LITUANUS
LITHUANIAN QUARTERLY JOURNAL OF ARTS AND SCIENCES
 
Volume 50, No.1 - Spring 2004
Editor of this issue: Tadas Klimas
ISSN 0024-5089
Copyright © 2004 LITUANUS Foundation, Inc.
 Lituanus
www.lituanus.org

ON THE ACADEMIC UNDERSTANDING
OF LEGAL INTERPRETATION IN LITHUANIA

TOMAS BERKMANAS
Vytautas Magnus University

Tomas Berkmanas is a graduate of Vytautas Magnus University School of Law where he presently is a lecturer in law.

Introduction

An analysis of the academic understanding of legal interpretation in Lithuania should begin with the transformations that took place over the last fifteen years in the Soviet and post-Soviet region. The transformations involved many spheres of social life, including the law. But the basic structure of these transformations must be understood correctly to rightly assess what went right or wrong with the understanding of legal interpretation in Lithuania. The stereotype is that during the transformation one understanding was changed or, speaking more exactly, another understanding became the preferred understanding.1 In many cases, however, what the transformation really resulted in was a proliferation of understandings in relation to one or another sphere or phenomenon of social life. That was the coming of the spirit of liberalism to this region. The formerly sovietized were de-dogmatized and the world of various ideas, ideologies, conceptions or, generally, understandings opened before them. It is not, however, easy to get rid of a dogmatic mode of thinking. Usually the proliferation was accompanied by a straightforward, even dogmatic, devaluation of the one understanding which had been prevalent in Soviet times.

Thus the real opposition in the minds of the academics was either between the one understanding and the many including the one,2 or, more often, between the one and the many except the one.3 I call the former case simple theoretical proliferation and the latter - biased theoretical proliferation. These proliferations are the reality of the academic understanding of legal interpretation in Lithuania and, therefore, they and the problems they raise should, inevitably be analyzed in this article under the above name.

Simple theoretical proliferation in relationship to the phenomenon of legal interpretation was the cause of a series of serious conceptual inconsistencies or misleading representations. Of course, "the world of legal interpretation" is generally still very disordered. There are different understandings of legal interpretation itself, as also of its methods - their names and contents. Nevertheless, this cannot be an excuse for conceptual inconsistency, and it is undeniable that the names of some methods of interpretation have a firm link to concrete contents, so to change that linkage amounts, at the least, to a misleading representation of the method. Also naming and discussing some methods of legal interpretation seem to be extrinsic because they have nothing to do with the specificity of legal interpretation. These are the concerns of Parts 1, 4 and 5 of this article.

Biased theoretical proliferation in relation to the phenomenon of legal interpretation in Lithuanian academic circles was the cause of the undervaluation of the linguistic method of legal interpretation, otherwise called mechanical or formal, and, an over valuation of the doctrine of an active court. All of the main texts analyzed in this article are affected or over-affected by the allegedly Western conception of an interpretatively active court, opposing it to the Soviet conception of an interpretatively passive court. Usually, the doctrine of the active court in these texts is not only the doctrine of the interpretatively active court, but also, as a consequence, the doctrine of the legislatively active court. However, this opposition in the analyzed texts usually lacks a critical approach: it is tendentious toward the linguistic method of legal interpretation, as well as to the detriment of the root ideology of modern democracy - the doctrine of the separation of powers. These are the concerns of Parts 2 and 3 of this article.

Unfortunately, there was literally no written representation of the academic4 understanding of legal interpretation in Lithuania for quite a long time. A significant change in the absence of academic understanding took place in 1999, when the book by Dalia Mikelėnienė; and Valentinas Mikelėnas Court Process: Aspects of Interpretation and Application of Law, with the third part devoted to legal interpretation, was published.5 The second important publication on the subject was a textbook by Alfonsas Vaišvila Legal Theory published in 2000, which has a significant section on legal interpretation.6 Until now, there have been no other books by Lithuanian authors that discuss legal interpretation; therefore, these are the principal books analyzed and criticized below.

There are very few academic articles by Lithuanian authors that concentrate on the problems of legal interpretation. After the investigation of about fifty issues of Lithuanian law journals (and these are roughly all the issues since Lithuania regained its independence in 1990) I identified only three articles: the first, by Živile Liekytė, is called "Theoretical and Practical Aspects of Literal, Extensive and Restrictive Legal Interpretation"7; the second, by Vitas Vasiliauskas, "The Problem of the Concept of Legal Precedent as the Source of Law: Legal Precedent as the New Legal Norm or as the Result of the Interpretation (Development) of Law"8; and the third, by Valentinas Mikelėnas "The Guarantee of the Uniform Interpretation of Law and the Principle of Equality Before Law: Requirements of Legal Certainty".9 These are the principal articles analyzed and criticized below.

All of these texts, except for the Mikelėnas Article, are in Lithuanian; all of the Lithuanian texts cited were translated by the author of this article. It is important to stress that this is a critical review. There may be a lot of positive ideas in the texts discussed below, but they will rarely be raised: that is not the purpose of this article. Rather, it aims at revealing and analyzing problems and possible flaws in the academic understanding of legal interpretation in Lithuania. The methods of this article are analysis and comparison.

Finally, very often the platform upon which the article builds is a book by Antonin Scalia: A Matter of Interpretation.10 It would not be an exaggeration to say that the author has been considerably influenced by that text.

1. General Conceptual Problems

The approach to legal interpretation in Lithuania confronts two problems at the initial stage: the problem of differentiation of legal interpretation from other concepts and, as a partial consequence of it, the problem of definition of legal interpretation.

