The Concept of Judge-made Law and the Interpretation of Law by the Courts in Russia and Germany

Ludmila Yu. Grudtsina, Maxim V. Zaloilo, Dmitriy A. Pashentsev and Viktor A. Baranov

Relevance. The relevance of the study of the judge-made law concept in Western European jurisprudence, especially in Germany, as applied to the legislation on the judiciary and judicial system in Russia, is determined by important transformations in the Russian legislation on the judicial system. As the authors of the article have revealed, the reform of the court system structure in Russia, which has been taking place since 2014, is influenced by Western European legislation on the judicial system and the judicature. The activity of the court as a judicial authority is based on the law and consists of applying an objective rule of law, a certain article of the law to a specific life situation. Purpose. The purpose of the article is to study various legal aspects of judicial law-making. The inevitability of judicial law-making is determined by the presence of gaps in law and the inherent uncertainty and ambiguity of many legal norms, as well as the impossibility of denying justice in the absence of a clear positive norm applicable to the dispute. Both in the implementation of space law-making and the interpretation of the law, courts consider and balance various arguments and interests. Among them, both formal and dogmatic (literal meaning of the law, established scientific doctrines, systemic consistency, etc.) and political and legal (justice, ethics, economic efficiency, etc.) criteria play an important role. Methods. The leading method of studying the problem was the deductive method, which allowed studying the legal nature and legal features of judicial precedent as a source of law. The article uses the inductive method, the method of systematic scientific analysis, as well as comparative legal and historical methods. The leading method for solving the problem was the study of the place and role of law enforcement and interpretation by courts. Results. The article proves the unresolved theoretical problems of the place and role of judicial precedent in the legal system of the state, the role of interpretation of law and law enforcement by courts, and the influence of judgemade law on the development of national law and legislation in the modern world (based on the example of Germany and Russia). The article attempts to answer important questions of modern judicial law: How does judicial lawmaking depend on the hierarchical structure of the judiciary? In which directions can changes in this structure affect changes in judicial lawmaking? How can the practice of forming judicial precedents affect changes in the structure of the judiciary and the entire system of courts? What are the place and role of judicial precedent in national legal systems (for example, in Germany and Russia)?

Volume 12 | 05-Special Issue

Pages: 1212-1216

DOI: 10.5373/JARDCS/V12SP5/20201876