The Importance of Precedent as the Source of Law in Lithuania in 1918–1940
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Abstract
In the states where the Romanic-Germanic (civil) legal tradition prevails (Lithuania is also attributed to the following states) the precedent as the source of law is formally denied, however the Lithuanian law faced the paradoxical tendency in 1918-1940 when the courts were insisted on complying exclusively with the law and they were also granted the right of legislation ad hoc. It is inexpedient to talk of the innovation of the Lithuanian precedent law as it is not only the result or feature of the legal reform of the last decade of the XXth century.
This Article, based on corresponding provisions of the Constitutions of Lithuania, the Provisional Law on the Courts of Lithuania and Organization of Their Work and the Law on Court System as well as works of the most prominent scientists of law of these times, tries to reveal the importance of case law as the source of law in 1918-1940. In the research of the mentioned subject we use historical, logical and linguistic methods.
The chronological research period of this work – 1918-1940 - was chosen to emphasize the vitality of laws of the Independent State of Lithuania of those days and the importance from scientific point of view of problems of the sources of law valid at that time in order to fill in the gap in case law.
Careful analysis of the fundamental legal acts of Lithuania in 1918-1940 that regulated the system of courts and their practice and doctrine proved that significance of the precedent as the source of law in Lithuania can in no way be denied.
The courts were obliged to pass decisions on behalf of the Republic of Lithuania appealing exclusively to laws and consciosness however these sources were insufficient. There used to exist two forms of practice – analysis of application of laws of case law and issues of judges` advisory application of laws therefore the significance of law originating from previuos cases may not be challenged.
In case trials the courts could refer only to the decisions of the supreme judicial instance – the Supreme Tribunal. The provision consolidated in case law and approved by the official decision of the Supreme Tribunal used to be kind of secondary source of law that filled in the gaps in law.
Though cassation decisions were mandatory in the cases they were accepted in however the law interpretations of the most authoritative court instances were applied in all analogical cases. This helped to model a unified legal consciosness of lawyers and public. Furthermore the contemporary codes of procedures insisted on cassational decisions clarifying the real essence of laws to be announced publicly.
Moreover the judicial precedent was interpreted not as a result of valid law interpretetation but as well as new legal standard formulated by a judge for clarifying disputes.
This Article, based on corresponding provisions of the Constitutions of Lithuania, the Provisional Law on the Courts of Lithuania and Organization of Their Work and the Law on Court System as well as works of the most prominent scientists of law of these times, tries to reveal the importance of case law as the source of law in 1918-1940. In the research of the mentioned subject we use historical, logical and linguistic methods.
The chronological research period of this work – 1918-1940 - was chosen to emphasize the vitality of laws of the Independent State of Lithuania of those days and the importance from scientific point of view of problems of the sources of law valid at that time in order to fill in the gap in case law.
Careful analysis of the fundamental legal acts of Lithuania in 1918-1940 that regulated the system of courts and their practice and doctrine proved that significance of the precedent as the source of law in Lithuania can in no way be denied.
The courts were obliged to pass decisions on behalf of the Republic of Lithuania appealing exclusively to laws and consciosness however these sources were insufficient. There used to exist two forms of practice – analysis of application of laws of case law and issues of judges` advisory application of laws therefore the significance of law originating from previuos cases may not be challenged.
In case trials the courts could refer only to the decisions of the supreme judicial instance – the Supreme Tribunal. The provision consolidated in case law and approved by the official decision of the Supreme Tribunal used to be kind of secondary source of law that filled in the gaps in law.
Though cassation decisions were mandatory in the cases they were accepted in however the law interpretations of the most authoritative court instances were applied in all analogical cases. This helped to model a unified legal consciosness of lawyers and public. Furthermore the contemporary codes of procedures insisted on cassational decisions clarifying the real essence of laws to be announced publicly.
Moreover the judicial precedent was interpreted not as a result of valid law interpretetation but as well as new legal standard formulated by a judge for clarifying disputes.
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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.