The problem of differentiation is obvious in the book by Mikelėnas and Mikelėnienė.11 The second part of their book (it consists of three parts) is called "Theory and Practice of Legal Argumentation," the third, "Theoretical and Practical Questions of Legal Interpretation." This structure should mean that we have a clear and logical relationship between legal argumentation and legal interpretation. And it appears that we do: it is the relationship of logical incorporation, not amounting to the oneness. At the beginning of the third part Mikelenas writes: "after considering theoretical and practical questions of legal argumentation, it would be consistent to go on with the deeper analysis of one of its constituent parts -legal interpretation."12 But the second sentence of that part puts everything in a fog. Mikelėnas writes: "[both] of these processes are inherently connected - legal interpretation helps with the determination of the true meaning of the legal norm, and by means of legal argumentation we say why the true presented meaning of the legal norm is rational, sensible, well-founded."13 It seems that interpretation is not a constituent part of argumentation, but a separate and unique process, taking place temporarily before argumentation. On the other hand, what is the difference between the determination of the true meaning of the legal norm and saying why that true (or "true") meaning is rational, sensible, well-founded? Do we not by stating why the true meaning of the legal norm is rational or well-founded, further construct the legal norm? We may try to grasp the difference between legal interpretation and legal argumentation while considering parts two and three of the book by Mikelėnienė and Mikelėnas as a whole, but at the very moment it appears that we have grasped it,14 one sentence-the second sentence of the third part-can bewilder us completely.15 Actually, the authors understood the difficulty of differentiating between legal argumentation and legal interpretation,16 but that is exactly why they should not make this difference the basis of their book.

The problem of differentiation is, also naturally, the problem of the definition of legal interpretation. However, there is also a problem more inherent to the definition of legal interpretation. This problem arises when the authors of the principal texts use nonsubstantial adjectives (or adverbs) to define legal interpretation. An example is true meaning in the book by Mikelėnienė and Mikelėnas cited above. Other examples are the following [italicized by the author of this article]:

The question is: what does real as opposed to unreal; appropriate, as opposed to inappropriate; clear as opposed to unclear; exact, as opposed to inexact; less certain, as opposed to more certain mean? Where do inexact and unclear end and exact and clear begin? Does the interpretation of the court always make a legal rule more clear or exact, or may it be vice-versa? At the least - what does it say about legal interpretation? The more general and definitional the text, the better to avoid words that presuppose, at best, vague oppositions.22 Furthermore, it becomes much more problematic if the author tries to base his subsequent statements and ideologies on these supposed quasi-oppositions, as happened with the doctrine of the active court in the Mikelėnas article. This will be discussed more thoroughly in Part 3 of this article.

This type of conceptual differentiation and definition23 of legal interpretation adds hardly anything to the clarification of this phenomenon in Lithuania. It rather disturbs or misleads the reader, especially if various ideologies are deducted from them. Additionally, this kind of differentiation and definition does not provide a general ideological basis for the discussion of the concrete methods of legal interpretation, and may even be inconsistent with them.24 Another point is that, although the understanding of more-or-less conceptual disorder in the matters of legal interpretation is not alien to some European authors,25 and Mikelėnas is right when he states that there is no clear methodology of legal interpretation,26 the understandings of some methods of interpretation are too stable to understand them otherwise. Because of this and for other logical reasons, it appears that distinguishing, naming and discussing some methods of legal interpretation by Lithuanian authors are at least questionable.27

2. Linguistic Interpretation

The discussion about the methods of interpretation in the book by Mikelėnienė and Mikelėnas begins with the linguistic method and that can not be accidental - its primacy in the text is a sign of its importance and, as a separate instance of importance, primacy. At the beginning, Mikelėnas presents the method as the one that is applied most often and should be applied in the first place.28 The latter case has four reasons, one of which is the following:

[SJtatutes are adopted by legislative power, which in a democratic state is formed in accordance with the principles of democracy. Other powers - courts and executive power, which are usually not formed directly by the society, but through its elected legislative power, shall follow the word of the legislator, formulated in the statute.29

It looks like a democratic and, therefore, logically adequate start. However, further on in the text it appears that the importance of the method was mainly its frequent occurrence; the primacy of this method, especially the democratic input under it, is forgotten or at least substantially devalued while other values are raised. For example, in the middle of the discussion about method, we find the statement that definition in the statute has its negative consequences, because the court is bound by it and may not consider changes in social relations.30 Finally, by the end of the discussion, the concept of the primacy of the linguistic method has already changed to balance between linguistic and other methods.31 Mikelėnas writes that;

The court shall neither become a slave, blindly applying the letter of the statute, nor a rebel, not adhering to the statute. [...] The statute, having clear words, is applied under the common meaning of its words. However, when the words of the statute are not sufficiently clear, the court shall apply other methods of legal interpretation in explaining the true meaning and sense of the statute.32

Vague oppositions of clear and unclear, true and untrue are at the basis of the argument. They come, as we already have seen, from a common conceptual field, but their position in these cases is contradictory. If the essence of legal interpretation is to make uncertain things certain, inexact - exact, unclear - clear, what then is the place of linguistic interpretation if it only deals with certain, clear or exact statutes? Is it still interpretation? This could only mean one thing - in the presentation of linguistic interpretation we already have a hidden critique or even negation of the method as one of interpretation. It cannot be that - real interpretation, as, for example, dynamic or other methods of interpretation. This is the bias hidden in the linguistic method of legal interpretation, which also has forms of representation not so hidden,33 but in the the book by Mikelėnienė and Mikelėnas, especially in its third part, it is, we may say metaphorically, the "soul of the book." Here a dogma of the Soviet world is exchanged for a dogma of the Western world; the use of vague and even contradictory oppositions to ground this change is an instance of propaganda.

