CASE LAW IN THE MECHANISM
ENSURING EFFECTIVENESS OF JUSTICE IN CIVIL CASES
Development of the legal culture, where a person is in the focus and which is affected by the change of the social and economic country development vector, is reflected in new conceptual approaches to solution of one of the most polemic problems of justice effectiveness in civil cases - the competence of the court in law enforcement. It is attested, on the one hand, by the obvious tendency to reject the traditional views on the role of the court rulings and the peculiar research renaissance in jurisprudence incident to the initial stage of intervention of the popular idea, on the other hand - by appearance of multiple collected acts (reviews, comments, etc.) of the judicial law enforcement. The ideas advanced in the publications are not always the doctrine to be followed unquestioningly. But by raising problems, advancing arguments for discussion, the authors wakes up a reader’s thought: the pluralism of opinions positively affects the development of science, it allows to correctly evaluate the subject of discussion.
Today this problem has turned into the dilemma: may courts create new rules or must they act strictly following legislatively mandated rules? The next question is closely connected with this problem: are such exceptional situations possible when enforcement of a rule of law turns out to be a new law-making? These problems may be solved in two ways: by way of creative construction of legislative rules and recognition of the court’s competence in rule-making within the framework of the civil process. Thus, there exists a very complicated practical problem which has priority both for the jurisprudence as a whole and for separate sectoral scientific subjects, reverting the jurisprudence, first, to the theory of the case law without intention to criticize it and to reject its significance, but to comprehend, learn, and use it as an tool (method) of social reforms to be conducted in the desired direction; second, to the necessity to comprehend the sociological trend in the theory of law anew.
A negative approach to the judicial law enforcement prevails in the national literature, according whereto in the course of law enforcement the court, acting as a mouthpiece of the legislator, not as a maker but an interpreter of a law, merely carries out a logical operation and places a specific case under the law rules. The idea of the gapless legislation underlies this opinion, the judicial rule enforcement being described at that as a conclusion free from any influence of appraisal, feelings, and wishes. The famous English philosopher F.Bacon, speaking about the quality of laws, commented on this approach as follows: «The best law is that which gives a judge the least to manifest his arbitrariness, and the best judge is that who leaves the least for his discretion» . It is possible to refer to the authoritative opinion of C. Montesquiou who rejected the law-making role of the court asserting: «...public judges ... are nothing but a mouth voicing the words of a law».
The aforementioned view on the judicial law enforcement has been developed in predominance of the doctrine of the so called juridical positivism, which proclaimed the will of a legislator as being sacred and inviolable. This doctrine regards the legal system as a complete whole, to which it is sufficient to apply a number of logical methods - and the necessary solution will be found. Therefore, the court’s competence should be reduced to the logical interpretation of the legislator’s will. The positivism prescribes to jurists not to research the necessity to amend enforceable laws. «Since they should not philosophize on the legislation per se but enforce local rules of law, every current legal system must be the best for them, and if it is changed by higher authorities - then the next one, where everything will be again in a proper mechanical order».
Speaking about conditions of a law operation, I.Bentham mentioned the literal understanding of a law by a law enforcer as one of the seven conditions: when «a judge assumes the right to clarify a law, i.e. to replace the legislator’s will with his own, then everything happens by the mercy of fate and nobody can foresee what trend the judge’s arbitrariness will pursue». Substantiating his opinion, the author expresses his anxiety that a judge «first adapting to the direct meaning of a law, then interpreting it can always conceal his partiality either by the literal or interpreted sense of the law. Thus, the judge becomes a charlatan, who, to the great wonder of spectators, treats them with either a sweet or sour drink from one and the same bottle». The strict adherence to this conception does not allow to realize fully the regulatory role of legal rules, to ensure attainment of social objectives of the law, since it is a formal conception of a judgment delivery according to the method of logical inference (syllogism), wherein a legal rule was the sumption, and a specific case of life - the premise. This conception is criticized by many jurisprudents. «A judge in a contemporary society cannot be a faceless law enforcer: he must... apply the current legislation creatively, relying on democratic principles of law, developed sense of justice, and life experience». The dynamism of the social life requires that mobility and flexibility of a law be enhanced, such qualities are especially necessary for legal rules operating in the sphere of private relations. The practice shows that the legislator’s rejection of option in simulation of economic relations and preference in using the peremptory rules entail the excessive «definiteness» of a law, which results very often in unfair judgments. Such a law, according to figurative comparison by philosophers, resembles an obstinate and ignorant person who allows neither to do anything contrary to his ruling, nor to ask him about anything.
