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Evolution of Perception of Concept of Judge-made Law in Foreign Countries

  • Latvia
  • Other

30-01-2009

Author: Ginta Sniedzite

Likums un Tiesibas, 11. sejums, nr.1 (113) un nr.2 (114), Janvaris un Februaris 2009

Abstract

The article begins the analysis of understanding the concept of judge-made law in Germany, particularly considering its legal regulation in this respect as well as the doctrinal ideas concerning the boundaries or limits of the judge-made law, judge-made law as the legal custom, unification of the concept of judge-made law and judicature and critics of the concept of judge-made law from the point of view of the principle of democracy.

Further, while analyzing the evolution of the judge-made law in France, for its part, apart from the study of the legal regulation in force with respect to the concept, list of doctrinal ideas and theories are thoroughly explained especially those concerning justification the legitimacy of the judge-made law and the power of the judge to act in the sphere of creation of the law. The author has included in the article also a brief insight of the main theoretical ideas of the legal thought of Estonia, Russian Federation and Sweden with respect to the judge-made law.


Finally, the author turns to the study of the rules of operation and rules created by the European Court of Justice and the European Court of Human Rights concerning the legal status and force of the provisions created and supported by the judgments of these international courts, i.e., the judge-made law of the European Court of Justice and the European Court of Human Rights.


The conclusions reached in this article the author will further implement to come to the comparative conclusions regarding the perception of the concept of judge-made law in western European legal systems, the constitutional basis of the concept, its legitimation, location within the system of sources of the law and a range of other theoretically problematic issues connected with the concept of judge-made law.

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