The Concept of “Judicial Doctrine” in Russian Jurisprudence (General Notes)

The paper aims to address the totality of individual terms based on the generic concept of “doctrine”: “legal doctrine”, “scientific doctrine”, “judicial doctrine” the way they are interpreted in modern Russian legal science. Substantially and conceptually, the work anticipates an approach to another subject that is an integral part of the Russian judicial doctrine and the process of its formation, namely the application of the principles and norms of international law in the administration of justice. The paper focuses on some ambiguous interpretations of the understanding of the phenomena that are combined with each other due to the interweaving of the above concepts found in modern domestic and foreign literature, sometimes mixing their external and internal sides, proposed corresponding original solutions or paradoxical qualifications. Two extremes are emphasized in the course of revealing the essence of the analyzed concepts: either an almost arbitrary — mechanical — connection of all the elements present in one case or another into a kind of artificial “complex”, or a declination in favor of only one component as a central (or supporting) component while ignoring the others. Analyzing the legal doctrine as a concept the author differentiates between a category of science and judicial doctrine, and assumes that it is worth avoiding hyperbolization of differentiation between them. On the other hand, it would be fruitless to draw direct lines of their influence on each other. At the same time, when using the term “judicial doctrine”, it is impossible to abstract from the concept of “doctrine” in the general scientific sense. Their mutual intersection with each other, “penetration” into each other are objective. Formulating the conclusions on the problems of the concepts of legal, scientific and judicial doctrine, the author advocates greater caution in making proposals and, at the same time, greater criticism in assessing the already existing conclusions of legal theorists and practitioners.

Postmodernity in Russian Private Law: Interaction of Legal and Judicial Doctrine

The presented paper aims at revealing the essence of legal and judicial doctrine in Russian private law. The paper criticizes the position that the legal doctrine is an authoritative opinion of scientists expressed in the form of principles, theories, and concepts. This approach to legal doctrine is amorphous. Legal doctrine is a unified concept based on specific methodological foundations and developing conclusions that are in systemic unity. The legal doctrine toolkit is the alpha and omega of law. An interdisciplinary approach to the study of legal phenomena should be based on the categorical apparatus of legal doctrine, on the general doctrine of the essence and purpose of law. The result of an interdisciplinary study should be a rethinking and filling with new content of the tools already developed by the legal doctrine. The work scrutinizes the functions of legal doctrine: description of existing law (de lege lata); development of proposals for its improvement (de lege ferenda); justification and legitimization of novels. The paper concludes that the modern civil doctrine can be revealed through the postmodern concept of the rhizome, since the doctrine is becoming more international, interdisciplinary and creative. The author investigates the triad of functions of judicial doctrine, namely interpretation, addition and correction of law. It is proved that social and technological challenges predetermine the emergence of judicial doctrines aimed at rethinking and interpreting positive law, its addition and correction. The author concludes that the evolution of private law is based on the dialectical unity of legal and judicial doctrine, each of which implements its functional triad.

Judging the Judges

This work attempts to analyze what precisely is meant by judicial immunity and why is it necessary to protect judges for judging? Secondly, how did the jurisprudence of judicial immunity evolve in Pakistan? Presenting a thorough analysis of the decisions in recent cases, this article argues that although the juridical position on the question of judicial immunity has gone back and forth, the Supreme Court has finally laid down a judicial doctrine that extends judicial immunity to administrative, executive, consultative, and legislative decisions of judges of the High Court. It has also made clear that High Court is not allowed to issue a writ against administrative, executive or consultative acts of its own or another High Court for the purpose of ensuring harmony in the working of judiciary.

Part VI Terms and Interpretation, 22 Exclusion Clauses and Consumer Protection

An exclusion clause might operate in any of the following three ways: (a) as a limitation clause, imposing a financial cap on the compensation to be paid upon breach; or (b) it might provide for total exclusion of liability for breach; or (c) the clause might constitute a time restriction (an agreed time bar), which requires a claim to be made within a specified period of the alleged harm, that period being shorter than the ordinary limitation period prescribed by statute (ordinarily, six years for breach of contract, twelve years if the action is based on a deed). By a combination of judicial doctrine and (predominantly) statutory regulation, exclusion clauses have become more closely controlled since the Second World War. This chapter explains these responses to this problem.