And that is not the only one. The other instance is clearer - alternative names for the express or implied alleged linguistic method of interpretation. The names are mechanical 34 or, in specific cases of application, literal 35 interpretation.36 In Lithuania, it could also be understood as something like word-for-word (pažodinis) interpretation, or, as Mikelėnas states, simply repeating and quoting the words of the statute.37 However, these have nothing to do with normal linguistic interpretation, as explained by Scalia in his short presentation on textualism, a democratically adequate interpretation technique or philosophy, essentially akin to the linguistic method of legal interpretation.38 Scalia alleges that "the good textualist is not a literalist."39 Textualism means that, generally speaking, the text of a democratically adopted law is the law that rules in a democratic state.40 This allows a linguistically adequate consideration of the system of the text, or even its history, to recover its original meaning,41 not a pure linguistic consideration; although, strictly speaking, they are all, linguistic interpretations.

The other name found in the same context is formal 42. The use of this word, if it occurs in the context of an expressed or implied critique of the linguistic method of interpretation, is much more of a misuse than is the previous case, because what is meant by it is very unclear. What law - being logical and consistent, is not formal? The same with the interpretation and application of the law? To paraphrase Scalia, "[the] rule of law is about form."43 By using this word we usually summarize such qualities as clearness of meaning, consistency, orderliness, adherence to the rules of logic and so on. Why then complain about systematic inconsistency in Lithuanian law?44 That is, once again, propaganda; and all propaganda has hidden aims. It looks like an attack on the doctrine of the separation of powers (which is formal in its very essence) raising the judiciary to legislative power, but I will stop this line of argumentation for now, because it is further discussed in Part 3 of this article.

Nevertheless, although all principal authors, discussed in this article, give their due to the critique of "Soviet formalism," not all are "obsessed by the spirit" of the critique - expressed or hidden. The title of the Liekytė article itself-"Theoretical and Practical Aspects of Literal,45 Extensive and Restrictive Legal Interpretation" - signifies that here we will find a more attentive and cautious approach to legal interpretation, especially linguistic, than is found in the Mikelėnienė and Mikelėnas or Vasiliauskas texts. That is because in the Liekytė article the datum is, generally, linguistic and democratically adequate; at first we have a word or a text, presumably the word or the text of the statute, and its meaning, which afterwards may be extended or restricted.46

Further on, one of Liekyte's main concerns is the quality of statutory law and the quality of statutory interpretation. The author contends that "the problems of the imperfection of the statutes and the interpretation of legal acts can be solved by legislation, which corresponds to the technique of law, and by interpreting law (adequately applying methods of legal interpretation, choosing kinds of legal interpretation)47. Also Liekytė identifies more of the linguistic method of interpretation and more definitely48 accepts its importance, primacy or, at least, the primacy of the text of the legal norm, than it would be if she were less traditional. For example, she states that literal interpretation dominates in criminal law, administrative law, constitutional law and civil law;49 that "by distinguishing literal legal interpretation, defining its limits and cases, when it should be applied, we prevent unreasonable expansion of the boundaries of the regulation of the legal norms, prevent illegitimate application of legal norms";50 that "by an expansive interpretation of the legal norms, interpretation is made by [...] not overstepping the boundaries of the contents of the legal norm, even though its textual expression is unclear, maybe ambiguous."51 These aspects of Liekytė's approach, however, are rather an exception to the general tendency to devalue the linguistic method of legal interpretation.

To generalize, the linguistic method of interpretation is in danger of being devalued in Lithuania. Devaluation is more dangerous if it is done by means of propaganda and illogical argumentation. It could be right that courts should, generally, interpret law, but the acceptance of the plurality of legal interpretation should not be a hasty process; especially in a constitutionally democratic state. The former aspect -how hurried the process is - will be revealed on a broader scale in Parts 4 and 5 of this article. For now, in the following part, the latter aspect - how undemocratic the process may be - will be discussed more broadly.

3. Doctrine of the Active Court

Almost all52 the major academic writers, discussed in this article, assume the courts, which use so-called mechanical or formal linguistic interpretation, are inactive and powerless, and overly propagate the doctrine of the active court. However, while emphasizing the need of interpretative activism of the court, almost all the authors discussed here, sometimes unconsciously,53 cross the line between the power to interpret law and the power to create law, which, in their view, may be exercised by the courts. Therefore, in these cases, the propagation of the doctrine of an active court is done to the detriment of the root doctrine of modern democracy - that of the separation of powers.54

This doctrine actually means that the judiciary acquires some degree of power in relationship to law. And that is a good start for the doctrine of an active court, This good start however, should not turn into a "rush towards" the unlimited activity of the court, by forgetting what else the doctrine of the separation of powers says: i.e., that the idea is that the judiciary does not have the power to legislate. Here the test is not quantitative, but qualitative, and the essence of this doctrine is not what is general - governmental power, but what is specific - some function of that power, which is attributed to one or another branch of the government. The outcome is that a democratic legislature creates the law, the administration executes that law, and the judiciary applies that law to concrete cases.

It is a general and abstract scheme, or, in other words, an ideal;55 and it is well known how hard it is to put that ideal into reality. But that is a mistake precisely, because of the difficulty with reality, to conclude that we should devalue or even abandon the doctrine of the separation of powers by saying that the separation is, in fact, cooperation.56 Of course, it is about an abstract scheme; and there is, as a matter of logic, no abstract scheme in the world that is not falsifiable, or, in other words, that does not have "problems with reality."57 The problem here is the scientific approach in general. The doctrine of the separation of powers is an ethical, but not a scientific ideology, and we should not ask if it is possible to turn that doctrine into reality, but what the principles of action of some institutions should be. To ask the former question is a good propagandistic move against the doctrine of the separation of powers, because it raises the doctrine of the activist court to the level of the doctrine of the separation of powers or even higher. Nevertheless, as a matter of principle, the priority should be of the doctrine of the separation of powers, and there we may also be more or less radical. I think that the optimal principle for the judicial branch of government is that a judiciary shall not legislate as much as possible.58 However, in Lithuanian academic understanding even this moderate approach is overwhelmed59 by the doctrine of an activist court with apparently vague origins and vaguer motives.

