Judicial (legal) precedent, legal custom.
In legal literature, there are the following sources of law: judicial (legal) precedent, the judgment of the case, which is a model for the resolution of similar cases to which the state gives the universally binding.
Prof. S.A. Komarov understands «judicial (legal) precedent, written or oral decision of a judicial or administrative authority, which has become a benchmark model (rule of conduct) when considering all future similar cases in the future».Judicial precedent is widely used in Great Britain, the USA, India and other countries. This is a good, fair judgment that is a reference in the resolution of other similar cases.
Precedent can be both judicial and administrative. It provides a judge or official challenging opportunity for personal discretion, as in the absence of a complete analogy of life experiences they have the right to assess the degree of similarity of the circumstances under consideration. And not necessarily in all previous precedent decision, and only the essence of the legal position of the court which made the original decision or verdict.
Legal precedent means a written or oral decision of a judicial or administrative authority, which has become the norm, standard, pattern (rule of conduct) when considering all future similar cases in the future. This initial decision shall become binding for all, in other words, receives state support.
Level and degree of understanding of legal phenomena of antiquity should be evaluated, keeping in mind, first of all, still largely prevailed syncretism spiritual culture in general and the indivisibility of the forms of social consciousness in particular.
Therefore, even if, in the ancient treatises and other sources we can not always meet the direct use of the term «legal system», though understanding the integrity and the unity in the total interconnected and interacting system of legal, governmental, political and other events is contained implicitly, as a matter of course that does not require much explanation and evidence.
This situation is much the stored video which came to us in conventional systems, or as they are called now, folk, indigenous, international law, legal pluralism. To a large extent this situation exists now in the Anglo-Saxon common law, where the sources of law, in addition to laws, are recognized as legal precedent, academic commentary, according to the authoritative legal scholars, judicial interpretation.
Now increasingly express the view that emerged in the modern era for the first time in the U.S., in the U.S. Constitution the separation of powers, the institutions of common law, democratic pluralism, and others are non-European origin. It is possible that the idea of Montesquieu and other European scholars, the practice of political pluralism and participatory democracy were adopted. They existed in the original form of the cultural achievements of the Incas, the Aztecs, Mayans, and numerous other nations. If anything does not arise out of nothing, how and where in Europe and in European conquerors in the Western Hemisphere in the XVIII century, suddenly emerged as a fruitful legal ideas, institutions, and relationships?
Of course, the legal heritage of Aboriginal people in the western hemisphere was ably interpreted from time and position of the new European culture, in conjunction with the achievements of Greek science and Roman law. But the question about the primary source of ideas of Montesquieu and the U.S. Constitution is not entirely clear and remains largely open.
Russian author A.B. Dorohova the «round table» magazine «State and Law» in 1999, one of the effective protection of human rights is considering legal precedent, because, she says, the constitutional declaration of rights the highest value, given the current situation in Russia, there is only a «statement of intent», but it has not received so far incarnation in life. Therefore, she said, the main role in solving this problem should be given to courts as organs of the rights and freedoms of citizens and enforcement ofjudgments on the most important social issues as a precedent when considering similar cases.
Agreeing with the large role of legal precedent, it should be noted that the problem of human rights can not be limited to a particular group or rule of law and institutions. We believe that a more or less tangible progress could be achieved with systematic approach to the legal sphere and optimizing relations: the legal system and the legal system, the rule of law and the welfare state, social, economic, political and legal system.
This optimization should be reflected in the underlying instruments and, above all, the constitutional foundations of the legal system, since the Constitution is a powerful factor in law-making, both in terms of direct action of its rules and regulations by the orienting effect on the legislative process. The Constitution is the main regulatory criterion of interpretation and application of all legal acts and committing legal action in the legal system guarantees the rule of law the law is designed to ensure legal stability and succession even when political and other changes in society.
Legal (authorized) tradition - one of the most ancient forms of law. Legal practice is a rule of conduct, which by frequent repetition becomes a habit, passed on from generation to generation, and is protected by coercive power of the state. Legal practice in fact is a state-sanctioned rule of conduct, which was confirmed in the society as a simple result of a long tradition in the frequency and has become a tradition. Stories are many cases when the customs of the tribal system, transforming, gradually escalated into an authorized customs. The most common practices in the tribal system had customs and traditions of blood revenge, «an eye for an eye, a tooth for a tooth», so-called the principle of «retaliation». These customs gradually replaced by a fine and a penalty as the stratification of society into groups already acquired differentiated.
It is now possible to speak of «rehabilitation» and «legalization» in the legal system of the ancient Kazakhstan (traditional) source of law, custom, and, accordingly, such as the forms of law, common law.
Brief note on the issue of separate eligibility criteria of the law: with regard to Russia such «clear» criteria «respectively letter and spirit of the Constitution» are: for the standards expressed in the law - compliance with the Constitution, to the rules contained in the normative acts, and other sources of law (law treaty, the legal tradition), - compliance with the standards expressed in the federal laws, statutes and laws of the Federation and, ultimately, in the Constitution, to the rules contained in all of the sources of law - compliance with the basic rights and freedoms of man and citizen, in accordance with the principles and norms of international law, enshrined and guaranteed in the Constitution as a direct effect.
