| Abstract [eng] |
The paper discusses conceptual and legal practice-related problems that stem from the so-called phenomenon of “modern legal pluralism” (or „new legal pluralism“, „the New Middle Ages“). The paper is comprised of two interrelated chapters. In the first chapter, the author discusses the notion, evolution and distinguishing features of the above mentioned phenomenon. It is a descriptive analysis that relies on anthropological premises, sociological insights (especially N.Luhmann‘s systems theory, J.Habermas‘s discourse theory) as well as historical, legal and sociological data. This part of research leads to several conclusions. The main of them: „modern legal pluralism“ is a unique phenomenon, rather different from any of it‘s forerunners. Inter alia – it is way less spontanic (in F.A. von Hayek‘s terms) than it‘s prototype from the late Middle Ages. „New legal pluralism‘s“ specific features are highly influenced by „rationalisation of the lifeworld“ that has started in the XVIIIth century. The second part of the research is prescriptive. Here the paper continues by discussing problems of legal argumentation related to the “new legal pluralism“. Particular attention is given to the lawgiver‘s position as well as to application of non-state created rules in Lithuanian courts. While also refering to the findings of the first part of research, the paper argues that both present and previous attitudes of Lithuanian lawgiver towards the “new legal pluralism” are defective. It proposes an alternative way of using it in legal argumentation within Lithuanian legal system. The proposal is based on modified concept of “persuasive precedent”: judges should view non-state normative systems as collections of arguments, value decisions, practice rather than binding rules. These systems should serve as examples of positive argumentation that the „judge Hercules“ could use for reconstructing interrelations among national legal rules, principles and legal values. |