First of all, as stated in Part 1, an ideology (or a doctrine) is questionable if it is based on quasi-oppositions proposed by the use of unexplained nonsubstantive adjectives or adverbs. Examples of such cases can be found in the Vasiliauskas article, where he talks about the sense of clarity supposed by precedent,60 or in the Mikelėnas article, where he talks about judicial interpretative creativity as a necessary prerequisite for legal interpretation that makes an uncertain and unpredictable legal rule more certain and more predictable.61

What does certainty as opposed to uncertainty mean? Does legal interpretation make a legal rule more certain or predictable; may it itself be uncertain or unpredictable? Mikelėnas himself points out that "the result of interpretation is to some extent independent and could itself be uncertain."62 Or the same with precedent-is it clearer than a democratically adopted legal rule? These questions, if unanswered, shed serious doubts on the doctrine of the activist court as a whole.

Secondly, in the third part of his article Mikelėnas names and discusses five factors of uncertainty in legal rules, that are, consequently, also the motives for legal interpretation (or creative jurisprudence) in courts: (i) ambiguity, indefiniteness and vagueness of language; (ii) the dynamics of social relationships; (iii) internal contradiction in the system of law; (iv) gaps in the law; (v) imperfections in the legislative process.63 It should be pointed out that all these factors are attributed to legal rules, created by a democratic legislature. They may all, however, be attributed to the law, created by a judiciary, especially in Anglo-American systems of law, where it usually regulates broad aspects of social life, such as family relationships or business contracts. This means principally that these motives make no difference between a law created by a democratic legislature and a law created by the judiciary and, therefore, they are, to say the least, weak.64

Some motives require separate discussion, however. First of all, the dynamics of social relationships; this argument in favor of the active court can be found both in Mikelėnas's article65 and in the book by Mikelėnas and Mikelėnienė.66 Mikelėnas's argument is that, in case of a discrepancy between valid laws, mainly having in mind statutory law, and changed or evolved social conditions or social reality, the judiciary should intervene by changing that valid law and making it correspond to changed social conditions. Alternately, it can be called a dynamic legal interpretation,67 or, according to Mikelėnas, a socially balanced interpretation, by which even a bad statute can be changed into a paragon, a standard of legal thought.68 This attitude is not at all counterbalanced by the discussion of the limitations and problems of dynamism as a mode of legal interpretation. What if the purpose of the law, or at least a special law, such as a constitution, may be "to prevent change - to embed certain rights in such a manner that future generations cannot readily take them away"?69 What if "there is no agreement and no chance of agreement, upon what is to be the guiding principle of the evolution"70 or social change? Another point is that social reality is also dynamic in relation to precedent law, but a very strange situation arises here - if you are a complete activist, you must abandon the doctrine of the stare decisis or at least substantially modify it, so that, after modification, it should say that the stare decisis applies, unless the social reality has evolved. If you do not abandon or modify it,71 but still leave the dynamist (now, only in relationship to the law created by a democratic legislature), then the result is that the law, created by a judiciary, is placed in a higher position than the law created by a democratic legislature; the former is "much more the law" than the latter.72 That is a totally distorted situation.

The other motive offered is gaps in the law, and it is very popular.73 For example, according to Vasiliauskas, the gaps are one of the main reasons why judges should create law. Liekytė talks about them as well. However, serious questions could be raised about the phenomenon of a gap itself and about the methods used to resolve the problem. On the latter aspect - the method is usually named an analogy, but scholars raise serious questions about the nature of this method of thinking; the most important of them is what do we know about this mode of thinking, which is so important in this case?74 On this phenomenon - in her article Liekytė states that "analogy presupposes the existence of a legal gap, i.e., nonexistence of the appropriate legal norm when appropriate facts, having legal significance, do not come into the sphere of the regulation by the legal norms."75 What do "appropriate legal norm" and "appropriate facts, having legal significance" mean? Do we have any criteria to give a nonostensive definition of these concepts? How do we distinguish the appropriate facts, having legal significance, from the facts of our lives that a legislature specifically decided not to regulate - that are legally insignificant? We know that cases are often dismissed on the absence of grounds or a legal norm to be applied. Why should some cases be exempted from this tradition of practice and left for the judges to fill in in their absence?76 The problem is that there may be no general criteria to distinguish between a legal gap and the absence of legal grounds, as well as between legal significance and insignificance.77

Nevertheless, notwithstanding all these theoretical problems of dynamic interpretation or filling in the gaps of law, these activities, if done by a judiciary, are, strictly speaking, undemocratic. Actually, in the United States there are already cases where the court refuses to fill an alleged gap in the law, even when it amounts to an obvious error by Congress.78 These are still rare occurrences of the radical priority of the doctrine of the separation of powers. The principle is that a judiciary shall never legislate. However, at least in Lithuania, to pursue a radical priority of the doctrine of the separation of powers is hardly possible, because democratically adopted statutes themselves sometimes require legislative intervention by the judiciary (for example, in the case of gaps in the law).79 The theoretical question then is whether we should think in terms leading to a lower degree of radicalism, but without "betraying" democracy?

