Competing Concepts of Judicial Lawmaking (in the Doctrines of the United States and Germany)

The relevance of the study can be deduced from the statements that dominate in the Russian doctrine: “judicial precedent and judicial lawmaking are characteristics only of the common law countries”. At the same time, in so-called civil law countries, judicial law-making was recognized in the middle of the twentieth century. In this regard, it seems necessary to form a doctrinal position that interprets judicial lawmaking in a different way. There is a need to show not differences between systems, but to point out similarities in regulation and evaluate judicial lawmaking from the standpoint of practice. The dominant position in Russian doctrine denies the existence of judicial lawmaking or judicial precedent both in Germany and in Russia. It seems to be incorrect. In the graduation work represented confirmations that in any system there are creative lawmaking decisions of the courts. To achieve this goal, general scientific methods will be used, such as analysis, synthesis, induction and deduction. To draw an analogy between judicial law-making in Germany and USA will be used the historical method, as well as the method of document analysis. In this connection, the periods of the history of Germany after the First World War, the period of the formation of family legislation based on judicial precedents in 1953–1960, and later will be carefully studied.