JUDICIAL DOCTRINE AS A SOURCE OF CRIMINAL PROCEDURE LAW OF UKRAINE: GENERAL GNOSEOLOGICAL (EPISTEMIOLOGICAL) RESEARCH (PART ONE)

In this scientific article the research of judicial doctrine as a source of criminal procedure law of Ukraine is carried out. This article analyzes the ideas and theories of different jurists of the past and present in the field of judicial doctrine. At the same time, in the analysis of general issues related to judicial doctrine as a source of law, scientific research is carried out on the aspect of judicial doctrine as a source of criminal procedure law of Ukraine in particular. Also, the article states the opinion that it is possible to carry out scientific research in the field of distinguishing between the judicial doctrine of criminal procedure, on the one hand, and the judicial doctrine of criminal procedure law, on the other hand; exploring the common features and distinctive features of each of the above types of judicial doctrine in criminal proceedings. In addition, the article notes the idea that knowledge of judicial doctrine of criminal procedure (in particular), which will be distinguished from judicial doctrine (in general), is a promising area of further research. The article identifies the ways of scientific and educational comprehension of judicial doctrine as a source of criminal procedure law of Ukraine. In particular, the article addresses the possibility of considering and resolving the issue of introducing the teaching of a special training course titled «Criminal Procedure Doctrine» for students (cadets) of law universities (faculties) which carry out training for judicial and law enforcement (administering) public authorities (government agencies) of Ukraine. The gnoseological feature of this part of the scientific work is that it considers and analyzes the theories (concepts) of the scientific approach to the recognition of judicial doctrine as a source of law (including criminal procedure law). Please note that this article is the first part of a more significant amount of scientific work under the above title. The work on epistemological study of the field of judicial doctrine as a source of criminal procedure law of Ukraine continues.

Constraining Bureaucracy Beyond Judicial Review

The modern regulatory state–and the field of administrative law that studies it–is in need of “deconstruction.” That does not mean that it should be dismantled entirely. This essay does not embrace the reformers' fixation on courts as the bulwark against agency overreach. Rather, this essay develops the concept of bureaucracy beyond judicial review: not only agency actions that statute or judicial doctrine precludes from judicial review, but also agency actions that are technically subject to judicial review yet effectively insulated from it. Appreciating the phenomenon of bureaucracy beyond judicial review should encourage us to rethink theories and doctrines in administrative law. If judicial review provides no safeguard against potential abuses of power in most regulatory activities, we must turn to other mechanisms. All three branches of the federal government must play their roles, as should civil society and the agencies themselves.

Judicial doctrine in the legal system of the world

Special characteristics of the perception of judicial doctrine in the countries of common and continental law, in the European community in terms of the harmonisation and strengthening the influence of the European Court of Human Rights on the juridical regulation, are defined. Special attention is paid to the identification of the essence and content oh judicial doctrine of the ECHR and its importance in the regulation of social relations. Generally accepted approach in the countries of continental law is the one under which the judicial practice and doctrine, as a result of compilation of jurisprudence, is not the source of law in formal-legal perception, but it is an important factor of the law-making. In the countries of common law, the legal doctrine has been developing by scaling up the experience of court’s decisions and the perception of the decisions of the judicial authorities as a source of law. The case law of the European Court of Human Rights as a part of European legal system plays the harmonisation role. The judicial doctrine of European Court of Human Rights is one of the sources of law for the counties of the European Area and countries, that adhered to the European Convention for the Protection of Human Rights and Fundamental Freedoms, strengthened its grip since the end of the twentieth century and in the twenty-first century, especially, it increased the influence on the regulation of the international relations and the domestic relations as well. Such doctrine became a part of their national legislature. The above mentioned is confirmed by legal force and by place in national legal systems of judicial doctrine of European Court of Human Rights, containing general principles or framework for the protection of human rights and freedoms. That’s why its perception is performed as a general rule , source of law, but not the judgment in a particular case, which is not relevant to the hearing of other cases. For this, important is constitutional endorsement of ECHR’s decisions in the hierarchy of legal acts, or sources of law in formal-legal perception. For this moment, there had been a convergence of conceptual approaches to understanding the legal doctrine in general and judicial doctrine in particular. There is a fundamental importance of the judicial doctrine, which is a precondition and a source for the law-making, law enforcement, and also it could act as a direct source of law in formal-legal perception.

Chevron, State Farm, and the Impact of Judicial Doctrine on Bureaucratic Policymaking

We explain how two landmark Supreme Court cases, Motor Vehicles Manufacturers Association of the U.S. v. State Farm Mutual Automobile Insurance Co. (1983) and Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc. (1984), have constrained congressional and presidential control of the bureaucracy. We provide an overview of these cases, and we note how the dominant theories of bureaucratic policy making in the political science literature fail to account for judicial doctrine in a meaningful way. We illustrate the implications of these cases for recent debates regarding regulatory rollbacks in the Trump administration, and we argue that bureaucratic control over the past forty years has tilted in favor of the judicial branch of American national government.