Opponents’ objections to this opinion can be foreseen: the law and order in the sphere of economy requires that a businessman, a proprietor be dependent on law rather than on persons enforcing it, since business is prejudiced when a businessman must cater to a judge’s opinion and feelings. Such a situation arises when a court deems possible to deviate from the exact meaning of law and to take into account specific circumstances of its enforcement. The objections are essential, based on the national practice of the judicial law enforcement. However, they are only partially right, since they reflect the static nature of legal relations, one of the possible variants of law enforcement. Legal relations cannot be static in everyday transformation of human relations determining flexibility of the legal system. Hence, permissible degree of indefiniteness of legal provisions is of great value for normative prescriptions, allowing to regulate public relations pursuant to a law and not only to a legislative act. As compared to the dynamics of real relations, the legislation is a more conservative element which is in need of adaptive mechanisms capable to minimize lagging of state legislative efforts behind the objective reality. In this connection, the judicial procedure in the sphere of the social administration works as a peculiar prerequisite for not only operation of laws but also for their effectiveness, since it serves as an information channel about the quality of legal rules. The court practice provides the legislative authorities with information about the real effectiveness of a law, the necessity to amend, supplement or repeal it. Repudiation of the court’s right to find a law will mean negation of the dynamics of public relations, squeezing their new substance in obsolete legislative forms. The juridical axiom that a law should be construed depending on the time of application and not on the time of its adoption cannot be negated without sticking to the principle: a rule positively established by the legislator is final for a judge. The court has to solve similar problems when dealing with inoperative («worn out») laws or normative acts which are contrary to the Constitution of RF.
There is a precedent in the court rulings concerning the entitlement of a subject of the federation to obligate persons arriving for permanent residence in its territory to pay a special duty to countervail the budgetary expenditure for the infrastructure development of the inhabited locality. Moscow courts appraising the respective law have adjudicated the matter positively, i.e. they recognized the Moscow legislator’s actions as lawful. The Judicial Board of the Supreme Court of RF has reversed the judgments in the case recognizing them as contrary to a number of the constitutional provisions, including Art.27 of the Constitution of RF that provides for the human right to choose a place of residence. To substantiate its verdict, the Court has adduced the following arguments: payment of a considerable duty amount means restriction of human rights, i.e. the Court has assessed the duty amount and found it unfair; the legislator (and courts have supported it) fixed the duty rate payable by persons living outside Moscow depending on the place of a person’s residence; registration legislation establishes that a statutory duty for the residence registration should be levied in the manner and at the rates provided for by a federal law, no other payments being stipulated; the subject of the federation cannot restrict human rights and freedoms since it is a prerogative of federal laws and only in cases listed in Art.55 of the Constitution of RF.
This position of the Supreme Court of RF is based on the conception of «free legal movement», methodological and legal and not political and legal doctrine, according whereto a court refuses to enforce a legislative act if it is contrary to a law. Is it possible to assert that the Court has not followed the law and has manifested judicial arbitrariness? Naturally, the answer is negative, since in correlating the legislative act with the Constitution of RF - the direct public law - the Court was guided by legal rules. Justifying a court’s «free law finding», the author does not advocate getting free from rational relations of life, but getting free from the connection of the formal and logical deduction with the previous rules established by law.
