Judicial precedent as a formal source of law: theoretical issues

Abstract

The article provides a dogmatic analysis of the category judicial precedent as one of the types of formal source of law. The meaning and main types of legal precedent are determined. The construction of the judicial precedent is considered through the prism of its development in English law (common law and law of equity), the substantive features of the stare decisis principle are analyzed as a fundamental basis for the mandatory application of the judicial precedent in practice. An universal definition of a judicial precedent based on the analysis of its essential features is proposed. The author examines the categories ratio decidendi and obiter dictum within the framework of the judicial precedent and analyzes the features of their identification. The article provides a logical relationship between a court decision, judicial practice and judicial precedent, considers the main types of judicial precedent (binding, persuasive, rejected), their substantive features and regulatory significance. A comparison between precedent de jure2 and precedent de facto is made, the value of the interpretation precedent in relation to the construction of the legal position of the highest court is established. The conclusion about the formation of the Russian doctrine of judicial precedent is made both at the level of the general theory of law and in the branches of Russian law.