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THE WAYS OF COURT PRACTICE INFLUENCE ON LAWMAKING1
Boshno Svetlana, Doctor of Legal Sciences, Professor, Head Political Science and Law Department of the Russian President Academy of National Economy and Public Administration, e-mail: boshno@yandex.ru.
Abstract. Litigation is a specific phenomenon of the Roman-Germanic legal system. This legal system does not recognize the legal precedent as a form of right. However, the courts consider cases as a form of jurisprudence. In the course of the judicial activities the courts to identify gaps and contradictions in the legislation. The author proceeds from the following understanding of the term «influence of the jurisprudence». It means the impact of the current line of law enforcement on the process of creation by normative legal acts of legislative bodies. Impact of jurisprudence on lawmaking is carried out continuously. Because of the impact the change in the law occurs. The elements of this system are the judiciary on the one hand, and the legislator on the other hand. The judicial authorities have the right of legislative initiative. The legislator can take theme of his bills from the jurisprudence. The judiciary because of its enforcement activities have information on the status of legislation including spaces. They have qualified machine capable of producing quality legislation. Higher courts possess the right of legislative initiative, which finishes the final preparatory work and has a mandatory value for the representative body. Thus, courts have professional and procedural resources to implement significant influence on lawmaking. jurisprudence, legal precedent, law-making, the legislative process, legislative initiative, legislators, law-making, a gap in the law.
Judicial practice exercises various kinds of influence on the law formation and development. It varies from conviction to obligation. Between these two borders there is a large number of half steps accentuating the impact of judicial practice.
Keywords:
Translated by Bibichkova Svetlana.
Difficulties in analyzing this impact are predetermined by the fact that the court practice as well as lawmaking has a lot of perspectives. The attitude towards judicial practice as an established way of law enforcement is considered to be rational. The object of the court practice influence is lawmaking — the activity of competent public and municipal bodies and their officials responsible for creating, changing and abrogating of regulatory legal acts.
The influence of the court practice is regarded as an effect of an established way of law enforcement practice on the process of regulatory legal acts making by legislative bodies. It results in changes taking place in the system of legal acts which are reflected in their changing, adding or cancellation.
In this connection we will study the connection between these two systems: the court practice and legislative acts.
The influence of judicial practice on lawmaking has not become the object of specific scientific researches. 1 Nevertheless, the phenomenon of judicial practice in national legal system has been studied in scientific literature from different points of view. More often the status of this phenomenon is analyzed: a source or a form of law. 2 It is in this dilemma that the issue of the court practice influence lies. Naturally, the problem can be eliminated if the court practice receives the status of law. Indeed, it is impossible to influence oneself: the law cannot effect the law.
The way from practice to law-making does not provide a clear vision of the case. The complete implementation of this conception is possible within the sociological approach only. Considering the ascendant positivist traditions the matter is not the reflection in the legislation of court (and other juridical) practice results through its direct assignment, but just the influence which either achieves its purpose or not.
Still if the court practice is not considered as a form of law, there rests its status as a source of law. It is from this very point that the urgency of the court practice influence issue follows. The essense of the word «source» suggests that someone draws something from it, that it contains some useful substance. So the balance between the court practice and law should be regarded in this connection. Such approach lets count on the need for court practice in the law-making process. In this article the lawmaking will be regarded as the creation of laws. It cannot be interpreted as underestimation of other regulatory legal acts. They may also be responsive to the results of law enforcement, but this subject demands its own profound analysis.
1 In 1968 V. P. Reytov defended his thesis «The Court Practice and Development of Legislation». In this research the subjects of juridical practice are represented by citizens, teams, legal persons and public bodies. The topic of the research given is considerably narrower — judicial practice only.
2 AdalkarievX. The Court Practice as a Source of Rulemaking // Soviet Justice, 1989. № 23. P. 14-15; Alexeev L. Judical Precedent: Lawlessness or a Source of Law // Soviet Justice. 1991. № 14. P. 2-3; Gadgiev G. A. Legal Positions of the Constitutional Court of the Russian Federation as a Source of Constitutional Law/ Digest Constitutional Justice in Postcomunist Countries. M., 1999. P. 106-117; Guk P. A. Judical Precedent in Russia: Theory and Practice // Jurisprudence. 2001. № 4. P. 50-60; Jyikov V. M. On the Issue of the Court Practice as a Source of Law / Digest Court Practice as a Source of Law. M., 2000. P. 78-90.
Our address to the influence of court practice is caused by the fact that interaction of the theory (in this relevance abstract norms) and practice represents essential dialectic process. The parallel existence of these categories is harmful for both of them. So the necessity of influence of juridical practice on the lawmaking is evident through combination of philosophical ideas of the theory and practice. Naturally, a regulatory legal act has a degree of abstraction in expressions. A legislator sets it up as a construction which has to develop mass public relations in the future, in other words, the rules of law pretend for typical character in the future. The legislator's forsight may be justified, but it also can be cancelled. It is practice, the judicial one in particular, that appraises the applicability of abstractive forms to real social relationships. M. N.rutkevitch, a profound researcher of the «practice» category, explained its role as a truth criterion. For legal phenomena «truth» is not a completely adequate concept. The terms «justice», «appropriateness», «rationality» would be more suitable. Nevertheless, the conclusions made by the researcher during the analysis of the science can be conditionally applied to legal events. Thus, a thesis about dialectic dependence between abstractions and practice seems exceptionally important: «The test by the previous experience is implemented in the very process of theoretical ideas formation»1.
