Judicial Lawmaking: Questions of Theory and Practice

Abstract

Review. The problem of formation and development of judicial rulemaking in Russia remains relevant for both legal science and judicial practice. The analysis of different opinions on this issue with due account for the jurisprudence of the higher courts allowed the author to define judicial rulemaking, understand the essence and the role of judicial rulemaking of the highest judicial bodies in the legal regulation of social relations. Evolutionary development of the legal system has allowed defining a normative function of the judiciary and the related problems of its legal recognition in Russia. In the literature there is no single point of view with regard to judicial practice as a source of Russian law and a normative function of the higher judicial bodies, and, therefore, the problem of its recognition in the legal system remains unsolved. Two main approaches to the problem of applying judicial practice as a source of law and the judicial rulemaking have developed. Under the first approach judicial rulemaking and judicial practice are acknowledged as a source of law. Under the second approach judicial practice is not considered to be the source of law because judicial bodies do not have rulemaking functions, and their main task is to apply the law, not to make it. In fact, both the Constitutional Court of the RF and the Supreme Court of the RF serve the rulemaking function, although this function is not enshrined in law, and this activity in no way violates rights and freedoms of citizens, but rather protects their infringed rights, freedoms and legitimate interests in cases of loopholes and fouls in a regulatory enactment (a norm), or if a regulatory enactment contradicts the Constitution of the RF. Judicial rulemaking is a non-core activity of the highest judicial body, it is not permanent as compared with legislative lawmaking and it takes place when the court in its operation faces with a gap or foul in law or legislature or with the rule of a legislative enactment that needs interpreting. Then, to resolve the dispute the Court establishes a judicial rule that becomes a supplementary regulator of social relations as soon as it resolves the dispute. In such cases the mechanism of judicial rulemaking starts its operation as a necessary and integral part of the legal system. Judicial rulemaking is the process of developing general rules of legal regulation and their interpreting by the highest judicial bodies in the process of their performance (in accordance with a certain type of court procedure) and their further consolidation in a judicial act.