| Abstract [eng] |
The author is dealing with the issue of relations between legal reasoning and law interpretation, therefore, disclosing the appearance of such relations in the context of precedent. Furthermore, the question whether precedent is the constitutional part of the legal reasoning or law interpretation is met. In answering the previous question issues on the definition and conditions of legal reasoning, the definition and conditions of law interpretation and their correlation are approached. As the different ways of the precedent appearance in the legal reasoning and law interpretation are analyzed during the course of the work, the definition of precedent and its mechanism of working are analyzed more thorough, as these issues reveal that the theory of precedent is the integral part of the legal reasoning theory, having its particular and unique aspect – the mandatory order to the court to ground ones decisions taking into consideration previous decisions of the courts. In that way it is to be concluded, that the precedent as an argument of the court is compulsory not for its persuasive content but for the reason that it has been established by the superior court. The upper-mentioned specifics are confirmed by the analysis of the practice of Lithuanian Republic courts and the practice of the Supreme Court of Lithuania. In the course of work the issue of the importance of precedent’s elements is approached by the author, giving a conclusion that the distinguishing of different elements is difficult, therefore, making legal reasoning more complicated, on the other hand, making it more flexible. As one of the issues on legal reasoning’s flexibility in using precedent the rules on evading the mandatory grounding with the precedent are discussed (distinguishing, overruling and precedents sub silentio). Finally, the issue on the origin of the precedent itself as the argument is discussed – whether it is an act of legal reasoning or law establishment. It should be noted that a lot of discussions are going in law theory and philosophy of law in the upper-mentioned field, as an example, the most famous law scholars are cited on previous topic. By summarizing it is concluded that often when using precedent as an argument a statement generated by ad hoc law establishment instead of legal reasoning is used. |
