The Possibility of Regulatory Function of Judicial Power

Abstract

The article presents two theses. The first is that previous court judgments can be „sources“ of general rules and standards that will constraint the courts, as decision-makers, even if they are not formally established as legally binding. The second is that it should be so for several reasons – the most important being predictability and equality. In this part of the article the concepts of separation of powers, types of state functions, and judicial power are explained. The reasons why the judicial power can perform the law-making function in a legal system in which it is not formally established are presented. As an illustration of how the system in which courts perform a law-making function works, the application of the doctrine of stare decisis in the USA is described. Finally, several decisions of the Constitutional Court of Serbia that indicate similar practice in Serbian legal system are analyzed.