In this article the author examines some theoretical problems connected with the attempts to integrate principles of the precedent law into the Russian law. In author’s opinion, the basic problem is that of different normativity of law in the common law and in the civil law. In the English precedent law legal regulation is mainly exercised through casual rules created ad hoc, in the civil law regulation implies creating general rules. Uncritical utilization of the term “precedent” for characterization of judicial lawmaking in Russia can lead to superfluous analogies between the Russian and the English legal systems. To describe judicial lawmaking theory of law can propose more convenient terminology and conceptual schemes.
The article contains specifics of customary law as legal source in common law countries. In these countries customary law is not only historical legal source, but also contemporary one. Constitutional conventions fulfill a special function in modern law. However, legal doctrine evaluates legal nature of constitutional conventions unequally.
If considering traditions in law and in jurisprudence, one may assert that the most actual question in the contemporary Russia is the problem of precedent law. This problem is arisen in connection with some statements of the leading representatives of the judicial system about necessity to transform the Russian court process according to the model of the common law. One can investigate this problem through consideration of the new procedural institutes and their comparaive analysis.