The modern jurisprudence has elaborated methods permitting a court to eliminate all kinds of inaccuracies of a legislative act: to try by analogy, to be guided by judgments (judicial precedents) and to find an appropriate rule of law on its own. The right to find a rule is based on the understanding of the nature of a law. Since the legislative power does not convey the common public will but that of the state, the result of its activities - a law - may distort the public opinion on one or another matter. Enforcing a legal rule containing any inaccuracies, the court as if synthesizes the interests of the legislator and the law enforcer, which results in a rule of judgement concerning both the legislator and the law enforcer. The court receives from the legislator a form of the rule which he supplements with its will, clarifying incomprehensible points and defining doubtful ones. For example, the legislator does not define expressly the jurisdiction of a claim seeking recognition as unlawful of an act of a normative character, therefore, certain courts refuse to try such cases in view of lack of a court’s jurisdiction over the filed claim. Reversing the judgments in the specific case the Judicial Board of the Supreme Court of RF, on the basis of the analysis of Art.22 of the Code of Arbitration Practice of RF has come to the general conclusion which tends to become a common procedural rule: cases which are out of the jurisdiction of an arbitration court must be tried by a common court. Since disputes about recognition of invalidity (partial or complete) of non-normative acts are within the jurisdiction of an arbitration court, there is no direct reference to the jurisdiction over disputes seeking invalidity of normative legal acts, such a dispute is tried by a common court. In this case the court as if has filled up the legislator’s will and «found» a new rule of law.
The majority of authors do not deny the creative function of the judicial law enforcement, however, they limit it to determination of the true will of the legislator and refuse a court the right to find a legal rule outside of the current positive legislation. «A judge is not called to determine, - D.S.Mill asserted, - the most desirable mode of actions necessitated by the merits of a particular case: he determines only the legal rule applicable to the case, i.e. the actions the legislator has prescribed for such cases... The method here should be exclusively and exceptionally of the deductive or syllogistic nature, and the court’s deliberations consist in understanding of the rule». 150 years later our national scholars specializing in the judicial procedure joined this opinion and refused the court the right to rule-making: «the jurisdictional bodies must clarify the legislator’s idea by construing a law, they must not introduce their own ideas into the law depending on place and time, and individual peculiarities of a case. The latter would be lawmaking, and not law enforcement»
It is easy to note that this viewpoint denies a court’s right to evaluate the law from the position of other legal ideas incidental to the society. The reasons thereof stem from the conceptions of rationalism, which, as applicable to the analyzed situation, consist in the following: «A judge must try cases following formal rules; otherwise he would soon assume the legislator’s functions, and everything would depend on his whim».
The theory of the gapless nature of the system of the positive law is based on the idea that any vital question has an answer in a legislative act, it is only necessary to understand its purview and the will of the legislator. If in the course of law enforcement a dogmatic lawyer discovers a gap, he makes an attempt to fill it in. As applicable to justice, this reveals itself in the normative stipulation of the court’s obligation to deliver a judgment, to give an answer to any matter arisen in practice. The judgment should be based on a rule of the positive law. The court is not relieved from this obligation even by the reference to incompleteness, vagueness, and contradictory nature of the law. If a judge refuses to adjudicate a case because of a gap in the legislative act, his behavior should be deemed as denial of justice. This theoretical provision has been reflected in laws of a number of countries.
Our national jurisprudence, legislation, and judicial practice have been developing exactly along this way. The Code of Civil Practice (1964) provides for the rule stipulating that in absence of a law regulating specific controversial relations, a court enforces a law regulating similar relations, and in absence thereof it relies on general principles and the sense of the legislation (Art.10). The similar rule may also be found in the new Civil Code of RF which obligates law enforcing bodies to be governed by «the requirements of conscientiousness, reasonableness, and fairness» (Art.6). The idea that in the course of enforcing a law a court must, first of all, understand those provisions and ideas which were implied by the legislator, prevailed among national authors, both pre-Revolutionary and contemporary ones.
