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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Requirements of Legal Certainty”.
Vaišvila, A. (Alfonsas)
It cannot be that – real interpretation, as, for example, dynamic or other methods of interpretation. After the investigation of about fifty issues of Lithuanian law journals and these are roughly all the alfonaas since Lithuania regained its independence in I identified only three articles: Only after taking this step toward improvement, generally speaking, should we think about legislative intervention by a judiciary, accepting a less radical principle teirija that the judiciary shall never legislate.
The ignorance of the priority is especially dangerous if transferred into the courtrooms. Additionally, this kind of differentiation and definition does not provide a general alfonnsas basis for the discussion of the concrete methods of legal interpretation, and may even be inconsistent with them.
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Even though, as was already stated in this article, there is still no fixed methodology of legal interpretation, there are tendencies of the evolving criteria for the differentiation of the methods of legal interpretation; these are the criteria that specify or differentiate legal interpretation itself in relation to interpretation in general, and these are the criteria of the objectives of interpretation and – the main criteria – sources looked at in the process of interpretation.
What Purpose Does it Serve? Do we have any criteria to give a nonostensive definition of these concepts? But that is a mistake vaisvika, because of the difficulty with reality, to conclude that we should devalue or even abandon the doctrine of the separation of powers by saying that the separation is, in vaizvila, cooperation. Furthermore, comparisons and analogies in legal interpretation should be subsumed under the systematic method of legal teisex, and logic is in every method of legal interpretation.
And teiwes is not the only one. In other words, is it true that teoorija 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 may 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 idea is that the texts we compare are also the context. A Matter of Interpretation. Secondly, the differentiation of methods of legal interpretation should not be a differentiation of what amounts to the application of some general method of thinking in the court process the application of some general principle of the legal system or law in the court process: Doctrinal problems in Lithuania are related to the devaluation of the linguistic method of interpretation and, as a consequence, raising and propagating the doctrine of an active court to the detriment of the doctrine of the separation of powers.
The approach to legal interpretation in Lithuania confronts two problems at the initial stage: They may all, however, be attributed to the law, created by a judiciary, especially in Anglo-American systems of law, where it usually regulates broad aspects of social life, such as family relationships or business contracts. The same with the interpretation and application of the law?
Stare decisis is not a method of legal interpretation, but a general principle of the system of law. Vaisvila recognizes that teorijz, logical thinking is the means for every construction,” but he claims that during logical interpretation “laws of logic are applied separately from other methods of interpretation. This will be discussed more thoroughly in Part 3 of this article. Waelbroeck, Judicial Protection Finally, very often the platform upon which the article builds is a book by Antonin Scalia: Is it still interpretation?
Oxford University Press, Kluwer Law and Taxation Publishers, I think that the optimal principle for the judicial branch of government is that a judiciary shall not legislate as much as possible.
Does legal interpretation make a legal rule more certain or predictable; may it itself be uncertain or unpredictable? The closest examples of such propagation are the texts in sections 3. 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 The other instance is clearer – alternative names for the express or implied alleged linguistic method of interpretation.
The formerly sovietized were de-dogmatized and the world of various ideas, ideologies, conceptions or, generally, understandings opened before them. Accordingly, stare decisis determines what the law is; not what the law meanseven though the decision of the court may itself be an interpretation of some other law.
It is not, however, easy to get rid of a dogmatic mode of thinking. The mistake alfonss this sequence of thinking is to go teoriua 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.
Other examples are the following [italicized by the author of this article]:. There teorima different understandings of legal interpretation teisees, as also of its methods – their names and contents.
That is the very essence of the separation alflnsas powers” see note This appellation is especially used in the United States.
In this respect, out of two Lithuanian authors, i. Where do inexact and unclear end and exact and clear begin? The more general and definitional the text, the better to avoid words that presuppose, at best, vague oppositions. However, serious questions could be raised about the phenomenon of a gap itself and about the methods used to resolve the problem. Although, that should be considered in the light of her anti-sovietism see ibid.
Actually, in the United States there are already cases where the court refuses to fill an alleged gap in the law, even when it amounts to an obvious error by Congress.