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Предсказуемость права и предсказание судебных решений в учении О. Холмса
Introduction. Legal theorists remain engaged in a discussion on the phenomenon of judicial law-making and its manifestations in modern legal systems. This article through the writings of the famous judge O. W. Holmes, Jr., traces the prerequisites for the conclusion that law is what the court will decide, and the reveals actual content of the predictive theory of law. Theoretical Basis.
Methods. The purpose of this article is to research the ontological elements of the common law and the principles of its functioning to ascertain their relationship with the allegation of predictability of judicial decisions. To achieve it, the following tasks are solved: the approach to the source of law has been discovered through a realistic view of the ontology of common law; the role of the jury as a “slice of society” which helps to identify the patterns of legal relations has been described; the realistic presumption of foreseeing the law in comparison with the positivist presumption of knowledge of the law has been analyzed; the correlation of the induction of case law with the methodology of predicting court decisions has been substantiated. The author used system analysis, hermeneutics, ideographic method and comparative approach as a philosophical basis of the research.
Results. As a result of the study, the following conclusions have been reached: 1) decentralized nature of the case law system and the connection of its legal grounds with the patterns distilled from the real life of the community (practice of relations and the general experience) caused the inapplicability of the statutory legislation as a main and direct guide to judicial actions; 2) the correlation of these patterns with specific life situations (objective facts) and their detection via jury trial - the institute of “the highest equality” and the equivalent of an average prudent person - provides the law with a characteristic of objectivity and creates a primary condition for foreseeing legal demands; 3) the phenomenon of judicial law-making is directly related to a peculiar understanding of the source of law and the mechanism of its distilling; 4) the gradual approximation of detected primary patterns and their thorough generalization by judges (induction) allows us to establish an even more general, derivative pattern (“common sense”) and formulate rather clear rule of conduct for further habitual application and more convenient prediction of the decision the court will make with due regard to the accumulated experience. Discussoin and Conclusion. The revealed systemic connection of its central conclusions with general observations about the ontology of common law shows that there is a special approach to the source of law, to the process of its formation and its characteristics. This approach is no less important to understand the predictive theory than the prediction process itself.