At the same time, in the XIX-th century there were many lawyers who advocated the court’s right to rule-making. In the middle of XVIII century S.E.Desnitskiy asserted, «Litigation should be tried in accordance with the rights, ... if there are no sufficie3nt rights, then according to the fairness and truth, ... since in no country it is possible to foresee and cover by laws all types of incidents, judges should be allowed to adjudicate in good conscience and fairness, and the extent of this allowance should be determined in laws». «It is necessary to apply that law, - B.A.Kistyakovsky said, - which operates in the society and manifests itself in the behavior, transactions of its citizens, and not the law stipulated in codes. Extension of our knowledge of a law lies in this change of the object. It is achieved by studying the problem of the rule-making role of a judge.» The position of advocates of the judicial rule-making may be defined by the words of the famous German lawyer O.Bülow, the author of the theory «the judicial process as legal relations»: an adopted legislative act «is not an effective law yet. All the legislator is able to do is only a plan, an outline of the future desirable law order».
Studying the scientific trend that recognizes a court’s right to rule-making, it is to be taken into account that in the beginning of the last century there appeared numerous works which reconsidered the established idea that the main purpose of a law construction was to determine the legislator’s true will, to find a legal rule applicable to the facts of the case according to the legislator’s will. In one of the articles dedicated to the problem A.Goihbarg raised a number of questions to be solved: is it necessary to find the legislator’s will in every case of law application or only in construction thereof? Is it necessary to find the will empirically (it was and is so) or from the normative standpoint (it should be so)? What kind of will is meant, psychic or juridical? Whose will - the author’s or the parliament’s, the historical or modern legislator’s - is the question about? However, the scholar failed to attain the object set, and admitted that the legislator was an elusive being, he had no will, nor could he fix it. At the same time, the scientific conception advanced a requirement whereby a judge had to be given a more free hand in construction of laws as compared to that allowed by the prevailing doctrine. However, the jurisprudence did not go any further than making such conclusions, since it encountered numerous problems: what should replace a judge’s usual grammatical and logical law construction recognized as fruitless after vain attempts to extract from legislative acts a big prerequisite for the judicial syllogism? What is the nature of the rules created by a judge to fill up a gap in a legislative act, and to what extent are they obligatory for other courts, law enforcers?
The development of the court practice conditioned by the policy of economic liberalism had entailed judgments which did not rely on the rules of the positive law, that in itself did not deprive them from their legal nature and force. In this situation the jurisprudence, keeping in mind the problem of legal principles of court judgments, substantiation and reasoning of their juridical significance, was forced to admit unambiguously that such court activities appeared to be fruitful for the public practice. The efficacy of such facts made the scholars reject the dogmatic approach to the competence of the court as «a finder of the legislator’s will», predetermined the second approach to the concept of the essence of the judicial law enforcement which stemmed from the idea that the court was free to find a legal rule outside the legislation. This scientific trend appeared when the jurisprudence stopped identifying a law with a written legislative act. In such a situation a court delivers its judgment not only by way of correlating a particular case with a law, but also as a result of the expediency and interests estimate. It may find elements of its judgment in the established public relations, reasons of the legislator, existent scientific structures, legal concepts. The court construing a legislative act cares only for the meaning of the wording of rule of law and aspires for finding a reasonable and expedient solution. The process of a law construing consists in appraisal thereof. The court has a more free hand when it encounters gaps in a legislative act and in cases he has to apply a law which has not been reflected in the legislation. Such definition of law enforcement is based on the sociological interpretation of the essence of law, which does not recognize the unconditional perfection and completeness of the legislation, since even the most developed legal culture is objectively unable to turn all legal rules into the legislation. Therefore, in such cases the court uses the inductive way of law finding, which is contrary to the deductive one. The court determines independently what law is applicable to the conflict concerned, its judgment relies on the law, although no specific rule thereof underlies it. The authority of the judgment is the concept of fair adjudication of a legal conflict. The aforesaid allows to assert that whenever the court fills up the gaps in law, it demonstrates individual law-making in a full sense of the word. The court invents a legal solution, it finds a legal rule outside the legislation.
