„Interpretative Play“ by Courts and their Doctrinal Assumptions

Abstract

A practising lawyer is not always aware of the fact that case decisions are more determined by legal doctrine – attitudes of authoritative lawyers and scientific legal discussion of other forms – than by changes in positive law. Regulations of specific case decisions are directly reliant on the ideas and statements of legal discussions – as one of the factors influencing the decisions of the courts. During the twenty years of independence, the form, content and argumentation of the Lithuanian court judgments has fundamentally changed, especially with regard to the understanding of the courts (the judiciary) in terms of how unrestrained they are when interpreting a legal text and making decisions.
The judicial discretion to interpret a legal text is treated diversely in various legal traditions and within the scope of the western legal tradition itself. In common law countries, the competence of a judge to deviate from a legal text or to create their own legal framework is treated with much greater understanding. In civil law tradition, the attempts of judges to take over the functions of the legislature are usually considered more critically. Even the representatives of comparative law emphasise that judges in civil law tradition countries tend to call the creation of legal rules differently – mostly as interpretation of the law. The discussion on the power of judges to create law through its interpretation has been taking place everywhere and at all times. Judicial discretion in decision-making is not due to individual factors such as era, social structure, cultural background, but is determined by some other factors that are not easy to identify. The interpretative activity of the courts is also influenced by the prevailing doctrinal regulations of judicial activity. It is the changes of the Lithuanian legal doctrines that could have encouraged the courts to determine the scope of their activity in the direction of its growth.
After the restoration of independence, the Lithuanian legal community began an active discussion on whether legal positivism was the correct form of legal understanding. Studies appeared, in which legal positivism was seen exclusively negatively, reminding that it was specifically this legal concept that had eliminated values from law and was likely to be blamed for the ills of humanity such as the Holocaust or genocide. Numerous publications emerged calling judges to be active and reminding them to check every rule of law in accordance with its consistency with the principles of law and to disapply any rule of law that did not meet this requirement. Almost universally, lawyers (and especially the courts) were encouraged to move from mechanical (a priori improper) application of the law to the creative (a priori the best and aspirational) one. The courts were encouraged: they started to freely interpret legal rules, under which the legislature established their competence; although court judgments have become more reasoned, this did not prevent them from applying speculative or ambivalent arguments; criticism could be expressed to courts due to lengthy processes that are, objectively looking, not required, and for low activity in exercising their powers to prevent abuse of law.
Respect for the legislature directly responsible for creating legal rules and taking care of legal protection, judicial recognition that a court should deviate from the legal text or otherwise create new rules only when it is objectively inevitable, and lawyers’ societal openness to discussion on various issues – these can become conceptual prerequisites for higher confidence in the courts.