M. N.rutkevitch reveals several ways of practice criterion effect. We share his opinion that «an indirect effect of practice criterion always takes place when testing theoretical suggestions. Naturally, in practice we get new emotions which are generalized in abstract notions and opinions. Consequently, new practice data applied for truth testing of judgement suggested by us should represent judgements itself»2.
This observation is exceptionally important for the analysis of the influence of the court practice on the law-making. To produce effect the court practice must take certain forms3.
Stable forms of the court practice reflection contain only integrated information about the «law» — «practice» systems balance but they already imply a solution to the problem (a gap, collision, etc. ). They take the form of a judgement already applied for settling real cases and in this way they carry information for a legislator (as well as for all subjects of law) about a certain suggestion. Other kinds of juridical practice are at a disadvantage comparing with the court one because they often do not have any shell, exterior form adequate for legislator's perception. Probably there may be some exceptions but the system of influence cannot base on a single instance. Chaotic examples as well as single experiments just prove the fact that practice can represent an absolute as well as relative criterion.
1 Rutkevitch M. N. Practice as the Knowledge Truth Criterion // Digest: Practice — Truth Criterion in Science. Moscow, 1960. P. 35.
2 Ibid.
3 Boshno S. V. The Ways of Court Practice Expression // State and Law. 2003. № 3.
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The theory of law traditionally examines the correlation of the following notions: law formation, law-making, legislation, legislative process. Here definitions are ranged descending their volume. Law formation «starts from the social situation analysis, the acknowledgement of the necessity of its legal regulation, common notion of legal order which should be issued, — and ends by the development and adoption of legal norm»1. The issues of law-making and legislative process are covered in fundamental works2, articles3 and textbooks4.
The lawmaking notion has made a long way of formation. Thus, in the Soviet legal science lawmaking was regarded as a form of public administration of the society completing the process of law formation and reflecting the social factors of this process by elevating the will of the ruling classes to the state of obligatory rules — legal norms5.
In the 80's of the XX century scientists suggested a considerable broadening of the «law-making» notion «aimed at embracing a much wider range of phenomena, complicated processes preceding the decision to prepare a draft of statutory act, revealing necessity in legal regulation of these or those public relations, direction and character of the regulation»6. Naturally, the legal norm quality is directly connected with the correct revelation of necessity in legal regulation. It is on this very stage that the norm's validity, its «compliance with general social ideas, degree of its influence on the legal regulation subjects behaviour and efficiency are exposed». Following the subject, law-making is defined as «state activity of revealing the necessity in normative legal regulation of public relations and writing new legal acts in accordance with the exposed needs, changing and canceling those in force»7.
According to A. S. Pigolkin, the peculiarity of lawmaking as a type of public activity lies in its orientation on creating, improving and canceling the law. «Law-making is an act of turning public will into a law, its constructing in obligatory statutory prescriptions»8, — as the researcher mentions.
As a rule, lawmaking is interpreted as an activity of competent bodies and people of issuing, processing and canceling statutory acts9. Focus on creat-
1 Theory of State and Law / under the editorship of BabayevB. K. Moscow, 2001. P. 320.
2 Lawmaking in the USSR / under the editorship of Mitskevitch A. V. 1978; Polenina S. V. Legislation in the Russian Federation. Moscow, 1996; Legislative Process / under the editorship of R. F. Vasiliev. Moscow, 2000.
3 Legislation — More Order and Coordination // Russian Justice. 1996. № 8; Kazmin I. F., Polenina S. V. Law About Laws: Problems of Edition and Contents // Soviet State and Law. 1989. № 12.
5
Theory of State and Law / under the editorship of Babayev B. K. Moscow, 2001. P. 320-351. Marxist — Leninist Theory of Sate and Law: Basic Notions. Moscow, 1981. P. 7.
6 Scientific Basics of the Soviet Law-Making. Moscow, 1981. P. 7.
7 Ibidem. P. 17.
8 Theory of State and Law / under the editorship of Pigolkin. Moscow, 2003. P. 276-277.
9 Theory of State and Law / under the editorship of BabayevB. K. Moscow, 2001; Vasiliev A. V. Theory of Law and Sate. Moscow, 2003. P. 157.
ing an integrated system of the rules of law is a typical feature of the lawmaking. Legislation represents a type of lawmaking distinguished by its result (a law) and source (legislative body)1.
