The Problem of Obligation of Judicial Precedent in the Lithuanian Legal System
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Abstract
The end of the 20th century revealed the trends of assimilation of Romanic–Germanic and Anglo–Saxon legal traditions that influence different attitudes of law theoreticians regarding judicial precedent as a mandatory source of law. The problem of judicial precedent which has already been brought up in 1918–1940 remained an important issue in the discussions of contemporary Lithuanian law scientists.
This article, based on legal acts and works of prominent Lithuanian law scientists, seeks to develop the conception of a judicial precedent as a source of law, discusses the role of the highest instance court as the institution authorized to officially clarify the state law, analyses the mandatory character of a judicial precedent in the context of several general law principles.
Careful analysis of the fundamental Lithuanian legal acts and attitudes of law theoreticians allows to state an informally mandatory character of a judicial precedent, the formalization of which would comply with the court practice. Under the Resolution of the Constitutional Court of March 28, 2006 the Lithuanian legal system has taken a direction towards implementation of obligation of a judicial precedent.
A scientific doctrine indicates the place of a judicial precedent in the hierarchy of the sources of law therefore the obligation as the criterion of a source of law is indispensable from a judicial precedent.
Though the Law on Court System of 1933 established the obvious obligation of the clarifications of the High Tribunal to the lower instance courts, the Law on Courts of the Republic of Lithuania which is currently in force provided only the recommendatory character of clarifications presented by the Supreme Court of Lithuania. The established court practice revealed the role of a cassation court as an informal law clarification institution.
After analyzing the problem of the obligation of a judicial precedent in the context of several general legal principles the necessity to establish a mandatory character of a judicial precedent in legal acts emerges.
In case the current situation is not improved the confrontation of the situation of a judicial precedent and the contents of general law principles arises.
This article, based on legal acts and works of prominent Lithuanian law scientists, seeks to develop the conception of a judicial precedent as a source of law, discusses the role of the highest instance court as the institution authorized to officially clarify the state law, analyses the mandatory character of a judicial precedent in the context of several general law principles.
Careful analysis of the fundamental Lithuanian legal acts and attitudes of law theoreticians allows to state an informally mandatory character of a judicial precedent, the formalization of which would comply with the court practice. Under the Resolution of the Constitutional Court of March 28, 2006 the Lithuanian legal system has taken a direction towards implementation of obligation of a judicial precedent.
A scientific doctrine indicates the place of a judicial precedent in the hierarchy of the sources of law therefore the obligation as the criterion of a source of law is indispensable from a judicial precedent.
Though the Law on Court System of 1933 established the obvious obligation of the clarifications of the High Tribunal to the lower instance courts, the Law on Courts of the Republic of Lithuania which is currently in force provided only the recommendatory character of clarifications presented by the Supreme Court of Lithuania. The established court practice revealed the role of a cassation court as an informal law clarification institution.
After analyzing the problem of the obligation of a judicial precedent in the context of several general legal principles the necessity to establish a mandatory character of a judicial precedent in legal acts emerges.
In case the current situation is not improved the confrontation of the situation of a judicial precedent and the contents of general law principles arises.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
