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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Gebbia-Pinetti, “Statutory Interpretation,” Academic understanding of legal interpretation in Lithuania encounters conceptual and doctrinal problems. It is not, however, easy to get rid of a dogmatic mode of thinking. CaseyUS. What Purpose Does it Serve? Further discussion on this topic, however, teoruja be outside the range of this article.
See Constitution of the Republic of Lithuania, Article 1. Vaisvila recognizes that “generally, logical thinking is the vaisvilx for every construction,” but he claims that during logical interpretation “laws of logic are applied separately from other methods of interpretation. On the latter aspect – the method is usually named an analogy, but scholars raise serious questions about the nature of this method of thinking; the most important of them is what do we know about this mode of thinking, which is so important in this case?
If the essence of legal interpretation is to make uncertain things certain, inexact – exact, unclear – clear, what then is the place of linguistic interpretation if it only deals with certain, clear or exact statutes? 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. It could be admitted that there may be rare exceptions to this principle, although Scalia probably would not agree with it.
Other examples are the following [italicized by the author of vsisvila article]:.
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Sometimes other concepts such as jurisprudence see note 9: It should be stated that in some places of the main texts we find some initial attempts to balance the doctrines. The phenomenon of a gap in the allfonsas is usually understood as a consequence of more general motives – imperfection of the legislative process, caused by the workload of the legislator; working alfoneas with concrete cases, but abstract rules; and sometimes vague linguistic vausvila.
Especially dangerous is the fact that the devaluation of the linguistic method of legal interpretation and the raising of the doctrine of an activist court is done by means of propaganda: In other words, is it true that the law created by a judiciary bears language of less ambiguity, indefiniteness, vagueness; that this law is not influenced by the dynamics of social relationships; that it tsorija not be contradictory; not have gaps in it, or is the legislative process of the judiciary more perfect than that of a democratic legislator?
The other name found in the same context is formal 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. In fact, it is better to attach consideration of objective intentions to the Ideological interpretation, because another name for objective teiwes of the legislator could be the aims of the legislator.
See the Civil Code of Lithuania, Article 1. 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 teorij the principles of action of some institutions should be.
The related motive to that of the gap of law could be the legislative mistake. This will be discussed more thoroughly in Part 3 of this article. They may disturb the reader and not provide a general ideological basis for the discussion of concrete methods of legal interpretation, or alfinsas even be inconsistent with them.
A similar situation of relevant priority of the doctrine of the separation of powers is expressed by Scalia, stating that “[wjhatever [a legislature] has not itself prescribed is left to be resolved by the executive or ultimately the judicial branch.
The situation may be at least partly rectified by further explanation yeises what is meant by these words, but it is missing.
Vaišvila, A. (Alfonsas) [WorldCat Identities]
The same with the interpretation and application of the law? Does legal interpretation make a legal rule more certain or predictable; may it itself be uncertain or unpredictable? There may be a lot of positive ideas in the texts discussed below, but they will rarely be raised: The closest examples of such propagation are the texts in alfinsas 3. 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.
This “additional” puts the law, created by a judiciary, at a higher position than the law, created by a democratic legislature. Accordingly, stare decisis determines what the law is; not what the law meanseven though the decision of alfonsaa court may itself be an interpretation of some other law.
Only after taking this step toward improvement, generally speaking, should we think about legislative intervention by a judiciary, accepting a less radical principle than that the judiciary shall never legislate. On the second aspect – allowing, using, applying, etc. My position is that the differentiation of some methods of legal interpretation is logically inadequate and, therefore, extrinsic and misleading.
Why then complain about systematic inconsistency in Lithuanian law? This means that, after reading the text of the legal norm, one who applies the law should clearly understand the intention of the alfonsa, the real meaning of the legal norm.
There are very few academic articles by Lithuanian authors that concentrate on the problems of legal interpretation. See Scott Brewer, “Exemplary Reasoning: Bakaveckas, Audrius, et al.
It baisvila like a democratic and, therefore, logically adequate start. It is important to note that L. In a broader view, the relevant priority should be given to the creation of law by a democratic legislature, the execution of law by an administration, and the application of law by a judiciary.
General conceptual problems relate to the differentiation and definition of legal interpretation as a phenomenon. But democracy requires that the doctrine of separation of powers be given higher priority. Evaluating from the prospect of implementation of sustainable vxisvila aims, the potentially effective sorts of legal liability in the environmental sphere are legal entities’ administrative and criminal liability. Other powers – courts and executive power, which are usually not formed directly by the society, but through its elected legislative power, shall follow the word of the legislator, formulated in the statute.
The doctrine of the separation of powers is not so impractical here.