Judicial Law in the System of Constitutionalism: A Combination of Law-Making and Law-Enforcing Principles

The article presents the author’s understanding of the historical process of forming a national concept of judicial law in Russia, which was initially oriented towards defining codification and other system-forming principles of specialized legislation on the court, up to the development of a single, universal (for all types of justice) judicial code; the practical result of this was the formation of the doctrine of judicial law as jurisdictional legislation on the court. The features of the current stage of the formation of judicial law are, according to the author, connected with the regularities of the constitutional development of the judicial system as an independent branch of state power, which guarantees a high level of its independence, the possibility of judicial discretion in the search for a fair solution to the cases under consideration, bearing in mind the active development of judicial law-making. On this basis, it becomes possible, taking into account the peculiarities of domestic constitutionalism, its socio-cultural axiological characteristics, to implement judical law formation as a special way of forming atypical sources of law, which together constitute the “law of the court”. The combination of jurisdictional-enforcement and law-making principles in judicial activity predetermines a qualitatively new level of development of judicial law in the system of national constitutionalism. The main regularity of these processes is the transition from legislation on the court (restrictive-positivist, jurisdictional-enforcement understanding of judicial law) to a broader, constitutional-legal understanding of judicial law, which is a unity of formal-legal, normativist principles (legislation on the court) and atypical sources of law as a result of judicial law-making, the result of the recognition of judicial practice as a special source of law. This conclusion is based on an integrative-sociological approach, considering the development and formation of judicial-precedent principles in the domestic judicial system, taking into account sociocultural, moral-ethical, doctrinal-ideological origins of judicial law. In this regard, the category of judicial law embodies: a) the unity of procedural-judicial and judicial-administrative legislation (“law about the court”); b) the outcome of judicial law-making as a process of forming “soft law”, which is intended to ensure judicial search for fair solutions, overcome legal gaps and the lack of uniformity in judicial practice on specific issues, resolve collision contradictions in legal regulation, etc. An important condition for the successful development of judicial law is its constitutionalization, including based on the legal positions of the Constitutional Court of the Russian Federation, which possess a unique normative-doctrinal nature.