«Legislative process is an established procedure of legalization and implementation into the law of social, political, economic and other interests»2. It implies reading of a draft law in a representative body. Thus, the term «legislation» is a connecting base of legislative work and legislative process itself. On the first stage a socially important idea takes the form of a draft law. The second stage implies its enactment. Therefore, it is legislation that represents an object of influence of the court practice.
Legislative process is influenced by a full range of factors not all of which will be reflected in a law-making decision. The influence means active and targeted effect. For its implementation the court practice needs to be structured and consolidated to meet the challenges of law-making. What is more, there is a demand for an interested subject which would contribute to this influence by his systematic efforts. If these conditions are observed, a legislator's perceptivity towards this influence can be estimated.
It seems that the process of exerting influence has some difficulties failing: 1) the court practice processing and accounting for the aims of law-making; 2) subject of influence; 3) consistency.
Considering the modern ways of the court practice influence on legislation, we will try to estimate them, on the subject of the absence (presence) of the requirements listed above in particular. It is supposed that such approach will contribute to suggesting some recommendations.
The court practice influence on legislation is exerted permanently. The ways of this influence differ but they have one thing in common: it changes the rules of law. The elements of these systems are represented by judicial bodies, on the one part, and by a legislator — on the other. If there is no mediators between the subjects mentioned, the influence is direct. With mediators (mass media, social unions and other people) the effect will be indirect. This classification is based on the presence (absence) of mediators between the system's elements (I). However, for direct influence an additional criterion can be considered: who has initiated this effect. On one's own initiative judicial bodies exercise their right to initiate legislation (1). The legislator may address the court practice for his own purposes as a source of suggestions for improving legislation (2).
Disputes concerning the status of the court practice in the Russian legal system give a reason to classify this influence according to presence (absence) of legal basis (II). The effect is divided into legitimate (1) and illegitimate (conventional) (2). Naturally, legal influence has its legal grounds (e. g. art. 104 of the Constitution of the Russian Federation for the right to initiate legislation). Illegal influence is exerted against legal rules and conventional — out of them, that is failing legal rules.
VengerovA. B. Theory of State and Law. Moscow, 2000. P. 415. Ibidem. P. 416.
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The influence may vary according to its consequences for the text of the rule of law (III). In the first case, the text is changed, edited, cancelled (1) through legislative procedures. The influence may avoid direct lettering but change its notion, its way of implementation by interpreting, developing legal propositions, analogies (2).
Another condition takes into account the form of law which is being influenced (IV): regulatory legal act (1), custom (2), agreement (3), etc.
The forms of influence by A. B. Vengerov: consolidating hands-on experience; overcoming wrong practice1. Classifications suggested above do not contradict the professor's conclusions. Their combination is possible. Negative law-making conforms with the overcoming of wrong practice. The establishment of the hands-on practice corresponds to the legislator's perception of the court work results. The right of court to initiate legislation is close to this option. As a whole the classification of A. B. Vengerov can be characterized as fruitful because it is based on the effect of the court practice: on its foundation a new prescription can be written and an old one may be cancelled.
There is no need in studying all the grounds of the classification as the same act of the legislator is called differently in various arrangements. Let's address the most popular ways of influence.
Legislative initiative of judicial bodies is a legal way of the direct court practice influence on legislation.
Legislative initiative seems to be the most efficient mechanism of the court practice influence on the development of law. The main feature of this way is the presence of certain legal grounds starting with art. 104 of the Constitution of the Russian Federation, relevant federal and constitutional laws, inner court acts2.
The search of a sensible balance in the work of judicial bodies, particularly between legislative and law-making activities, is complicated and disputable. Noteworthy, a division of any algorithm of activity provokes criticism: «It is clear that if instead of exercising its right to initiate a law a plenum issues guiding instructions containing a rule of law, it will be a violation of legitimacy, excess of jurisdiction. At the same time, if instead of issuing guiding instructions a plenum addresses a legislative body on the problem which it could and had to settle itself, it will also cause negative consequences»3.
The authors of a collective monograph devolve to the legal science the right to «establish an objective criterion which would define this or that activity of a plenum of the Supreme Court». However, they suppose that «evidently, legislative initiative is needed where there is a demand for controlling the categories of public relations, where the law currently in force does not regulate them on a nec-
1 Vengerov A. B. The Role of the Court Practice in the Development of the Soviet Law. Moscow, 1965. P. 239.
2 Refer to Boshno S. V. Legislative Initiative of the Supreme Judicial Bodies of the Russian Federation // Russian Judge. 2001. №12. P. 15-20.
3 Scientific Grounds of the Soviet Lawmaking / under the editorship R. O. Halfina Moscow, 1981. P. 129.
essary level and an emerging question deals with the whole scope of the most important sides of a type of social relations»1.
