Известия высших учебных заведений. Поволжский регион: Общественные науки (Nov 2022)
On the issue of specifying the law principles and norms by judicial bodies
Abstract
Background. The concretization of the norms of law in Soviet and Russian juridical science has been actively studied on the last 60 years, while judicial concretization has not yet found its theoretical and legal justification and normative consolidation. This is due to the fact that the right of judges concretize norms and principles of law does not have a direct fixation in the legislation. Therefore, judicial concretization is not recognized by all lawyers. At the same time, the increasing abstractness of legal norms, the growth of social relations that require regulation, the emerging gaps in law, the need to overcome them and concretize legal norms, the need to establish uniform law enforcement confirm the idea of the need for a compensating mechanism, which may be the concretizing activity of judicial bodies. The purpose of this article is to consider the relevance of judicial concretization and its real implementation in practice. Materials and methods. This goal was achieved through determining the place of judicial concretization in the general theory of law, studying the scientific works of leading jurists of the pre-revolutionary, soviet and current periods, analyzing russian legislation, judicial practice of the highest judicial bodies containing the concretization of the principles and norms of law. In the study of the question posed, the dialectical method of cognition, analysis, comparative legal, formal legal, systemic were used. Results. The role of judicial concretization in solving problems of legal regulation is substantiated, its advantages over law-making concretization are indicated. The idea of the need for legislative consolidation of the right by the highest judicial bodies to concretize the principles and norms of law has been put forward, which will create a mechanism that would consolidate the legal status of the concretizing activities of judicial bodies and the application of judicial acts of concretization. Conclusions. Concretization of the principles and norms of law is possible not only by legislative and administrative bodies, but also by judicial bodies. It is implemented by the courts and is recorded in the acts of the highest judicial bodies. Due to the fact that law-making activity does not sufficiently take into account the needs for concretization of the principles and norms of law, judicial bodies, when considering specific cases, generalizing judicial practice, are forced to carry out such activities independently, and created legal positions by judicial bodies concretizing the principles and norms of law are applied in practice.
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