To the right has been successfully implementing its functions, it must have its external expression. Legal doctrine under the form, expressing the will implies a norm. It is the source of law. Usually in theory allocate four: judicial precedent, Treaty, regulation and sanctioned by custom.
Many countries as a major source of law are precedent. The existence of judicial precedent suggests that in such countries are engaged in law-making activity.
Judicial precedent – changing, establishing or abolishing legal norms of the judgment in a particular case. It is mandatory for the same or lower courts when examining similar cases, as the precedent has the force of law. In this article we will discuss everything that relates to this concept.
An Example of judicial precedent in Russia - the interpretation of Constitutional norms by the Constitutional court. This is done by checking the conformity of laws, decrees of the Plenum of the Supreme court, higher Arbitration court, etc.
So, what is it? Judicial precedent as a source of law has been known since ancient times. What was it like? In Ancient Rome, a precedent was made by decisions of praetors, and masters. There were treated and oral statements. Originally precedents in the consideration of similar Affairs were binding only for their adopted masters and during a specific period. Gradually, some of the most successful edicts is to be sustainable and become universally binding rules – Primorskoe right.
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In the middle ages the use of precedent is also widely used. The invasion of England in 1066 led to the rise of the right, common to the whole country. Began to form the Royal circuit courts. They resolved disputes on behalf of the Crown, arrived at the scene. Gradually taken by the judges solutions were used as a basis for consideration of similar Affairs in other instances. So it was common for England, a unified system of judicial precedent, a practice which grew to include hundreds of different cases.
The Precedent we have received a mixed assessment. In pre-revolutionary Russia, some practitioners and theorists have recognized the phenomenon a source of law. However, they noted that it plays a supporting or supplementary role in relation to the law. Other theorists and practitioners, on the contrary, have not set a precedent as an independent legal source.
Post-revolutionary Russia in the Russian legal science continued not to recognize as a form of law before us concept. The theorist of rights, R. Z. Livshits explains this normativistic approach in the Soviet legal science and to understanding law.
Since 1985, the progress in the lives of people led to a natural change in the legislative authority. It happened because normativity approach ceased to be relevant. This fact affected the recognition of judicial practice as a legal source.
Consider the place of judicial precedent in other countries. Currently one of the most important legal sources-judicial precedent stands in the legal systems of UK, USA, Canada and other countries. Nearly one-third of the world still lives according to the principles which had been formed in English law. The concept under consideration plays a significant role in creating the European law.
The Country with one legal system may apply judicial precedent differently. For example, judicial precedents of law in England are strictly enforced, as there is a clear rule. In the US, on the contrary, the rule of the concept is not hard due to the features of the Federal structure of the country.
The Court decision could be used as judicial precedent in Russia. An example of this phenomena we consider in this subsection of the article.
This can be a judgement that causes binding on the courts is not the whole sentence or the whole solution, but only the legal position taken by the judge on the basis of which a decision is made.
Although the position of the doctrine of precedent, the most significant element in the decision is the second part. It outlines the essence of the case. The rest of the decisions for the judges not considered binding but are of persuasive precedent. Consequently, emanating from the court of higher rank legal argument, which is a solid formulation of the rule of law, as a rule, is an example. But there is an exception. We are talking about cases where there is a precedent for the opposite in a similar case.
Example of persuasive judicial precedent may constitute a decision of the court, located in the hierarchy below the body to which it is proposed to adopt a similar verdict.
The court's Decision contains several component parts.
In relation to the law judicial precedent is in the position of a subordinate nature. What is the explanation? The law can repeal a court decision. Therefore, any legislation passed in the prescribed manner, shall be binding for the court. The relevant authority is obliged to act according to accepted rules, creating a legal precedent. Examples in Russia of this phenomenon in relation to the law are numerous. For example, the existence of a specific matter of judicial precedent based on the rule of law. Later these rules are abolished or changed. Consequently, judicial precedent cannot be applied in the future.
Case law Russia has a number of positive characteristics: dynamic, normativity and certainty.
English case law is in the legal family Central. This is due to the fact that the court in the study of materials determines the fact, had there been a similar case before or not. If there was anything like that when making a decision the court is guided by the already adopted before the verdict in a similar case. What does it mean? Taken once a decision is considered mandatory for the following similar cases. Thus there is a hierarchy of court, which depends on the degree of binding precedents. This also pay close attention. 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.
In England, the highest court is the house of lords. The decision taken in it, necessary for other vessels.
The appellate court involves two departments (criminal and civil). The court must respect its own precedents and the precedents of the house of lords. The appeals court decision binding on the legislative bodies of the lower court.
The High court, including all of its related offices, must be guided in deciding cases of the two higher courts. The verdict of the high court binding on subordinate bodies.
The Lower court are the magistrates and district courts. They must follow the precedents of higher authorities. Decisions of the district and magistrates courts do not create their own precedents, and verdicts of the court of the Crown.
Not enshrined in criminal law, a number of institutes of the General part, as it is established by judicial precedents of England. Examples of some of the phenomena in question are connected with the rules Magnotta. They contain missing in English law, the criteria of insanity.
As the law of the United States was formed on the basis of the laws of the Anglo-Saxon legal family, the major source is legal precedent. It is an important link in the legislation. Case law presupposes the existence of hierarchy in the system of precedents. Simply put, decisions made by higher court are binding on lower bodies.
Being in constant motion, are created and determined by the members of the legislative systems, judicial precedents in the United States. Examples taken in specific cases decisions in the future apply to other similar cases. If one of the parties will not agree with the adopted decision of the judge, the representative of higher instance is obliged to consider the matter in accordance with the provisions of the previous judicial precedent in similar...
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