In this way of influence, despite its evidence, there are some problems. As a matter of fact, there is experience accumulation the results of analysis of which let us make conclusions about the state and effectiveness of the legislation currently in force. Simultaneously, in fact, parellely, without crossing the process of introducing draft laws of the supreme judicial bodies takes place. The number of draft laws introduced by these subjects makes up no more than 1% of the total volume of initiatives. Most of them are of constituent character in parts concerning judicial system, more rarely — other subjects of legal regulation. Notably, among them there is practically no laws specifying the law by amending, changing in sectors forming laws — civil, criminal, administrative codes. Paradoxically, however, possible to explain, mine of ideas for legislation does not assumes additional commitments in the form of active assistance in legislative process. Explanation is seen in casuistic wording of art. 104 of the Constitution of the Russian Federation fixing that judges introduce draft laws on the subjects of their competence. The legislative experience has demonstrated functionality of this restriction (what does not, however, reflects its necessity and objective utility). There are also some other reasons of the law activity of judicial bodies in the parts dealing with exercising its right of legislative initiative. They seem not to see in it their special challenge, proceed from the priorities of enforcement activity. Avoiding lawmaking they get the possibility not only to feel themselves as an independent branch of power, but also to be an arbiter of other public bodies work.
Despite the meaningless of such a restrained position objective social harm should be taken into account. It is seen in judicial bodies playing the role of a dog in the manger. They do not use the empiric material and do not pass it to other people. Of course, they never prevent other subjects of the legislative initiative right to make use of their analysis result. Nevertheless, the established administrative practice with the stereotype of inaccessible judicial power do not contribute to any systematic interaction. For other subjects of the right to initiate the law the conclusions of the court practice are an atypical source of information. They lack the skills for working with such documents. At the same time, for judicial bodies this material is scrutinized and, therefore, understandable.
2. A legislator's perception of the court practice is a kind of direct influence. In this way of influence two opportunities can be pointed out: in the first case a legislator perceives the results of courts' trying certain cases. It is a way in which a legislator acts by situation. In the second case legislative body turns established practice, the line of the law-enforcement activity detected by his own initiative, into statutory act.
Let us address the perception of individual law-enforcement acts. In this case the court virtually substituting legislator creates regulations in individual
1 I bidem. P. 130.
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law-enforcement acts. Then this or that solution is fixed in common rules of law. The criticism of such activity seems to be well-grounded. The mechanism has considerable disadvantages to which «can be added popular challenge of regulations contained in individual acts»1. Essentially, there are certain obstacles on this way. It lies not only in substitution of legislative body by the judicial one, but also in the fact that the character of the court practice is not completely defined, what makes the position of a legislator ambiguous.
Law-making knows the way of the court practice influence on the legislator which combines two forms of impact. On the one hand, this practice is direct, on the other — illegitimate. We talk about the implementation of a new rule of law in the decree of the Constitutional Court of the Russian Federation № 12-P from 31.10. 1995 with reference to the term interpretation «adopted law». In this judicial act a totally new form of law was created — the law of the Russian Federation. At that time no such act was mentioned in any regulatory act including the Constitution of the Russian Federation. The influence of the judicial body on the law-making process turned to be crucial. In 1998 the Federal Law «About the Order and Enactment of Amendments to the Constitution of the Russian Federation» was passed, which legalized this form of law.
The ambiguity of the situation is clear as, in fact, the legislator shielded the doubtful result of the judicial body work with his authority.
The Constitutional Court experience lets us state certain tendencies: this body turns from judicial and supervisory into legislative. Loose construction, legal views, legal terms defined by this body contribute considerably to the current legislation, form its proper understanding. Single character of the example given proves the fact that, in general, the Constitutional Court of the Russian Federation does not need legislative consolidation of its legal condition. Actually, in the future this body will easily refer to the legal views defined earlier by itself together with regulatory legal acts. 2 It seems the similar assignment of legislative powers does not correspond to the principles of competency and legitimacy of the rule-of-law state. Another tendency that should be pointed out as disturbing is the substitution of the legislator with the law-enforcement body as well as approval of such practices by certain researchers3.
Consequently, single episodes of the court practice reflected in the decisions on certain cases should not be used directly by the legislator as they make his decisions vulnerable. The established law-enforcement practice line only should be perceived by legislative bodies.
3. Court practice may change the sense of the rule of law. In its work
1 Reutov V. P. Above-noted composition. P. 90.
2 Under statistics if the Legal Information System Consultant Plus, the Constitutional Court of the Russian Federation refers to its own legal positions in 80 decrees minimum.
3 Such statements belong to R. Z. Livshits. See The Court Practice as the Source of Law. Moscow, 1997. P. 4; Terukova V. V. Legal Acts in Constitutional Justice Administration. Thesis, Candidate of Legal Sciences. Moscow, 1999 and others.
the court improves (as it imagines) legal regulations. This function of the court practice was described by A. B. Vengerov: «It is typical of the court practice regulations in civil law to add, amend certain elements of already existing rules of law — disposition, assumption, sanction of a norm. After that, acquiring considerable public and political meaning they transform into the rule of law.
Thus, the regulation about the consequences of rendering ineffective a warrant, stated in the Plenum decree from 25.03. 64 became the rule of law and introduced into the legislation the definition of a family member elaborated after years of the court practice»1.