Recognizing the court’s right to find a legal rule outside the legislation, it is necessary to outline the bounds of the judicial «legislation», to determine its objective and generally obligatory scope. Determination of these criteria is important for both parties to a law enforcement process: the court gets the ground for enforcement of the law that has not been reflected in the legislative act, the claimant and the respondent become confident that the trial is conducted by law and not by the court’s arbitrary rule. Trying to prove that it is hopeless to search for such criteria for appraisal of a law elaborated by the court, the authors connect this impossibility with the relative nature of any legal ideal, which must be the authority for new rules which have not been stipulated in a legislative act yet.
It is well known that the purview of a written law shaped into a legislative act reveals itself just in the process of its enforcement, including by court. This thesis is manifested, in particular, in the position of the legislator: recognition by the Constitutional Court of RF of any judicial act as contrary to the Constitution of RF means, in fact, its abrogation, since from that moment the parties in any court in the territory of the Russian Federation cannot refer to it (para 6, Art.124 of the Constitution of RF). At the same time, the judicial act may have different legal forms.
The first form of recognition of a normative act as unconstitutional consists in declaring it void. It means that provisions of such an act must not be applied from the moment of its issue. In other words, such an act does not create any legal consequences at all, in spite of the fact that considerable time may pass from the moment of its adoption until the Constitutional Court of RF delivers a respective judgement. For example, if a new tax is introduced by a normative act recognized by the Constitutional Court of RF as contrary to the Constitution of RF, the persons who have paid it are entitled to seek return of the excessively paid sums (through a case trial on the ground of new circumstances) after the judgement of the Constitutional Court of RF becomes effective. The second form of recognition of a normative act as unconstitutional is connected with its termination in future rather than with nullity of a law. Such legal consequences can take account of interests of not only participants in the proceedings in the Constitutional Court of RF, but of a widest circle of persons, of the state as a whole. The Constitutional Court declaring the nullity of a legislative act is fraught with destabilization of public relations and violation of human rights and freedoms – these are the reasons that governed the Court’s refusal to recognize a normative act as void. In practice, the Constitutional Court of RF sometimes recognizes a legislative act as void, though from the date later than the judgement delivery date. The delay is granted to enable the legislator to introduce relative amendments. If the legislator fails to make use of this opportunity, the legislative act is not enforceable from the date determined by the Constitutional Court. Recognition of unconstitutionality of a legislative act attests to its illegal nature. Proceeding from the above opinion, the old dispute about a court’s entitlement to resolve cases contrary to the current rules of law - contra legem - may be settled, i.e. whether a court is entitled to reject the rule regulating this kind of cases if it concludes that the rule is inapplicable to the specific case in view of the peculiarities of the latter. The question may be answered in the affirmative only if the court finds the rule unconstitutional.
Russian law is a law of court rulings since the constitutional mechanism of the state power directs courts towards the constitutional construction of the applicable legislation. In other words, every time a court enforcing the law must be convinced in its compliance with the Constitution. The issue of the court’s powers in verification of constitutionality of a legal rule remains disputable: whether the court is competent to make a final conclusion on unconstitutionality of a rule or it is within the exclusive competence of the Constitutional Court.
The literal construction of Art. 101 of the Law On the Constitutional Court allows to refute common courts’ right to decide independently on the above matter, since the rule prescribes the court to apply to the Constitutional Court «for verification of constitutionality of a legislative act». Such interpretation of the article prevails among experts substantiating their opinion by the argument that vesting the common courts with the right to decide on unconstitutionality of a rule «could only further destruction of the law and order, exclude the stable positions in a law construction, and entail the situation wherein the democratically acting legislator’s legitimate power of lawmaking might be canceled by any court». These are serious anxieties, however, they stay aside from the main concepts of the Constitution, the principle of «differentiation of powers» whereby the courts, independently from other branches of the state power, make their experience objective; second, they disregard the fact that the courts function relying on such social ideas and values as a jural state, the rule of law, human rights and freedoms.
