Russian Journal of Economics and Law (Sep 2022)
Legal nature of judicial practice
Abstract
Objective: a comprehensive theoretical and legal study of the nature of judicial practice.Methods: the methodological basis of the article is postclassical rationality, which allows studying judicial practice in the context of its impact on the public relations regulation and establishing the legal nature of this phenomenon. This determined the integration of methods developed in the legal science (formal legal, comparative legal methods, method of legal modeling) and other humanities (hermeneutical, discursive methods).Results: the article considers judicial practice as an individual legal regulation, i.e. the activities of the authorized judicial bodies of the state aimed at consideration and resolution of legal cases, as well as the creation of individual legal foundations for the lawful behavior of subjects of public relations. The authors proceed from the fact that judicial practice is a unity of cognition, activity, and result, as it actively participates in the construction of legal reality. This leads to the conclusion that judicial practice should be understood dichotomically – as the activity of judges, the result of which is the creation of individual and generalizing legal acts aimed at constructing a legal reality (a specific form of legal communication), and as a material source of law (a set of generalizing legal acts (positions of courts) that have a legal impact on the consciousness and behavior of an indefinite circle of subjects of the same name).Scientific novelty: in the article, for the first time in the Russian legal science, a study of judicial practice is transferred from the level of sectoral analysis to the philosophical-legal level. At the same time, the authors emphasize the interdisciplinary, general humanitarian nature of judicial practice. The analysis and interpretation of judicial practice are carried out at the ontological and axiological levels of legal reality. This allowed identifying the specific role of judicial practice in the legal system as a means of communication between individual and general legal regulation.Practical significance: the main provisions and conclusions of the article can be used in scientific and pedagogical activities when considering the essence and content of judicial practice and its role in the creation and functioning of the Russian legal reality, as well as for improving judicial activity at all levels.
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