The phenomenon of a gap in the law is usually understood as a consequence of more general motives - imperfection of the legislative process, caused by the workload of the legislator; working not with concrete cases, but abstract rules; and sometimes vague linguistic input. The mistake in this sequence of thinking is to go from gaps and legislative mistakes directly to legislative intervention by the judiciary, as though it is the first or even the only possible course of action. The doctrine of the separation of powers is not so impractical here. Actually, some Lithuanian academic writers know the practical solution that should be given priority. It is to improve the work of a democratic legislature, especially its linguistic input, as well as the linguistic input of all law-related processes.80

Only after taking this step toward improvement, generally speaking, should we think about legislative intervention by a judiciary, accepting a less radical principle than that the judiciary shall never legislate. This is not an absolute rejection of the doctrine of an active court, but it shall be at least secondary in relation to the doctrine of the separation of powers.81 The principle then is that a judiciary shall not legislate as much as possible. "Possible" in the formula represents only the already mentioned "priority" approach keeping in mind the entire system of separate powers: if we must choose between legislation by a democratic legislature and legislation by a judiciary, the former shall be chosen.82 This is the least possible "step back," if democracy means anything. The principle not only applies to the judicial branch, but also to the legislative. Only in this way can we understand their cooperation - the cooperation to eliminate legislation by the judiciary. The initial suggestions may be the following: led by the above principle, a democratic legislature shall improve linguistic input and, generally, the quality of its work, including the avoidance of system inconsistencies, vague terms, mistakes, gaps in the law, and the like; a judiciary, on its side, shall limit and define its legislation by the formulation of more logically adequate criteria for distinguishing such gaps, avoidance of the adaptation of law to social reality, elaboration of the science of statutory interpretation, improvement of linguistic input of all court process, and the like. Further discussion on this topic, however, would be outside the range of this article.

To generalize, a state, having a constitution with the very first article stating that the state is "a democratic republic",83 has only two possible ways - to pursue a radical or, at least, a relevant priority of the doctrine of the separation of powers. It is a message that is lacking in the academic texts on legal interpretation in Lithuania, where the doctrine of an activist court is raised and propagated. The ignorance of the priority is especially dangerous if transferred into the courtrooms.84 In Soviet times, Lithuania had no democracy and no possibility to separate the powers of its government. Now, when it has a chance to, it may turn in the least biased direction with its judicial branch.

4. Historical Interpretation

Both authors, Mikelėnas and Vaišvila, discussing the methods of legal interpretation in detail, distinguish the historical method of interpretation. However, their understanding of the method differ in essence. Mikelėnas presents this method as requiring the court to consider "the essentially changed circumstances of the life of society" in the interpretation of statutes.85 In another place he states, that while analyzing a legal norm in a historical perspective, we consider the law to be "not fixed and stable, but a dynamic phenomenon, corresponding to changes in the life of society" [italicized by the author of this article].86 He also states that this method requires consideration of the intentions of the legislature - analysis of the history of the birth, creation and deliberation of the legal norm.87

Although Mikelėnas is right about the intentional part of the method in general, his dynamic part is clearly a misrepresentation or at least something very exceptional and rare in the understanding of the method under the name historical. In this case, the most precise and correct thing should be to distinguish the dynamic method of interpretation.88 However, Mikelėnas chooses to integrate the ideology of this potential method into the historical method, intermingle it with the ideology of legislative intent, and, by the way, also differentiate a separate method of legislative intent,89 of the legislator, which is close to historical and teleological methods, but does not coincide with them.90 It is very possible that the cause of all this mess is the integration of the dynamic part into the ideology of the historical method of interpretation.

On the noncoincidence of the historical and legislative intent methods of interpretation, Mikelėnas writes that "the method of the legislative intent, in essence, means the determination of the subjective intentions of the legislators"91 [italicized by the author of this article]. On the other hand, "while applying the historical method we try to determine not the intentions of the legislator, but rather the objective historical circumstances of the creation and adoption of the statutes and the later changes"92 [italicized by the author of this article]. But here the distinction between subjective and objective is nonsensical, because it is unclear what is meant by subjective intentions, since the subjective intentions of legislators are usually related to the creation and adoption of statutes and, further on, with the historical method of legal interpretation.

L. Neville Brown and Tom Kennedy, while discussing the methods of interpretation of the Court of Justice of the European Communities (ESJ), state that "[b]y historical interpretation is usually meant the quest for the subjective intention of the author of the text,"93 and that "the judge may examine the travaux préparatories (preparatory work) in the pursuit of the subjective intention of the legislator."94 It is also worth noting that consideration of objective intentions sometimes is attached to the historical method of interpretation, but it is more consistent and akin to the Continental understanding of the method not to do this.95 There, the historical method has mainly to do with the history of the statute before it is adopted, not with the history of the statute after that, and definitely not with the relationship between the history of the adopted statute and the history of the society. In other words, what is important in historical interpretation is the history of the enacting of the law, but not the history of the life of the law in relation to the history of the life of the society. Therefore, even though the integration of the historical and dynamic methods of legal interpretation is not an absolute mistake, it is clearly a mistake in relation to the Continental understanding of legal interpretation and law, to which Lithuania should belong. Furthermore, I think that in spite of Mikelėnas's distinguishing of (1) historical, (2) teleological and (3) legislative intent and methods of legal interpretation, it would be logically (not regionally) more appropriate to distinguish the following methods: (1) dynamic, considering effects of the social change on legal norms; (2) historical, considering the subjective intentions of the legislature; and (3) teleological, integrating the consideration of objective intentions of the legislator.

On the other hand, Vaišvila's understanding of the historical method of legal interpretation is much more adequate than that of Mikelėnas. Vaišvila's position is that by the use of this method "the meaning of the norm is ascertained by considering the social and political aims of the adoption of the norm, and the circumstances, under which it was adopted 96 [italicized by the author of this article]; further on he states, that "the interpreter could find out about [these] aims while analyzing the documents of the enacting of the legal norms, the drafts of the norms ..."97 [italicized by author of this article]. This essentially means that the interpreter is interested in what happened to the norm before it was adopted, ascertaining this mainly from the travaux préparatoires. It has nothing to do with a change in the meaning of the already adopted norm in relation to changes in social circumstances, customs or attitudes. Nevertheless, Vaišvila decides to integrate into this method a consideration of the objective intents of the legislator, which are often ascertained by looking at the preamble of the legal norm.98 However, it is clear from his text that he is writing about what could also be called a teleological interpretation: that is, the determination of "the social and political aims of the legal norm"99 [italicized by the author of this article]. I think that it is more consistent and not misleading in relation to Lithuania's integration into the European Union to regard historical interpretation as that which has to do only with the subjective intents of the legislator, i.e., with considering the travaux préparatories.

