Alfonsas Vaišvila, celebrating his 70th jubilee birthday, was honoured for and most notably landmark work, “Teisės teorija,” (Theory of Law). Alfonsas Vaišvila, Mykolo Romerio universitetas;. Doc. dr. Vigintas Višinskis . Lietuvos ekologinės teisės paskirtį atspindinčių teisinių kategorijų tapatumo paieška teorijoje bei Vaišvila A. Teisės teorija – Vilnius, Kiti šaltiniai. 22 . Teisės teorija: vadovėlis by A Vaišvila(Book) 4 editions published between and in Lithuanian and held by 5 WorldCat member libraries worldwide.
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Biased theoretical proliferation in relation to the phenomenon of legal interpretation in Lithuanian academic circles was the cause of the undervaluation of the linguistic method of legal interpretation, otherwise called mechanical or formal, and, an over valuation of the doctrine of an active court. My position is that the differentiation of vzisvila methods of legal interpretation is logically inadequate and, therefore, extrinsic and misleading. For example, Karen M Gebbia-Pinetti in her article states that: Writers sometimes refer to “canons of interpretation,” but teoriua is better to think in terms of varying approaches: Although, systematic interpretation and analogy are distinguished in the title of the subsection, there are no signs of differentiation in the analysis presented.
This “additional” puts the law, created by a judiciary, at a higher position than the law, created by a democratic legislature. Devaluation is more dangerous if it is done by means of propaganda and illogical teoriija.
They come, as we already have seen, from a common conceptual field, but their position in these cases is contradictory. The closest examples of such propagation are the texts in sections 3. After the investigation of about fifty alfonsaz of Lithuanian law journals and these are roughly all the issues since Lithuania regained its independence in I identified only three articles: However, there is also a problem more inherent to the definition of legal interpretation.
Tailored Enforcement in Environmental Criminal Law. It looks like an attack on the doctrine of the separation of powers which is formal in its very essence raising the judiciary to legislative power, but I will stop this line of argumentation for now, because it is further discussed in Part 3 of this article.
Another example of bewilderment: See generally, Antonin Scalia et al. It is not, however, easy to get rid of a dogmatic mode of thinking. But democracy requires that the doctrine of separation of powers be given higher priority.
Rather, it aims at revealing and analyzing problems and possible flaws in the academic understanding of legal interpretation in Lithuania.
The outcome alfonsass that a democratic legislature creates the law, the administration executes that law, and the judiciary applies that law to concrete cases.
But these are rare exceptions. Does legal interpretation make a legal rule more certain or predictable; may it itself be uncertain or unpredictable? The problem of differentiation is, also naturally, the problem of the definition of legal interpretation.
I think that the optimal principle for the judicial branch of government is that a judiciary shall not legislate as much as possible. Academic understanding of legal interpretation in Teoriua encounters conceptual and doctrinal problems. This is not the mechanical literalism, discussed above, as the literal method for Liekyte includes linguistic, grammatical and even systematic considerations see note 7: Waelbroeck, Judicial Protection Why should some cases be exempted from this tradition of practice and left for the judges to fill in in their absence?
What is important is what we look at when we compare or find analogies; that is, very generally, other law – constitutions, statutes, decrees, court decisions or even journal articles. Some motives require separate discussion, however.
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This means principally that these motives make no difference between a law created by a democratic legislature and a law created by the judiciary and, therefore, they are, to say the least, weak.
Eliadis, Pearl, and Donald Lemaire.
The initial suggestions may be the following: The stereotype is that during the transformation one understanding was changed or, speaking more exactly, another understanding became the preferred understanding.
It is a message tesies is lacking in the academic texts on legal interpretation in Lithuania, where the doctrine of an activist court is raised and propagated.
An analysis of the academic understanding of legal interpretation in Lithuania should begin with the transformations that took place over the last fifteen years in the Soviet and post-Soviet region. Simple theoretical proliferation of the understanding of legal interpretation has its problem at a more general level; that is the problem of the over-differentiation of the methods of legal interpretation.
In the Brown and Kennedy book, right after the subsection, called Contextual interpretationwe find a subsection, called Comparative Law as Aid to Interpretationwhich begins with the sentence that ” [p]art of the context in which Community law operates is its interrelationship with the national laws of the member States” see note It could be right that courts should, generally, interpret law, but the acceptance of the plurality of legal interpretation should not be a hasty process; especially in a constitutionally democratic state.
Furthermore, comparisons and analogies in legal interpretation should be subsumed under the systematic method of legal interpretation, and logic is in every method of legal interpretation. It is hard to understand how such antonymous concepts as separation and cooperation may mean in some way or other, each other; it is much more likely this is not simply a change of wording, but an essential change of meaning.
However, further on in the text it appears that the importance of the method was mainly its frequent occurrence; the primacy of this method, especially the democratic input under it, is forgotten or at least substantially devalued while other values are raised. Another point is that social reality is also dynamic in relation to precedent law, but a very strange situation arises here – if you are a complete activist, you must abandon the doctrine of the stare decisis or at least substantially modify it, so that, after modification, it should say that the stare decisis applies, unless the social reality has evolved.
If you do not abandon or modify it, 71 but still leave the dynamist now, only in relationship to the law created by a democratic legislaturethen the result is that the law, created by a judiciary, is placed in a higher position than the law created by a democratic legislature; the former is “much more the law” than the latter. General conceptual problems relate to the differentiation and definition of legal interpretation as a phenomenon.
A consideration of the conformity of legal norms to social reality should not be attributed to this method.
Teisės teorija by Alfonsas Vaišvila
The principle is that a judiciary shall never legislate. Why then complain about systematic inconsistency in Lithuanian law? These aspects are more thoroughly discussed in Parts 4 and 5 of this article. Fletcher, Basic Concepts In other words, what is important in historical interpretation is the history of the enacting of the law, but not the history of the life of the law in relation to the history of the life of the society.
Other examples are the following [italicized by the author of this article]:.
And that is a good start for the doctrine of an active court, This good start however, should not turn into a “rush towards” the unlimited activity of the court, by forgetting what else the doctrine of the separation of powers says: On the second aspect – allowing, using, applying, etc.
The transformations involved many spheres of social life, including the law.