The Normativity of the Judiciary Acts in the Anglo-Saxon Legal System and Case Law Formation in a Modern National System

The paper analyzes the content of the stare decisis principle, provides the main arguments in its favor, examines the case law system, investigates the trends of its introduction into the Russian legal system. The authors conclude that the judicial precedent that played a historical role in the formation and development of the common law legal system is gradually changing its position in the system of sources of law. It has been established that in the Anglo-Saxon legal doctrine the question of precedent is now not unambiguous. It is pointed out that there is no judicial policy aimed at abolishon of precedents and it is proved that the calls of legal scholars to abandon the principle of stare decisis in the field of constitutional law are not unfounded. It has been established that, despite the denial of judicial precedent in the Russian legal doctrine and a debatable nature of this issue, in Russia the judicial precedent was gently integrated into the national legal system in the form of an interpretation precedent, which is conceptual in nature and entails the need to transform the entire system of legislation. The authors conclude that the judicial precedent does not coincide with the act of the judiciary, but is only a procedure for motivating this act that acquires mandatory force subject to the court observing this procedure for motivating in similar cases, and, as a source of law, gives normative force to the acts of the judiciary where it is contained. It is noted that a complete separation of the judicial precedent from the judgment where it is given is not true, since judicial precedent is «tied» to the factual circumstances of the case in the relevant part of the judgment.

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