The court does not make a new law at its discretion, it only finds it out of the positive law and formulates the law already existent in the society. If the jurisprudence acknowledges a relative independence of the state and law, it would be hardly possible to negate the legal right of the court to establish a normative rule which has already been realized in life only because the legislator has failed to do so in time. Therefore, rigorous difference between a law and a legislative act has an independent practical significance connected with the problem of effectiveness of the legislation and law enforcement, since it presupposes stringent requirements for not only the purview of a law but also for the judicial law enforcement. It is natural that from the above viewpoint the problem of absence of a legislative prescription does not arise, its substance reveals itself in the form of a judgment. The court does not make a law, it just finds, comprehends, and makes it public. The court is also indifferent to the reasons of the legislator’s delay in putting an actually existent law into the form of a legislative act. The methodological conclusion suggests itself: a law of the society in question exists regardless of the legislator’s will and independently from the court. To vest exclusively the legislative bodies with the function to find legal rules means to disregard that this function in corpore is carried out by the state as a whole, hence, by courts during law enforcement. Such an approach to the mechanism of a law finding by the state, to the role of all branches of the power in this process allows to explain the difference in the constitutional provision of the scope of the legislative initiative of the public bodies: federal courts as compared to other public authorities have, so to say, «a reduced legislative initiative» (Art. 104 of the Constitution of RF).
Recognition of a judicial precedent as a law form (authority) is, undoubtedly, a reflection of objective requirements of the present-day social reality. The trend of the scientific thinking advocating the legal right of the court to law-making is an attempt to assign the judiciary system a new function: a search for a legal rule outside the legislation. Such an approach to the possibility of the judicial law finding needs to be legally provided for (e.g. in the new CCP of RF), since the state determines the competence of its bodies, including that of courts. The power, by permitting the courts to apply those rules of the communal life that have been developed in the society as a result of actual relations but have not been legally stipulated yet, thus acknowledges a number of facts. First, such rules (norms) were to be or will be formed. The rules of the common law, although formed in spite of the political will, acquire their juridical mandatory nature from the state. Therefore, admissibility and the scope of the judicial legislation are determined by the legislator. Second, law finding (law-making) is not the main function of the judiciary system, it has the express filling-up character and is conducted within a rigid legislative framework. Third, a law is a social and juridical phenomenon since its principles stem not only from the sphere of the state power, but also from the specific conditions of the society. The dual essence of a law reveals itself in that it functions as a compromise in the fight of social forces and interests, on the one hand, and on the other hand, it is a public regulator in the juridical form. Such conception of a legislative act corresponds to that the public relations are an objective and decisive element of law.
It is expedient to stipulate as a separate formula in the procedural legislation the proposed legislative solution which will «work» for effectiveness of justice in civil cases (a similar rule is stipulated in the Law of Israel On Fundamental Rights (1980) as follows:
«Article ___. Collateral law authorities.
If a court disagrees with a legal rule regulating the judgments delivered, and finds no answer either in the positive law or in the judicial rulings at all, when issuing a verdict it should proceed from the principles of justice, freedom, and peace in the spirit of the national tradition».
In the system of the socially oriented culture the law acquires different forms servicing the strata of the society of different rate of development: a legislative act, a precedent are dynamic elements - «a vertical», a customary law is a static element - «a horizontal» of the objective reality. At the same time, the social existence is ensured by the only rule-principle: all subjects should act so that their actions manifest unconditional readiness to abide by the rule. Therefore, the problem of interaction of a judicial precedent and normative legal acts cannot be brought merely to availability or lack of the state’s sanction of the judicial case law. All known legal forms supplement each other since in the legal system they, revealing their regulatory force, correlate as both static and dynamic elements. Judicial precedents ensure the dynamics of the development of public institutes. A legislative act, an agreement, a precedent, a legal usage, being legal forms, cannot oppose each other since they are elements of one and the same system.
