STATUS AND ROLE OF JUDICIAL PRECEDENT IN EUROPEAN CONTINENTAL LAW COUNTRIES

Abstract

The article examines the evolution of the status and role of judicial precedent in European legal systems, taking into account the processes of integration and globalization of law. It is substantiated that the traditional distinction between the Anglo-Saxon and Romano-Germanic legal families is gradually losing its rigidity: judicial practice in continental law countries is acquiring signs of normativity, and precedent is of systemic importance. A tendency towards the formation of a “European precedent space” is revealed, within which national courts and supranational jurisdictions, primarily the European Court of Human Rights, interact. It is shown that the decisions of the European Court of Human Rights, although they do not create a precedent in the classical sense, actually form the standards of law enforcement and perform the function of harmonizing the national law of the states party to the Convention. Based on a comparative legal analysis of the English doctrine of stare decisis and the doctrines of continental law, a further improvement of the vision of judicial precedent as an element of a flexible legal system that combines the stability of the law with the adaptability of judicial interpretation is proposed. The concept of the normativity of acts of the judicial power of a new type is substantiated, according to which the legal positions of the courts acquire normative force on the basis of legislative legitimacy, and not exclusively judicial discretion. The results obtained expand the doctrinal vision of judicial precedent as a legal phenomenon that combines the properties of normativity and compensatory nature in the system of sources of national, supranational and integration law. In contrast to the approaches established in science, where precedent is considered either as a form of law or as a technique of judicial interpretation, the article substantiates its synthetic law-making nature – as a mechanism of legal adaptation and self-regulation of the legal system in the conditions of European integration.