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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The transformations involved many spheres of social life, including the law. Official Gazette,no.
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. It is a message that is lacking vaisgila the academic texts on legal interpretation in Lithuania, where the doctrine of an activist court is raised and propagated.
There are very few academic articles by Lithuanian authors that concentrate on the problems of legal interpretation. The phenomenon of a gap in the law is usually understood as teprija consequence of more general motives – imperfection of the legislative process, caused by the workload of the legislator; working not with concrete cases, but abstract rules; and sometimes vague linguistic input. The more general and definitional the text, the better to avoid words that presuppose, at best, vague oppositions.
Teises teorija : ketvirtasis leidimas
An analysis of the legislative mistake can be found in Scalia’s book, where a mistake of expression and a mistake of legislative wisdom are distinguished see note This is not the mechanical literalism, discussed above, as the literal method for Liekyte includes linguistic, grammatical and even systematic considerations see note 7: For example, George P.
The methods of this article are analysis and comparison. Administrative Law of Lithuania. The mistake in this sequence of thinking is to go from gaps and legislative mistakes directly to legislative intervention by the judiciary, as though it is the first or even the only possible course of action. Therefore, even though the integration of the historical and dynamic methods of legal interpretation is not an absolute mistake, it is clearly a mistake in relation to the Continental understanding of legal interpretation and law, to which Lithuania should belong.
Vaišvila, A. (Alfonsas)
On the other hand, what is the difference between the determination of the true meaning of the legal norm and saying why that true or “true” meaning is rational, sensible, well-founded? This shows that the use of comparison is not understood as a separate method of legal interpretation, but as a part of a contextual systematic interpretation.
On the other hand, “while applying the historical method we try to determine not the intentions of the legislator, but rather the objective historical circumstances of the creation and adoption of the statutes and the later changes” 92 [italicized teorjia the author of this article].
Waelbroeck, Judicial Protection Bakaveckas, Audrius, et al. To ask the former question is a good propagandistic move against the doctrine of the separation of powers, because it raises the doctrine of the activist court to the level of the doctrine of the separation of powers or even higher.
Alfonsas Vaišvila – Teisės teorija – –
Antonin Scalia here is exactly the opposite: This could only mean one thing – in the presentation of linguistic interpretation we already have a hidden critique or even negation of the method as one of interpretation. These questions, if unanswered, shed serious doubts on the doctrine of the activist court as a whole. A Matter of Interpretation. In other words, we leave everything for the sovereign decision of the judges: Another text that errs in the same way is the Vasiliauskas article, where he states that: However, while emphasizing the need of interpretative activism of the court, almost all the authors discussed here, sometimes unconsciously, 53 cross the line between the power to interpret law and the power to create lawwhich, in their view, may be exercised by the courts.
Oxford University Press, But these are rare exceptions. Legal entities violating the norms of environmental law set economic aim above social and environmental aims, hence legal entities also encroach on sustainable development and do not allow for a striving towards the combinability of environmental, economic and social societal aims. What if the purpose of the law, or at least a special law, such as a constitution, may be “to prevent change – to embed certain rights in such a manner that future generations cannot readily take them away”?
The problem of differentiation is, also naturally, the problem of the definition of legal interpretation. Neville Brown with Tom Kennedy and some other authors see e. The principle is that a judiciary shall never legislate. On the second aspect – allowing, using, applying, etc.
Therefore, in these cases, the propagation of the doctrine of an active court is done to the detriment of the root doctrine of modern democracy – that of the separation of powers. Of course, “the world of legal interpretation” is generally still very disordered. Usually the proliferation was accompanied by a straightforward, even dogmatic, devaluation of the one understanding which had been prevalent in Soviet times.
In the more conventional Anglo-American view of stare decisis Other powers – courts and executive power, which are usually not formed directly by the society, but through its elected legislative power, teirija follow the word of the legislator, formulated in the statute. Scalia, Matter35 ; here, an attempt is made to temper its undemocratic nature by the requirement to use analogy or general principles of law in the case of a gap in the law, but it is a failure, because, as was already mentioned, we do not know much about analogy, and there may be no general teisee of law to apply or any agreement on what it is.
In this case, the most precise and correct thing should be to distinguish the dynamic method of vaaisvila. It should also be added that it does not matter very much that stare decisis is sometimes broken by the judiciary itself. The doctrine of the separation of powers is an ethical, but not a scientific ideology, and we should not ask if it is possible to turn that doctrine into reality, but what the principles of action of some institutions should be.
To generalize, the linguistic method of interpretation is in danger of being devalued in Lithuania. Such statutes by their contents are undemocratic, as “legislative power is the power to make laws, not the power to make legislatures” see note This appellation feises especially used in the United States.