Does intensification of the rule-making activities of the judicial power mean that the positive law is ousted by the case law (the term is conventional: the question is the form of a law and not its purview)? In fact, as soon as the rules established in judgments and not in parliamentary legislative acts start regulating individual social institutes, the positive law is ousted by the case law. Such assertion with certain reserves may be made with respect to the purview of legal rules, but not to the means of their existence. In this respect it may be said that legislative rules (parliamentary rules) are replaced or supplemented by rules of the case law, and at the same time it is the strictness of the normative doctrine rather than the rules of the positive law (legislative act) that is ousted. This is the reality allowing to assert unambiguously that the theory acknowledging the right of the judicial power to lawmaking is carving, although still rather gingerly, its way in the post- socialist judiciary system. This conclusion cannot be challenged by the argument that currently only the highest judicial authorities enjoy such right.
Speaking about the judicial rule-making it is important to keep sight of its limits, which lie in the peculiarities of the law construction method. In those cases when the court is not expressly limited in its rule-making by «the legislator’s will», it is bound, first of all, by the social objectives the legislation is adopted for, second, by the specific forms acquired by a legal institute, third, the court’s activity of filling up gaps in a law will be limited by the nature of an enforceable legislative act, whether it is attributed to the public or private law. In the sphere of the private law the state rules are replaceable, i.e. legal rules make way to the will of specific persons who have entered into legal relations, as well as determine the essence of these relations in absence of the persons’ express will.
Summing up, we would like to underline that law cannot be independent of the purview of a legislative act. If a legislative act is contrary to the ideas prevailing in the society, it cannot be regarded as legal - this conclusion is axiomatic for the present-day jurisprudence. However, its realization provokes the following difficulties. First, it is not quite clear how to distinguish a legal act from illegal one. It is extremely difficult to clarify this matter. And the complexity of this task is to a great extent conditioned by the difficulty of determination of the extent of a legislative act compliance with the interests of the majority of the population. The illegal nature of a legislative act reveals itself only at the stage of its operation. Second, an unambiguous assessment of a legislative act – whether it is legal or illegal - is objectively impossible at the stage of drastic social reforms which evoke both polarization and stratification of interests. In other words, under the circumstances when a new social order is coming into existence, the social interests of certain strata of the population acquire the feature of marginality which, in its turn, creates difficulty in putting them into a legal form. Therefore, to reveal the illegal nature of a legislative act, a certain mechanism is needed which could allow to declare legitimately that the society deals with an illegal legislative or normative act.
As soon as a researcher acknowledges the court’s right to lawmaking, he is obliged to decide on the place in the legal system of the rules and principles created by judges in the course of judgements delivery. Do such judgements form a separate legal structure functioning according to its specific rules or do they «dissolve» within the framework of the traditional division of law into branches?
Division of the legal system into elements is nothing but a logical operation connected with classification of the rules according to their objective characteristics. Hence, it is difficult to guess beforehand the number of such classifications necessary for the juridical science and practice. Their number may evidently approximate to the number of the objective characteristics of the legal system, rules of law. At present, there exists the following division of the legal system: a) the public and private laws; b) branches of law; c) the written and unwritten (common) laws. Following the thesis of the existence of many types of classifications of legal rules, it is possible to point out one more division of the legal substance: the positive and case (judicial) laws. The subjective characteristic feature underlies this division: whereas the positive law is the rules of the parliament and legislative authorities, the case law is the rules of the judicial authorities.
The initial stage of solution of the problems of case law has predetermined the fact that the national jurisprudence on the basis of the comparative legal studies has accepted the definition of this legal phenomenon which can be found in the works of foreign authors. The case law is understood as a system of rules and principles made and enforced by courts in judgments delivery.
The case law comprises the rules established (found, revealed) by the court in the social reality – the circumstance which allows to introduce the term «court (judicial) law», i.e. the law created by judgments, in scientific researches. On the other hand, such rules per se may have different sectoral nature and pertain, for example, to the civil, labor, family, criminal, or procedural law. Therefore, the case law as a juridical phenomenon may be also characterized with account of the fact that it includes the rules of different branches of law.
