Case law as the basis for adjudication

We all watch TV and many times we see how in the film the judges refer to the judicial precedent. Nobody really knows about what it is, and many are trying to find out whether there is a case law in Russia. And if so, what's the use of it?

Let's try to figure it out.

According to theory, there are two legal systems. Namely, the Romance-Germanic and the Anglo-Saxon.

The first is called continental law, and it is widespread in countries such as Germany, France, Spain and Russia. Its essence boils down to the fact that the legislative act is used as a rule of law.

The Anglo-Saxon system uses the judicial precedent, that is, the judgment already pronounced in a similar case, as a legal rule. As the name implies, this system is used in the UK and the USA.

What is case law? This is inherently a procedural law in which the court's decision on a specific case can later be used to resolve such cases. That's the way things are in the countries of the Anglo-Saxon legal system. Thus, case law uses as a normative legal act not a legislative act as a rule of common law, but a specific judicial decision. But then again, no one says that this decision is taken from nowhere. It is also based on the law. Just this rule of law could be adopted 250 years ago and the decision made in those years will also be a judicial precedent.

In the Russian law, the judiciary refers to legislative acts to rule on the case. And there is a clear division of them vertically. There are laws and by-laws that can not contradict the law. Also, no law of the Russian Federation can contradict the Basic Law - the Constitution of the Russian Federation.

However, we can not say that case law does not apply at all in Russia. This is not so, because the use of judicial practice is possible as a normative basis . But at the same time, it is impossible to pass a judgment on the basis of a precedent. Primary is always a law, and judicial practice goes as an interpretation of the application of the law.

In our country, many fear that case law can lead to judicial errors, given the corruption. As an argument, it is a completely absurd argument that a court decision taken under any influence on a judge, becoming a legal rule, will allow further illegal decisions. To understand the incorrectness of such a statement of the question, it is necessary to recall that the law is the only correct legal and regulatory framework, and if the court's decision contradicts it, then it can not be decided on another basis in another case. Even if we assume that this is possible, the higher court will overrule this decision.

The doctrine of Russian law is initially based on the principle of separation of powers into legislative, judicial and executive powers. Each of them carries out its functions and complements another. Thus, the legislature creates laws, and the judiciary applies them. However, in accordance with the legislation of the Russian Federation, the decisions and decisions of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation are a means of expressing the rule of law and can be designed for multiple applications. But at the same time they are still subordinate to normative acts. That is, case law is only possible as an auxiliary tool for adjudication.