J. Balasaguni addresses such legal edification to people of all classes, professions, and titles. «The ignorant, despised the laws of propriety, be despised by all who know the custom», «Hear what Beck said, appreciated the law, legal custom, he ruled», etc.
In particular, it is now possible to speak of a «rehabilitation» and «legalization» in the legal system of Kazakhstan this ancient (traditional) source of law, custom, and, accordingly, such as the forms of law, common law.
Before talking about the «rehabilitation» and «legalization» of customary law, consider once again the attitude to the word «civili- zation». This term, if ever had a meaning, from the frequent repetition seems to have lost this sense of all. The word «civilized» is used with the tenacity and the level of understanding of the parrot. Our reproach marginally related to the author K.A. Alimzhan, it is addressed to many more established people in science, politics, and, unfortunately, in the culture and law. Civilization (technological, scientific, technical, customer, etc.) is the main culprit for the weakening of the real culture, replacing it with substitutes of «mass culture» and the cause of the collapse of society and man, has led to many environmental disasters of mankind.
In general, this process called partial rehabilitation and legalization, feels so much timidity, inconsistency, incompleteness, which is doubtful all evaluated as a new phenomenon in the legal system, the more it is little evidence of revival going on for some elements of the traditional legal system, because it is used Even the term «customary law», to be replaced by a legally undefined term «custom».
The famous Russian scientist G.F. Shershenevich stated an opinion, which, in our opinion, shows just the opposite: «The court is obliged to apply the law, with little intended for ethical assessment of customary law, as well as legal standards...»As you can see, a Russian lawyer means not only a custom, but a rule of customary law, «... the existence of which is installed with the proper accuracy, and it should be applied by the court, even if contrary to the ethical views of the judges». All is definite and unequivocal. By the way, K.A. Alimzhan under the usual norm, may have in mind a rule of customary law, as in the title consumed a combination of the doctrine of custom (customary law). But in this case it is not clear why the rule of customary law, obviously, should be assessed in terms of a court of law?
All of this suggests that theoretical and legal studies which became relevant again disassemble problems of customary excuse behind the needs of the legal practice of re-emerging, and the formation of a new holistic legal system is impossible to ignore the vast array oftraditional legal system, national heritage legal culture. In this issue there are the same in many seemingly contradictory processes of revival and modernization of the legal system.
In the modern world of legal theory and practice of national revival - folk - Aboriginal - customary law is an organic part of modern legal systems modernization not only in the newly independent states, but also in developed countries. This is not surprising, since the entire above name is meant, above all, a natural right.
Analyzing the collection of folklore by law prof. R.A. Tuzmu- hamedov notes that in Russia related to the topic is negative, while in the West the problem is all the more interested researchers. It involved such authorities of public international law, as Ian Brownlie (England), Richard Falk (United States), Bedzhaun Mohammed (Algeria), James Crawford (Australia) and others. They explore the concept of folk law and its relation to the concept of the people's right, the history of the study of the law, its development, codes, case law, conflicts, and international folk law.
Folk-right is defined as a traditional set of obligations and prohibitions, orally transmitted socially defined group of people, sanctioned or demanded it and demanding individuals or their associations (families, clans) under threat of punishment. According to the authors of this book, the term «folk law» is more accurate than «confusing» concept - «common law», «unwritten law», «common law», «the law of indigenous peoples», «living law», «primitive law», etc.
No matter how many democratized Western jurists, from Eurocentric arrogance immediately rid hard and then it slips around: regular or unwritten law of confusing. Meanwhile, entitled his book «Folk Law», foreign scholars complete explanatory title «Sketches... unwritten law». Confusing incomprehensible and unknown, but after all that ignorance is no argument, the author said the same western B. Spinoza.
Our experts will examine and evaluate the definition of folk law and the accompanying research, find a rational that may come to Kazakhstan for the creative use of the terms in the rebirth and renewal of the legal system. We present some worthwhile ideas in a presentation of Russian prof. R.A. Tuzmuhamedov.
Naturally, one of the main problems faced by Western authors - how to identify the subject of folk law - «people» («folk»). If in the XIX century by Folk (people) in Europe was understood the rural, illiterate population, in the twentieth century, the concept is fundamentally changed. Modern folklorists define «folk» as any group of people united by a «common unifying factor». Although folk law - unwritten, verbal, it is certainly present in our day. In society, «as a rule, there will be two categories of law: written law and folk law».
Already reading about this thesis, we can identify their own characteristics. For us, «Folk» - it is not «any group of people», and all the people of Kazakhstan, a nation united by not vague «common unifying factor», and completely based on ethnic, historical, cultural, community and unity.
On the practical side, it is interesting question of the legal conflicts related to the use of folk law in the simultaneous action in the area (on this case) to the Scriptures, «civilized» law. We prefer the way that, in the opinion R.A. Tuzmuhamedov, without interest for the court and the legal practice in Russia, which is also home to indigenous peoples. It is proposed, based on an experience, on the one hand, to teach folk law those who are involved in resolving cases in such cases, and those who use the last point regarding the «civilized» law, why it is applicable to the present case.