5. Extrinsic Methods

Simple theoretical proliferation of the understanding of legal interpretation has its problem at a more general level; that is the problem of the over-differentiation100 of the methods of legal interpretation. Valentinas Mikelėnas differentiates ten methods101 of legal interpretation and Vaisvila agrees that this is the generally accepted number,102 even though Vaišvila himself distinguishes four traditional methods103 for his analysis. My position is that the differentiation of some methods of legal interpretation is logically inadequate and, therefore, extrinsic and misleading.

The general idea is that the differentiation of the method of legal interpretation, firstly, should not be the differentiation of what amounts to the application of some general method of thinking in the court process, and secondly, should not be the differentiation of what amounts to the application of some general principle of the legal system or law in the court process.

On the first aspect - logic, analogy and comparison should not be the basis for distinguishing the corresponding methods of legal interpretation because they do not specify legal interpretation in relation to interpretation in general. What distinguishes the method of legal interpretation from other methods of interpretation and other modes of thought (analysis, analogy, comparison), is how the meaning of law specifically 104 is determined, amounting to a specific legal interpretation. We may write books, dissertations, and articles using logic, analogy, and comparisons. These general laws of thinking are not attributed to legal interpretation only, but to thinking in general. Furthermore, comparisons and analogies in legal interpretation should be subsumed under the systematic method of legal interpretation, and logic is in every method of legal interpretation. In comparison or analogy, abstract notions of analogy and comparison are not the most important things. What is important is what we look at when we compare or find analogies; that is, very generally, other law - constitutions, statutes, decrees, court decisions or even journal articles. Therefore, these are usually only instances of the application of the systematic method of legal interpretation at a more general level. Of course, that makes the interpreter presuppose a more holistic understanding of the idea of the system of law.105

While analyzing the linguistic (not logical) method of legal interpretation, Mikelėnas, in one instance writes about logic - about the absurd and paradoxical results stemming from an ignorance of the rules of logic in interpretation.106 It is probable that this is not accidental: why talk about logic while analyzing the linguistic method of legal interpretation? Perhaps, because logic is also in our language, in our normal (not the non compos mentis) application of it? Or is it, or, at least, should it be, in every normal interpretation in general? That is exactly why every lawyer must be seriously schooled in logic and why there is no basis to distinguish a method of legal interpretation under the name logical ~ since every interpretation, be it linguistic, systematic, teleological, or other, must be logical. Vaisvila recognizes that "generally, logical thinking is the means for every construction,"107 but he claims that during logical interpretation "laws of logic are applied separately from other methods of interpretation."108 It appears that when the laws of logic are applied, while using a method of legal interpretation (other than logical) it is not ipso facto the method of logical interpretation the interpreter is applying. It shows the difficulty of differentiation the logical method of legal interpretation. Even if on rare occasions a judge explicitly and openly applies the laws of logic - even that is not grounds for distinguishing the logical method of legal interpretation. Just as no judge may even choose between logic and alogic, every lawyer must be taught logic, but not the logical method of legal interpretation.

On the second aspect - allowing, using, applying, etc., of precedent or the principle of stare decisis, or some other general principle of law or legal system, should not be the basis for distinguishing the corresponding methods of legal interpretation because, in their essence they have nothing to do with legal interpretation, but the declaration and application of law. Stare decisis is not a method of legal interpretation, but a general principle of the system of law. Its essence is that the decision of the court is the law, but not what is examined to determine the meaning of some other law. Accordingly, stare decisis determines what the law is;109 not what the law means, even though the decision of the court may itself be an interpretation of some other law. The same applies to the general principles of law - they are in the law, but not where we look to determine the meaning of an already existing law.

Conclusions

Academic understanding of legal interpretation in Lithuania encounters conceptual and doctrinal problems. General conceptual problems relate to the differentiation and definition of legal interpretation as a phenomenon. That is, the difference between legal interpretation and legal argumentation is unclear, and the nonsubstantive adjectives (or adverbs) or oppositions presupposed by them are used to define the concept of legal interpretation. They may disturb the reader and not provide a general ideological basis for the discussion of concrete methods of legal interpretation, or may even be inconsistent with them.

Specific conceptual problems arise from misleading, logically inadequate or at least questionable naming and analysis of some concrete methods of legal interpretation. First of all, the historical method of legal interpretation should involve the reconstruction of the subjective intents of the legislator, amounting mainly to the consideration of the travaux préparatories. A consideration of the conformity of legal norms to social reality should not be attributed to this method. Secondly, the differentiation of methods of legal interpretation should not be a differentiation of what amounts to the application of some general method of thinking in the court process the application of some general principle of the legal system or law in the court process: based on this, logical and comparative methods of those based on analogy, general principles of law and precedent should not be distinguished and analyzed.

Doctrinal problems in Lithuania are related to the devaluation of the linguistic method of interpretation and, as a consequence, raising and propagating the doctrine of an active court to the detriment of the doctrine of the separation of powers. Especially dangerous is the fact that the devaluation of the linguistic method of legal interpretation and the raising of the doctrine of an activist court is done by means of propaganda: by naming the linguistic interpretation as mechanical or formal, with a clearly negative tone, and also by imputing to the doctrine of the separation of powers the quality of the ideal and alleging, therefore, that it is unrealizable. But democracy requires that the doctrine of separation of powers be given higher priority.


