Legal understanding as a methodological basis for determining the place of judicial practice in the system of sources of law: current issues

The article carries out a theoretical and legal analysis of judicial practice as a source of law through the prism of the main concepts of legal understanding. The content and correlation of the basic legal categories «source of law» and «legal understanding» are studied, their functional role in the process of administering justice is clarified. It is stated that in legal science there is a significant variety of approaches to the interpretation of these concepts, due to both the historical features of the development of legal systems and the philosophical and worldview positions of individual scientific schools. The peculiarities of the interpretation of the sources of law within the framework of the normative concept, presented by the works of G. Kelsen and G.L.A. Hart, and the natural law tradition, originating from the philosophical teachings of F. Aquinas, T. Hobbes and G. Grotius, are analyzed. It is established that the normative doctrine denies the law-making function of courts, recognizing only the acts of authorized state bodies as sources of law, while the natural law concept assigns judicial institutions a key role in the process of forming legal norms. Attention is focused on the fact that the choice of a particular concept of legal understanding has not only theoretical, but also significant practical significance for the law-enforcement activity of courts. It is substantiated that in the conditions of dynamic socio-economic transformations and European integration of Ukraine, the role of judicial practice is steadily growing, especially in the field of private law regulation. Judicial practice provides the necessary clarity and predictability in determining the content of legal relations, serves as an operational tool for filling legislative gaps and specifying evaluative concepts. Special attention is paid to the influence of the practice of the European Court of Human Rights on the national legal system, which actually means recognizing the precedential nature of its decisions. It is concluded that in the conditions of convergence of Anglo-Saxon and Romano-Germanic legal traditions, ignoring case law and its non-recognition as a source of law is becoming increasingly problematic both from a doctrinal and practical point of view. Proposals are formulated regarding the prospects for integrating case law into the system of sources of domestic law, taking into account the positive experience of foreign states.