Since the operational mechanism of the rules of the civil procedural law has been roughly derived gnoseologically from the doctrine of the mechanism of the legal regulation developed by the jurisprudence, it is possible to assert that the doctrine of case (judicial) law, which the general jurisprudence adheres to, may be used by the science of the civil process in the study of the justice effectiveness problems. So, what is a precedent? The answer to this question may be the following. Adjudicating a specific case, the court issues a judgment which is an imperative for the parties (participants) to the case, and the same judicial act, being a particular case of law enforcement, generates a common new rule, becomes a precedent for similar cases in future.
In the juridical literature there are no pessimistic prognoses for the development of the case law. Prerequisites for its more intensive development stem from the positive characteristics including the following: a) a precedent based on the great number of evidence has a big persuasive force confirming its expediency; b) being a result of the logic and common sense, a precedent conditions precise regulation of a specific life situation by virtue whereof it would be right to extend its regulating force to typical relations; c) a precedent reflects the dynamics of life better than a normative act, and a judge being closer to life situations is capable to respond to all changes more quickly than the legislator.
The case law displays its drawbacks including the following: the juridical force of a precedent is lower than that of the positive law rules, since the binding force of a law, for example, is stipulated in the Constitution of RF (Art.4); the purview of a judicial precedent is vague, has no clear outlines; a precedent admits arbitrariness of a judge in a case adjudication.
Since the legislation does not mention a court precedent as a law authority and a ground for judgments, the jurisprudence infers that the procedural legislation altogether rejects a court precedent as a form of law. However, the most fundamental question may be why precedents exist at all, rather than why the procedural law does not consider a precedent as a law authority. If so, then what are the universal requirements of the social reality to the sphere of justice which are met by precedents? First of all, a precedent accumulates the judicial practice which has selected the rules, values, ideals that operated and existed in the past and warrant attention at present. Precedents are, in a way, the fount of legal rules enforced by courts, including those regulating the civil procedural form. A judicial precedent both in the sphere of the substantive and procedural laws is not a method of making, but the method of stating a law.
  F.Bacon, On the Value and Improvement of Sciences, St. Petersburg, 1874, part1, p.297.
  C. Montesquiou, O dukhe zakona (About the Spirit of the Law). Selected works, Moscow, 1955, p.297.
  I. Kant, K vechnomu miru (To the Perpetual Peace). Works, Moscow, 1966, vol.6, p.294.
  I.Bentham, Selected Works. St. Petersburg, 1867, vol.1, pp.378-379.
  V.V.Ershov, Sudebnoye pravoprimenenie (teoreticheskie i prakticheskie problemy) (The Judicial LawEnforcement (Theoretical and Practical Problems). Moscow, 1991, p.3.
  The Bulletin of the Supreme Court of RF, 1996, No.3, pp.4-5.
  Ditto. 1996, No.6, p.1.
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  S.E.Desnitsky, Predstavlenie o uchrezhdenii zakonodatelnoi, suditelnoi i nakazatelnoi vlasti v rossiiskoi imperii (Conception about Establishment of the Legislative, Judicial, and Punitive Power in the Russian Empire). St. Petersburg, 1905, p.10.
  B.A.Kistyakovsky, Sotsialnye nauki i pravo (Social Sciences and Law). Moscow, 1916, p. 347.
  Ditto, p.350.
  A.O.Goihbarg, O vole zakonodatelya (About the Legislator’s Will). Pravo (The Law). 1916, No.28, p.1594.
  T.Morshchakova, Sudebnaya zaschita osnovnykh prav grazhdan v obschem i konstitutsionnom sudoproizvodstve: sootnoshenie i osobennosti. Sudebnyi kontrol i prava cheloveka (The Judicial Protection of Fundamental Human Rights in Common and Constitutional Proceedings: Correlation and Peculiarities. The Judicial Control and Human Rights). Moscow, 1996, p.33.