1. For instance, from socialism to capitalism.
2. That is, formal interpretation and various modes of interpretation, including the formal one.
3. For instance, noninterpretation and interpretation only, or formal interpretation and various modes of interpretation, excluding the formal one.
4. This does not include an analysis of the jurisprudence: analysis of court decisions and statutory regulation is outside the scope of this article.
5. See generally, Dalia Mikeleniene, Valentinas Mikelėnas, Teismo procesas: teisės aiškinimo ir taikymo aspektai (Vilnius: Justitia,
1999) [hereinafter Mikelėnai, Aspektai).
6. See generally, Alfonsas Vaišvila, Teisės teorija (Vilnius: Justitia, 2000), 285-298 [hereinafter Vaišvila, Teorija].
7. See generally, Živilė Liekytė, "Pažodinio, plečiamojo ir siaurinamojo teisės aiškinimo teoriniai ir praktiniai aspektai," Teisė (2001, T. 40), 106-115 [hereinafter Liekytė, "Aspektai"].
8. See generally, Vitas Vasiliauskas, "Teisminio precedento, kaip teisės šaltinio savokos problema: teisminis precedentas kaip nauja teisės norma ar kaip teisės aiškinimo (pletojimo) rezultatas," Teisė (2002, T. 42), 145-151 [hereinafter Vasiliauskas, "Problema"],
9. See generally, Valentinas Mikelėnas, "The Guarantee of the Uniform Interpretation of Law and the Principle of Equality Before Law: Requirements of Legal Certainty," Teisė (2002, T. 44), 71-85. [hereinafter Mikelėnas, "Guarantee"].
10. See generally, Antonin Scalia et al., A Matter of Interpretation (New Jersey: Princeton University Press, 1998).
11. An important fact is that the second (and the first) part of the book was written by Dalia Mikelėnienė and the third part by Valentinas Mikelėnas.
12. See note 5: Mikelėnai, Aspektai, 137.
13. See ibid.
14. For example: "legal argumentation is all linguistic input (with the exception of that dedicated to the ceremonial) of the court process, legal interpretation is only that, which is in relation to the relevant legal norms;" or "legal argumentation involves analysis of questions of fact and questions of law; legal interpretation—only questions of law;" or "legal argumentation involves application of law and legal interpretation."
15. Another example of bewilderment: at the beginning of the third part, Mikelėnas writes that "analysis of the court process as an application of the law would be incomprehensible without a discussion of the problems of legal interpretation" (see ibid.); this presupposes that the second part (and the first part) of the book is mainly about the application of the law, covering legal argumentation, but it apparently is not. In the second part, Dalia Mikelėnienė as often as not, writes about legal interpretation (see e.g. ibid., 76, 89-92, 121). Considering this, it is hardly a mistake to suggest that Mikelėnienė and Mikelėnas were inconsistent in this regard.
16. In one place Mikelėnas writes that in one "aspect legal interpretation is one kind of legal argumentation" (see ibid., 139), in another—that in another aspect legal "interpretation and legal argumentation coincide" (see ibid., 141).
17. See ibid., 140.
18. See ibid., 160.
19. See note 7: Liekytė, "Aspektai," 106.
20. See ibid., 110.
21. See note 9: Mikelėnas, "Guarantee," 76.
22. The situation may be at least partly rectified by further explanation of what is meant by these words, but it is missing. Generally nonsubstantial adjectives are logically adequate, if used in valuing statements, but are not, if used in defining statements.
23. It should be stated that Vaišvila is more logically consistent here; see his definitions of legal interpretation (see note 6: Vaišvila, Teorija, 287) and mode of legal interpretation (see ibid., 288).
24. This aspect is more thoroughly discussed in Part 2 of this article.
25. For example, L. Neville Brown and Tom Kennedy, while discussing the methods of interpretation of the European Court of Justice (ECJ), argue as follows:
Interpretation of law is in no way an exact science but rather a judicial art. ...Writers sometimes refer to "canons of interpretation," but it is better to think in terms of varying approaches: sometimes one approach is preferred, sometimes another, sometimes a combination of several; or one approach may be followed by another as a check upon a result achieved by the first (see Neville L. Brown, Tom Kennedy, The Court of Justice of the European Communities (London: Sweet & Maxwell, 1994), 301.
It is important to note that L. Neville Brown with Tom Kennedy and some other authors (see e.g. Henry G. Schermers, Denis F. Waelbroeck, Judicial Protection in the European Communities (Deventer and Boston: Kluwer Law and Taxation Publishers, 1992) 11-26. traditionally distinguish four methods of legal interpretation of the ECJ: linguistic or literal, historical, contextual or systematic, and Ideological. In this respect, out of two Lithuanian authors, i.e., Mikelėnas and Vaišvila, presenting and discussing the list of the methods of interpretation in their books, Vaišvila is much more akin to this structural pattern. He distinguishes four main methods of iegal interpretation— linguistic, systematic, historical, and logical (see note 6: Vaišvila, Teorija, 289). As we see, only the logical method is not a traditional method of the ECJ (problems with the distinguishing of this method are discussed in Part 5 of this article). On the other hand, Mikelėnas is much more akin to the general understanding of the matter of legal interpretation of such authors as Brown and Kennedy. His unscientific approach is represented by repeating the allegation that a complex of methods should be applied, without any theoretical preference for one or another method (see note 5: Mikelėnai, Aspektai, 211, 218, 224, 230). This reveals the picture of the judge as artist, in every concrete case playing a game of preferences, combinations and check-and-balances. Antonin Scalia here is exactly the opposite: he makes theoretical preference for one method of legal interpretation—i.e., textualism, and demands a "science of statutory interpretation" (see note 10: Scalia, Matter, 14-18).
26. See note 5: Mikelėnai, Aspektai, 166.