This work of judicial bodies may be recognized legitimate conditionally only. On the one hand, such improvement of legislation through the court 's contribution to its content does not fully correspond to the legislation. On the other, they are inevitable including for current legislation. Real possibilities of this point are not equally applicable to all branches of jurisprudence. Thus, for criminal law they are not suitable and for civil one — essential. In the literature there is an absolutely well-grounded opinion that it is typical of civil legislation «to have a considerable number of rules of law with relatively definite and indefinite elements. For example, the Civil Code of the Russian Federation contains such points as reasonableness of actions and honesty of civil relationships members (art. 10, the Civil Code of the Russian Federation) and the whole range of similar categories demanding specification in the court practice, juridical meaning to the various actual circumstances at court's discretion. Therefore, the role of the court's discretion and judicial interpretation is growing, which demands a radically different approach of judges towards adjudgement, creative law application»2.
The ways of the court practice influence mentioned above show the opportunities of the substantial change of law (replacement by the new one, revocation, changes in understanding) in connection with the relevant court practice. Nevertheless, its procedure seems no less important:
— direct involvement of courts in law-making process;
— interpretation of rules including normative and casual.
The transforming role of judicial bodies in the first option is evident and undeniable, whereas the path to the second option acknowledgement is far more thorny.
The fact that interpretation is exceptionally important activity is undoubtful. It is clear from the very premise of the interpretation necessity: incomplete law, gaps, contradictions and other drawbacks of legislation in force. Not surprisingly, it is the official interpretation including its relation with law-making that numerously became the object of scientific researches3.
To sum up, it is preferable to improve legislation during the law-making
1 Vengerov A. B. The Role of the Court Practice in the Development of the Soviet Law. P. 257.
2 Reshetnikova I. V., Yarkov V. V. Civil Law and Civil Process in Modern Russia. Moscow, 1999. P. 11-12.
3 See Voplenko A. I.: u The Rules of Law Official Interpretation. Moscow, 1976; Kosheva V. V. The Acts of the Rules of Law Judicial Interpretation. The Theory and Practice Issues. Thesis, Candidate of Legal Sciences. Saratov, 1999.
procedure. However, the judicial interpretation is also a legitimate form of legislator's will revelation. It is the limits of interpretation which are important.
4. The importance of indirect influence is also considerable. It implies establishing in legislation the results of the court practice detected by different ways.
This kind of the court practice influence on legislation was continually marked by researchers. Thus, U. S. Gambarov noted some novelties in the Russian legislation taken from judicial practice. As disadvantage the researcher sees «the lack of energy» in this process, but gives it a positive forecast1.
The difference of this way of influence consists in the fact that results of the court's work can reach legislator not only through judicial bodies, but also through other channels. In this case initiator is the legislator himself, who detects a problem and decides to give it a legislative form.
The other form of indirect influence on law-making is introducing into legislation information about law and order. This data is elaborated as a result of certain people's perceiving of the work of judicial bodies. This source does not have demiurge, they do not imply any formulated future rules. Here the legislator is influenced through criticizing current regulatory legal acts. The peculiarity of this way of influence is that information is negative «in the sense that it does not contain a prototype of the future rule of law»2.
The influence of this type is not always evident. What is more, to involve it in scientific rotation social data, mass media and other sources which induced the legislator towards certain decision are used. By this way the society gets the information about legislative gaps, contradictions in different acts and also data for public use. They are of empiric character and are not specially designed to deal with certain legislative tasks. To define whether the legislator used this information or not is complicated. Nevertheless, there are examples when legislation draws novelties from the court practice, which have been exposed as gaps of the law in force. For example, «according to O. C. Ioffe and U. K. Tolstoy, a number of rules appeared in a code as a result of a certain reaction on false court practice and is called to deal with it. Thus, to overcome wrong trends of the court practice related to the responsibility for harm caused by a fully disabled person in art. 450, 452 of the Civil Code of the Russian Soviet Federated Socialist Republic, the principle of liability.
Consolidating the established court practice, new civil codes have given courts the right to recognize as valid a deal which demands notarial certification but is not formalized in a proper way if it does not contain anything illegal or has already been half satisfied»3.
Despite the practice of judicial bodies having been influencing lawmak-ing indirectly over the centuries, there is no reason to talk about it as of the real mechanism. First of all, this way is doomed to be episodic by its own nature. This
1 Gambarov U. S. The Civil Law Course. Vol. 1. St. Peterstburg, 1911. P. 232.
2 Reytov V. P. Decree. Works. P. 126.
3 Vengerov A. B. The Role of the Court Practice in the Development of the Soviet Law. P. 257-258.
fact deprives us of the opportunity to state consistency which we emphasize as a sign of influence. This activity lacks procedure and legal mechanism. The legislator's reaction is unpredictable.
However, this line of influence has an outlook. It is predetermined by the uprising of the civil society which is supposed to become more demanding while developing. It is a subject perceiving the information about the courts' work. Accumulating it, the civil society should demand from legislator proper changes in the system of regulatory legal acts.
