DO THE JUDGES CREAT A LAW OR ONLY APPLY IT?

Abstract

This paper analyzes the issue of creating a law by the Court, as one of a few questions in jurisprudence which have caused so much interest, misunderstanding and controversial opinions. In a legal theory there are opposing opinions about the possibility of creating a law through the court decisions, which, beside many differences, also have some common connecting points. By setting a goal of our research, we took a modest way and stayed in the area, which did not exceed the domain of science. We also adapted the structure of the paper to the goal being set, in which we analyzed the court decision as a source of law, compared the court decision with the formal source of law, respectively with the law itself, and dealt with the harmonization of the court practice in the judicial system of Republic of Serbia.