Judicial Precedent as a Source of Law in Lithuania: the Official Constitutional Doctrine, Stereotypes of Legal Thinking and Counter-arguments

Abstract

In its 2006–2007 jurisprudence the Constitutional Court of the Republic in Lithuania, has formulated the official constitutional doctrine of judicial precedent according to which courts are bound by precedents which they created in analogous cases. These precedents are sources of law which are binding both vertically and horizontally. The article presents the official constitutional doctrine as elaborated by the Constitutional Court, and the counter-arguments against three types of stereotypes which are well-established in the legal thinking which the doctrine opposes and, hopefully, will help to overcome. Namely, these stereotypes are: that positive law, especially in post-modern society, is, in essence, the result of a purportive and purposeful law-making process and that law-making bodies have to have democratic legitimacy in the majoritarian sense of the word (which the courts lack as they are not elected); “genuine“ positive law is such as it was perceived by a respective law-making body; precedent, as a source of law, is not characteristic to the Lithuanian legal tradition. In this article it is shown how the official constitutional doctrine of judicial precedent was further eleborated, as compared with its initial “version“ and how it could be elaborated in the future. Also, methodological counter-arguments against the said stereotypes are provided, including the one that precedent, as a source of law does not compete with the law (normative act) or substitutes it but co-exists with and supplements it as it is a form of existence of the latter in the perception of law-applying bodies, first of all the courts.