5. The ways of influence can be conditionally and very roughly divided into legitimate and illegal ( conditionally legitimate). This division is made according to the real impact of the court practice not always being based on legislative ground: it does not contradict the law as there is no law or it contradicts the law as it does not allows it directly.
We proceed from the presumption that direct work of judicial bodies has no purpose of destroying the legal framework of the state. The source of their energy is not the will to act in spades of the legislator but the necessity to make well-grounded and just decision using all the resources including the analogy of law and loose construction.
However, it is not the influence of legislator but direct law-making in the acts of judicial power. This method in the introduced classification was relates to the direct and illegitimate ways at once.
Direct influence of the court practice on law-making is rather arguable issue, especially for cases of direct judicial work. In this option law-enforcement activity turns into law-making and the acts of judicial power become the form of law.
According to S. F. Ketchekyan, «some acts of the supreme court instance create new rules of law obligatory for the lowest judicial bodies and, consequently, represent the source of law»1. The researcher links direct law-making of the highest judicial agencies to the fact that. «The Constitution of the Russian Soviet Federated Socialist Republic of 1924 empowered the Supreme court of the USSR to give guiding explanations to supreme courts of union republics about all-union legislation. By virtue of it guiding explanations of the Supreme Court Plenum got the status of the source of law».
We do not share similar appraisal of the Constitution 1924 as we link the term «explanation» with «interpretation», not with the creation of the rule of law. It can be supposed that the establishment of the construction «interpretation = source of law» was invented hardly occasionally to prove the cases of judicial bodies breaking the limits of interpretation.
Interpreting the legislative bases for explaining S. F. Ketchekyan himself broadens considerably the legislative text. Thus, for example, he saw the competence to create new rules of law in art. 75, the Law about judicial system of the USSR. As it said, «the Supreme Court Plenum of the USSR gives explanations
1 Ketchekyan S. F. The Soviet Socialist Law and their Sources. Works of anniversary edition of the Academy of Social Studies. 1948. P. 181.
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about judicial practice on the ground of decisions which were taken according to the cases tried by the Supreme Court of the USSR»1. From our point of view this act delegates no law-making functions to the court but limits it with interpretation.
Ketchekyan gives certain examples of new rules of law establishment for guiding explanations: the decree of the Supreme Court Plenum of the USSR from September 21st,1939 about the order of salary payment to the workers and servants released from under guard and the decree of the Supreme Court Plenum of the USSR from April 15th, 1943 «About the compensation of damage to institutions, enterprises and organizations for stealing, loss or damage of returned to them iterms». D. A. Kerimov proves this trend of judicial work by other examples: the decree of the Supreme Court Plenum of the USSR from June 20th, 1942 № 12/m4/y «About the qualification of sowing and crop damage on soils for collective and individual gardens of workers and servants» and the decree of the Supreme Court Plenum of the USSR from December 24th, 1942 №21/m/25/y «About the court practice related to moonshine making» and others.
D. A. Kerimov notes that «these decrees were caused by emergency conditions of wartime, when certain public relations which demanded immediate legal regulation could be settled by way of exception through the law-making work of the Supreme Court Plenum without considerable changes in legislation in force»2.
Granting the status of the source of law to the decrees of the Supreme Court Plenum of the USSR, S. F. Ketchekyan appraises even higher some groups of similar cases: «Giving guiding lines to the courts, the Supreme Court deals with issues of law enforcement stemming from the courts' work and at the same time elaborates some common principles and rules of law which make up for the law in force and are obligatory for the courts in their future work, whereby relevant decrees should be acknowledged as a source of law»3.
Analyzing the Civil Code 1986, A. L. Makovsky concluded: «In the Civil Code quite considerable place belongs to the points elaborated by years of experience which, in fact, had had the status of the rules of law even before the adoption of the Code»4. Thus, for example, the decree of the Supreme Court Plenum of the USSR from April 10, 1957 № 2 «About the court practice of legacy cases» was applied for elaborating rules of law: about the commencement of succession (art. 528), the moment from which the legacy is acknowledged the successor's property (part 5, art. 546), about the prolongation of the term for accepting an inheritance (art. 547), about transmission (art. 548).
Decades separate us from the examples given, but modern episodes prove the consistency of this tendency. U. E. Terukova is a follower of acknowledgement of certain kinds of the court practice as a form of law and correspond-
1 Ibidem.
2 Kerimov D. A. The Sources of the Soviet Socialist Law. Thesis, Candidate of Legal Sciences. St. Petersburg, 1950. P. 343-345.
3 Ketchekyan S. F. Op. cit. P. 181.
4 Makovsky A. L. The Evolution of the Soviet Legislation Classification. Moscow, 1986. P. 140.
ingly, a direct influence. She came to this conclusion in the result of research of rules of law adopted in the process of constitutional administration of law. The researcher considers that «final acts of constitutional bodies adopted after address can be law-making as they amend the system of rules of law in force»1.
