Механизм судебного правотворчества: понятие и особенности

Abstract

The article presents the author’s approach to the definition and structure of lawmaking mechanism in general and of judicial lawmaking mechanism in particular. The author underlines the necessity of differentiation between such processes as lawmaking, law creation and rulemaking. The author interprets lawmaking process as the final stage of the law creation, in which rules of law are formulated in appropriate legal forms. The author explains the possibility of understanding the lawmaking mechanism in statics and in dynamics. Static aspect of lawmaking mechanism includes a set of elements for the law creation — institutional, instrumental, conceptual and formal elements. Dynamic aspect reflects the sequence of stages of legislative activity: formulation of the rules and giving them appropriate legal form in the sources of law. The author concludes that the judicial lawmaking mechanism can be defined as a system of interconnected elements (static aspect) and successive stages (dynamic aspect), providing the formulation and objectification of generally binding rules in the form of precedent in judicial activity. The author illustrates her approach on the example of the peculiarities of the judicial lawmaking mechanism in the United States legal system.