Judicial practice as a source of law on issues of participatory democracy

Abstract

The article is devoted to an objective analysis of judicial practice as a source of law on issues of participatory democracy.

It is emphasized that the problem of recognizing judicial practice as a source of law has long existed in legal theory and continues to interest legal scholars. Issues of participatory democracy as a subject of consideration by courts at different levels are characterized by insufficient research and the presence of controversial aspects. The resolution of the dispute regarding the recognition of judicial practice as a source of law contributes to the closure of many more general questions of the theory of law in the direction of its modernization and approximation to the requirements of European legal understanding.

Arguments are given for recognizing judicial practice as a source of law, but it is noted that judicial practice is a secondary, formally optional source of law. A single reference to it is not enough, it must be combined with a reference to the corresponding formally binding source of law (legal act, legal contract, etc.). However, this thesis does not apply to cases where the state directly indicates the binding nature of the conclusions set forth in the relevant judicial acts.

It is emphasized that, despite the existing features and specifics of judicial practice and judicial precedent, the majority of scientists quite justifiably consider these phenomena as identical and interchangeable, and moreover use the same name «precedent» or use the terms «jurisprudence», «legal position».

It is emphasized that issues of participatory democracy, due to their widespread distribution and actualization in recent years, have become the subject of consideration by courts of various levels in many countries of the world. Today, a certain judicial practice has been developed on them, which complements the legal component of the concept of participatory democracy. In Ukraine, judicial practice can be attributed to the sources of law in the case of gaps, ambiguities, legal conflicts in normative legal acts. Only under the conditions of recognition of the possibilities of justice’s participation in the creation of law will progress on the path to an effective system of justice, proper provision and protection of human rights, hence the establishment of the principles of participatory democracy, become possible.