The judgements mentioned above about the direct law-making function of the court link with the acknowledgement of judicial process results as forms of law by the fact that they have no legislative foundations. The followers of these ideas are satisfied by indirect delegation of some functions which do not represent direct administration of justice to some judicial bodies. Analytic, administrative and organizational functions of courts are interpreted by themselves as lawmaking. In any case, if the law enforcement official crossed the limits of legislation, he becomes the legislator himself. Correspondingly, there are no reasons to consider such work as juridical practice because of its illegality.
There is another tendency of the real influence on further practice. According to G. V Demchenko, this old tradition «has been developing in works of Gradovsky, Tagantsev and others. The basis of this tendency is the learning about the types of interpretation (scientific, judicial, legislative or legal). According to these researchers, judicial construction, though only within this case, takes binding force; it influences by the power of its inner authority, though the element of coercion is also typical for it because sound elements of justice and social ethic demand common law to be applied to each case in the same sense it has already been enforced to another similar case»2.
The stabilizing influence of the court practice has been numerously mentioned in academic literature. Addressing this form of influence and its followers, it should be said that positive, stabilizing practice can turn into conservative one and, correspondingly, it can oppose the development of law. Nevertheless, the element of constancy, predictability, stability is certainly good for the court practice. It is especially important when the legislator has spoken not very clearly leaving much space for judge's discretion3.
6. The influence of the court practice cannot be identified with lawmaking. In the science of our country there has always been enough of followers of judicial lawmaking. On the whole, without approving the legislators' acknowledgement of the courts, the following things should be mentioned. The position about «the negative lawmaking», which takes place thanks to decisions canceling standard acts or prohibiting its implementation, is presented quite extensively. The term «negative legislator» was included in law dictionary thanks to the
1 Terukova U. E. Op. cit. P. 4.
2 Demchenko G. V. Judicial Precedent. Warsaw, 1903. P. 150.
3 This trend of the practice's influence on law-making was mentioned by G. V. Demchenko: «The precedent which comprises an established and stable judicial practice in this or that problem guides a judge, sometimes delivering him from the necessity to try legal nature of a new case and, anyway, deals with his personal doubts. The precedent represents a serious reason which can and even must control hesitation and whims of personal opinion». See Op. cit. P. 151.
authority of professor G. A. Gadgiev1. According to him, the lawmaking is the creation, amendment or cancellation of standard acts and each of this actions is an independent type of this process.
Justifying his opinion about the law-making function of constitutional control bodies, U. E. Terukova writes: «The term «lawmaking» is involved in the process of rule-making as well as in its amending and canceling, as it is logical and well-grounded to acknowledge as lawmaking any actions of the authorized subjects direct consequence of which is this or that change in the complex of rules of law. Such shift can be consequence of adding something new to the complex and also of eliminating or amending one of its parts — all these are actions aimed at creating the other system of rules»2.
These points seem well-grounded but not to the highest degree. On the one hand, these powers are independent, on the other they represent an integration in the sense of competence of the public power body. In certain circumstances it can implement one of its powers, but its competency includes all three. In view of the things said above, the legislation in force does not empower judicial bodies with legislative functions.
Despite court decision, the acts which acknowledge regulatory legal acts as inadequate to superior acts or flawed with something else remain as elements of the objective system of legislation till the decision of a legislative body about its cancellation is taken.
7. The elaboration of legal points «consists in the fact that between individual acts and rules of law there can be the result of law enforcement in the form of regulation fixed in regulatory act of a department or in guiding interpretation of the Supreme Court Plenum. This is a gradual shift of regulations elaborated in practice from individual acts into common rules through interim forms»3.
The examples of such influence have been numerously cited in literature of different times. The legislative experience of our country also shows similar examples. «These are, for example, the rules of law which preview mixed responsibility in civil law. The principle of mixed responsibility was first implemented by the court practice in 1926. The Report of the Civil Cassational board of the Supreme Court of the Russian Soviet Federated Socialist Republic of 1926 contains this information. Later the principle of mixed responsibility was confirmed in the range of judicial acts of the USSR Supreme Court on certain cases.
Summarizing these cases, 10 June 1943 the Supreme Court of the USSR adopted a decree about the court practice based on trespass in which established the rule elaborated in its practice»4.
The next stage is «The Rules of Restitution by an Enterprise of Damage
1 Gadgiev G. A., KononovA. L. The Constitutional Court is negative legislator // Legal World. 1998. № 3. P. 27-41; BoikovA. The Dangers of the Negative Law-Making // Criminal Law. 2000. № 4. P. 78-83.
2 Terukova U. E. Op. cit. P. 11-12.
3 Reytov V. P. Op. cit. P. 98.
4 Ibidem. P. 99.
Caused to Workers and Servants in the Form of Maim or other Injury to Health connected to their Work». Further — art. 93 Fundamentals of legislation. Further — art. 458 The Civil Code of the Russian Soviet Federated Socialist Republic of 19641.
