Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation

Bondar, Nikolay S.

doi:10.61205/S160565900026552-1

English

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Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation

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Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation

Annotation

PII

S1605-65900000622-5-1

DOI

10.61205/S160565900026552-1

Publication type

Article

Status

Published

Authors

Nikolay S. Bondar Send message

Occupation: Head of the Center of Judicial Law
Affiliation: Institute of Legislation and Comparative Law under the Government of the Russian Federation
Address: Moscow, Russia

Edition

Volume 28 No. 2

Pages

5-27

Abstract

The phenomenon of atypical sources of law is considered by the author from the standpoint of judicial lawmaking, referring to the judiciary, firstly, as the creator of atypical rules of judicial activity and, secondly, as a subject of law enforcement. Such an approach should contribute to increasing the practical purpose of atypical sources in judicial activity in the development of fair decisions based on equality of all before the law.

It is important to take into account the various, deeply rooted historical legal traditions of the formation and use of atypical sources of law in modern legal systems. Based on the analysis of the historical prerequisites and conditions of judicial law-making in the Romano-German and Anglo-Saxon systems, their philosophical and ideological features, orientation to moral and ethical criteria of justice or to the philosophy of pragmatism, the correlation of general patterns and national features of the formation of judicial precedent principles and other forms of atypical sources of judicial law enforcement is analyzed.

In the modern domestic judicial and legal system, the judicial and law-making activity of the Constitutional Court of Russia is of particular importance, on the basis of which a system of real (judicial) constitutionalism is formed as a kind of genetic basis, a prerequisite for the formation of precedent and other atypical sources of judicial law enforcement, the assertion of “the right of the court”. This implies a high level of constitutionalization of all branches of legislation, as well as law enforcement practice. On this basis, a system of atypical sources of judicial law enforcement is being formed, the main guidelines for which are constitutional principles and values. Therefore, the system of atypical sources of judicial law enforcement should include not only the so-called additional, secondary sources of law; for judicial law enforcement activities, a kind of “meta-sources” of law are of fundamental importance, which in this capacity can also be considered among atypical sources, but not the “secondary”, but the fundamental level of judicial law enforcement.

Within the framework of the conducted research, a general scientific methodology was used, special legal methods of cognition were applied, including the texts of court decisions were analyzed from the point of view of their axiological nature, legal obligation, universality of relevant conclusions, the systematization of legally significant normative legal phenomena that can be attributed to the constitutional system of atypical sources of judicial law enforcement, regardless of their formal-legal legislative recognition as such.

Keywords

atypical sources of law, judicial enforcement, judicial precedent, judicial constitutionalism, legal system, Constitutional Court of the Russian Federation, constitutional sources of the legal system

Date of publication

27.02.2024

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124

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GOST	Bondar N. Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation // Journal of Russian Law. – 2024. – V. 28. – No. 2 C. 5-27 . DOI: 10.61205/S160565900026552-1
MLA	Bondar, Nikolay S "Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation." Journal of Russian Law. 28.2 (2024).:5-27. DOI: 10.61205/S160565900026552-1
APA	Bondar N. (2024). Atypical Sources of Judicial Enforcement: Constitutional Mechanisms of Formation and Implementation. Journal of Russian Law. vol. 28, no. 2, pp.5-27 DOI: 10.61205/S160565900026552-1


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