The dissertation is devoted to the complex research of legal precedent, the analysis of its role in the system of sources of the law in various legal systems of the world at the current stage of social development. The state of scientific elaboration of the problem of legal precedent recognition as a source of law in various legal systems of the world is revealed.
The analysis of the genesis and evolution of legal precedent as a source of law with the use of modern scientific approach is carried out revealing the issues of its legal force and features of its use as a source of law in various modern legal systems.
The particular research provides a comprehensive theoretical understanding of the legal precedent, defines its concept, role and legal force in the system of the modern sources of law; the tendencies of its development as a social and legal phenomenon are indicated and proposals are given for its formalization as a source of law in countries where it is not officially recognized, due to its significance and exclusive legal nature.
For a long time, Western theories, recognizing judicial precedent and giving it a prominent place in the system of legal sources, were severely criticized by many notable scholars of the pre-revolutionary and Soviet period, who denied any manifestation of law-making in judicial activity and formed ideological attitudes in their works. In addition, the term «judicial precedent» or «judicial practice» was used much more frequently than «legal precedent», which in turn greatly narrowed the concept itself. Examining sources of law, scholars viewed precedent as a legal phenomenon peculiar only to the legal systems of countries developed under the influence of English law within the Anglo-Saxon legal family
A comprehensive historical and theoretical legal study of the concept and essence of a legal precedent was carried out by summarizing and systematizing the main scientific approaches of domestic and foreign doctrine; the main stages and trends of the formation and development of a legal precedent as a source of law in various legal systems of the world are considered; the legal nature of the legal precedent is investigated, its features and types are identified and systematized.
The distinctive author’s definition of the concept of “legal precedent” was formulated; clarified the role, place and legal force of a legal precedent in the system of sources of law by examining the nature of its connections and interaction with other sources of law.
A comparative analysis of the forms of manifestation and legal force of the legal precedent in the legal systems of the countries of the Anglo-Saxon, Romano-Germanic, traditional and religious legal families is carried out; analysed the forms of the external manifestation of judicial discretion and the process of entering a legal precedent both in historical retrospective and in modern conditions. Justifiably the exclusive role of a legal precedent in the system of sources of law and the possibilities of its legalization as a source of law in countries where it is not officially recognized, with the aim to develop further appropriate proposals and practical recommendations for using it as an effective legal regulator.
A review of scientific research on a given topic shows that different periods of study of the legal sources in general and particularly the precedent, have always been in the focus of domestic and foreign scholars. However, while examining precedent as a source of law, the main focus was given to judicial law-making, judicial precedent, which is created by judges as a result of considering specific cases, which in turn led to an explicit one-sidedness of the study.
In addition, scholars have generally considered precedent as a legal phenomenon unique to those countries whose legal systems developed under the influence of English law within the Anglo-Saxon legal family, ignoring the actual existence of legal precedent as a source of law in other legal systems where it was not officially recognized by the state.
It is obvious that the issue of systematization of sources of law in modern conditions and clarification of the role and place of legal precedent as a source of law require appropriate comprehensive research.
The theoretical and legal solution of these issues will not only contribute to the expansion and systematization of theoretical knowledge on legal precedent, but also directly will have a direct positive impact on improving the efficiency of law enforcement activities of public authorities, which also determines the relevance of the dissertation.