8. The following form of the court practice influence seems quite accurate and well-grounded — «improving the legislation in technical and editorial sense»2. The meaning of this form of influence increases in proportion to the decrease in legislation quality and the growth of disbalance in the system of law.
«First of all, it means establishing the limits of implementation of this or that form on a certain stage of law evolution. The court practice exercises such operation through establishing those legal rules which were cancelled when their revocation was not direct, that is through direct indications on regulatory legal acts which are to be cancelled, but derives from the content of a new regulatory act or wording of quite general character. Firstly, it implies certain changes in the wording of a law, editing according to the will of a legislator. Also, the involvement of court practice in eliminating possible discrepancy between the rules regulating the same relations can be included to this form of influence. Such discrepancy is often caused by the absence in a law of direct indication to the consequences produced by a regulatory act in respect of an earlier one and related to the same category of public relations. Of course, the role of the court practice in eliminating such discrepancies and deficiencies is auxiliary as in the long run these discrepancies and deficiencies are edited by a legislator himself»3.
9. The influence of the court practice on law formation cannot be brought to effecting the system of regulatory acts. The impact on customs, doctrine and other forms should not be underestimated. In academic literature there is an approach according to which parent case is a custom of the court practice. The difference between the precedent and judicial custom consists in the fact that the second one is a plural precedent whereas there also exists a single one.
Additional facets of custom and court practice interaction in connection with the international legal experience were revealed by T. N. Neshataeva. The court practice, according to the professor, represents a vessel for accumulation and simultaneously the content of non-conventional (first of all, common, dogmatic) forms of law: «The practice of a national court in various forms may prove the evolution of common rules of international origin, which is a quite stable trend of court practice in many countries in the world»4.
We suppose this is another facet of the court practice influence on the
1 Ibidem. P. 138.
2 Nashits A., Fedor N. The Role of the Court Practice in the Rules of the Socialist Law Forming and Improving // The Soviet State and Law. 1964. № 5. P. 26.
3 Ibidem. P. 29-30.
Neshataeva T. N. Foreign Businessmen in Russia. Past-Arbitration Court Rulings. Moscow, 1998. P. 41.
system of legal sources. It acts as arbitrator accumulating practical experience, evaluating it. Judicial decision becomes a certain form, cover, in which there is a habit. Quite often it has no other cover. For example, it is oral or represents consistency of certain actions.
The court practice influence on legislation is not sufficient yet. The intensity of this process depends on objective as well as subjective conditions. Objective ones reflect the state of legislation , subjective — participants' will. Low activity in opposing motion is characteristic of legislative and judicial bodies. There are more than enough of objective conditions. Thus, great potential of the court practice effect is seen in the fact that it is defined as judgement in which there is a rule ready for perception. The most adequate is idea-borrowing from such form of the court practice reflection as plenum's decree of supreme judicial bodies. Legislative initiative of judicial bodies is the most preferable way of influence. Judicial bodies which detected a gap and composed a regulation will deliver its idea more clearly in a draft-law. It should not be interpreted as decrease of the role of other ways of influence. Various interaction of different public bodies and official is to serve the purpose of legislation improvement.
Taking in account the diversity of the ways of the court practice influence on legislation, the most applicable one is defining its forms according to the subject of transmission and connection to the law. It is impossible to perceive indifferently illegitimate ways of influence — to find explanation is even worse. Legal direct ways of influence where it is judicial body that initiates the process, is more preferable. In this way misinterpretation of a rule in law-making will be minimal.
The dualism in estimating the efficiency of the ways of influence can also be stated. On the one hand, the efficiency is higher for legal indirect ways, as a judgement worked out in practice will reach a draft law without mediators and with minimal changes. On the other hand, indirect means involve in law-making the institutes of civil society, which act as mediators between the court practice and legal acts. The norms elaborated with the help of citizens have an enormous potential of effectiveness.
The drawback of direct influence is unrestricted initiative of participants, that is they act on their own discretion. There are no rules obliging to initiate the legislation on this or that issue in the Russian law and it cannot exist in the existing doctrine. It will contradict to the principle of freedom of participants of the legislative process, but the same condition impedes consistency in the court practice influence on law-making. It is here where the activity of the civil society which can effect a legislator to improve legal acts — seems necessary.
The hopes for organized interaction of all branches of power to optimize the legislation have not come true yet. Also there are no conditions for the future development of such interaction. Nevertheless, it is through the interaction of different bodies only where the concept of separation of powers may really function. The existing legal norms are enough to implement this idea. By virtue of their basic
— law-enforcing — activity judicial bodies possess information about the state of legislation including gaps. They have highly experienced staff capable of preparing high-quality draft laws. It is important that supreme judicial bodies have the right to initiate legislation concluding preparative works and which is of imperative meaning for a representative body. To sum up, judicial bodies possess professional and procedural resources to exert decisive influence on legislation. The will of these participants which will perceive the process of law improvement as the first task is needed.
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