creating a judicial precedent. Examples in Russia of the phenomenon under consideration in relation to the law are numerous. For example, the existence in a particular case of a judicial precedent based on the norms of law. Later, these norms are canceled or changed. Consequently, the judicial precedent can not be applied in the future.

The case law of Russia has a number of positive characteristics: dynamism, normality and certainty.

The judicial precedent in England

English case law occupies a central place in 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 earlier or not. If there was anything like this, then, in making a decision, the court is guided by the verdict already passed before on a similar case. What does it mean? A decision taken once is considered an obligatory norm for the following similar cases. In this case, there is a hierarchy of court, on which depends the degree of mandatory precedents. This is also paid close attention. The judicial precedent is the dominant source of law in England. There are about eight hundred thousand of the phenomena under consideration. And their number increases every year.

Organization of the judicial system of England

In England, the highest court is the House of Lords. The decision taken in it is mandatory for other courts.

The appellate instance includes two departments (criminal and civil). The court must observe its own precedents and the precedents of the House of Lords. Decisions of the Court of Appeal are binding for the lower courts.

The High Court, including all its affiliated offices, must be guided by the precedents of the two higher instances when deciding. The verdict of a high court is binding on the lower bodies.

The lower instance is the magistrates' and district courts. They must follow the precedents of higher authorities. The decisions of the district and magistrates' courts do not create their own precedents, as are the verdicts of the Crown Court.

A number of institutions of the general part are not fixed by criminal legislation, since it is established by judicial precedents of England. Examples of some of the phenomena under consideration are related to McNaught's rules. They contain the criteria of insanity that are absent in English law.

The judicial precedent in the USA

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

Being in constant movement, judicial precedents in the USA are created and determined by representatives of legislative systems. Examples of decisions taken in specific cases are subsequently applied to other similar cases. If one of the parties disagrees with the decision taken by the judge, the higher instance representative must review the case in accordance with the provisions of the previous judicial precedent for a similar case.

Example of a US use case

Consider one well-known example of a judicial precedent in the United States. They are the rule of Miranda. The history of his appearance began in 1963 in Arizona. There, for the commission of a criminal act, Ernesto Miranda was arrested. This person voluntarily confessed to the perfect crime. But since he was not informed of his procedural rights, the US Supreme Court ruled that in such a situation, voluntary recognition in a perfect act is not proof of guilt. Hence the norm was born, according to which the suspect should be informed of his procedural rights. Only then his confession will serve as proof of guilt.

The rule of Miranda is in the system, which is included in numerous judicial precedents in the United States. Examples of another phenomenon under consideration contain a norm prohibiting school administrations from interfering with the expression of the opinion of students. This rule appeared during the Vietnam War. Then one of the pupils of the school in Iowa put on his hands black bandages, symbolizing the protest in relation to the fighting. In response to this expression of his opinion, the school administration issued an order that forbade the wearing of this attribute. The US Supreme Court considered the decision a violation of constitutional rights. After that, this rule became a precedent.

Russian example

Let us consider an example of judicial precedent in Russia. They can serve as a decision of higher courts in relation to lower bodies. The verdicts of instances standing higher in the hierarchy are not mandatory. But they unofficially constitute a judicial precedent. Examples in Russia of the phenomena under consideration can concern criminal, civil, administrative and other affairs.

For example, the regional court in the criminal case ruled. Later a similar case is considered by the regional legislature. In making a decision, lower courts most often use the practice of higher authorities. It is she who represents the judicial precedent as the source of law. Examples of family disputes can also serve as a precedent. For example, the phenomenon under consideration, concerning the child's alimony obligations.