27. These aspects are more thoroughly discussed in Parts 4 and 5 of this article.
28. See ibid., p. 170.
29. See ibid., 171.
30. See ibid., 187.
31. Further on, in the discussion about the teleological method, Mikelėnas alleges that "when a collision of linguistic and teleological methods of interpretation of the norm arises and when the aims of the norm (statute) are absolutely clear, priority shall be given to the result of the teleological interpretation of law" (see ibid., 207). Also see ibid., 254.
32. See ibid., 193.
33. This aspect is discussed further in the text.
34. See generally note 9: Mikelenas, "Guarantee." See also note 6: Vaišvila, Teorija, 297-298.
35. This name is used when discussing the methods of ECJ or in Liekytė's article, but in the instances discussed in this case, it has a different meaning with a clear negative aspect.
36. Sometimes other concepts such as jurisprudence (see note 9: Mikelėnas, "Guarantee") or application of statutes (see note 6: Vaišvila, Teorija, 297) are used.
37. See note 9: Mikelėnas, "Guarantee," 76.
38. See note 10: Scalia, Matter, 23-25.
39. See ibid., 24.
40. It could be admitted that there may be rare exceptions to this principle, although Scalia probably would not agree with it. But these are rare exceptions.
41. For example, by looking it up in the most recent dictionary, issued before the adoption of the statute.
42. This could be found, for example, in the opposition of the judge as an interpreter and as a formal applicator of law see note 5: Mikelėnai, Aspektai, 137).
43. See note 10: Scalia, Matter, 25.
44. See note 5: Mikelėnai, Aspektai, 155.
43. This is not the mechanical literalism, discussed above, as the literal method for Liekyte includes linguistic, grammatical and even systematic considerations (see note 7: Liekytė, ,,Aspektai", 108).
46. Mikelėnas, in the same situation, distinguishes two modes of legal interpretation—adequate and creative, the latter including extensive and restrictive (see note 5: Mikelėnai, Aspektai, 257-260). But the analysis of interpretation under such general patterns of understanding is very short and appears at the very end of the Mikelėnai book, almost unincorporated in the context of the book and is logically problematic in some cases: the difference between restrictive interpretation and reduction is inexcusably vague, because the restriction of the meaning is a priori its reduction. Also, the inclusion of extensive and restrictive interpretations under the name creative speaks for itself. It should be noted that Liekytė could also not escape the flaw of using nonsubstantial adjectives (or adverbs) in essentially definitional text (see note 7: Liekytė, "Aspektai," 106). On the anti-sovietism of Liekytė see ibid., 110-1110.
47. See ibid., 107.
48. Although, that should be considered in the light of her anti-sovietism (see ibid., 110-111).
49. See ibid., 108.
50. See ibid., 109.
51. See ibid., 114.
52. An exception may be made in regard to Liekytė.
53. That is especially clear in Part IV of the Mikelėnas article, entitled "Legal Interpretation as a Necessary Prerequisite of Legal Certainty: Mechanical Jurisprudence v. Creative Jurisprudence" (see note 9: Mikelėnas, "Guarantee," 76-78) [Italicized by author of this article]. The title of the part itself conjoins interpretation and creation. This may presuppose a statement or hypothesis about the identity of interpretation and creation—"every interpretation of law is, in fact, creation of law." This, however, is a fundamental philosophical problem and leads to a domain of meaning that is beyond the domain discussed in this article. Mikelėnas clearly does not inquire into that domain of the sameness; he starts not from the sameness, but from the differences of clear and unclear, exact and inexact (see ibid.).
54. The closest examples of such propagation are the texts in sections 3.2.6 "Legal Gaps" and 3.3.3 "Historical Method of Legal Interpretation" in the book by Mikelėnienė and Mikelėnas (see note 5: Mikelenai, Aspektai, 155-160, 202-205), section 1.7 in part IV "Is Legal Interpretation an Act of Legislation?" in Vaišvila book (see note 6: Vaišvila, Teorija, 296-298), Vasiliauskas article (see note 8: Vasiliauskas, "Problema"), and Part IV "Legal Interpretation as a Necessary Prerequisite of Legal Certainty: Mechanical Jurisprudence v. Creative Jurisprudence" in the Mikelėnas article (see note 9: Mikelėnas, "Guarantee," 76-78).
55. See ibid., 76.
56. E.g., see ibid. It is hard to understand how such antonymous concepts as separation and cooperation may mean in some way or other, each other; it is much more likely this is not simply a change of wording, but an essential change of meaning.
57 See Karl R. Popper, The Logic of Scientific Discovery {New York, 1965). Another text that errs in the same way is the Vasiliauskas article, where he states that: "The main aim of the article is an attempt to question the domination of statutes (through the alleged idea of the perfection of law) among the sources of law, and also to try to motivate the right of a judge not only to interpret law but also to create it in some cases" (see note 8: Vasiliauskas, "Problema," 146). [italicized by the author of this article].
58. This is the main principle, if a relevant, but not radical, priority of the doctrine of the separation of powers is chosen, and here the main concept, requiring further explanation, is "possible" (see further in the text).
59. It should be stated that in some places of the main texts we find some initial attempts to balance the doctrines. For example, Mikelėnas in his article asks "[h]ow active must the Supreme Court be? How far can it go when interpreting legal rules adopted by the legislature? How to combine the principle of the separation of powers and the creative role of the Supreme Court?" and writes that "the problems of judicial activism and that of the creative role of courts are not easy to resolve" (see note 9: Mikelėnas, "Guarantee," 72, 77). However, in general, Mikelėnas, Vasiliauskas and Vaišvila disproportionately raise the doctrine of the active court, especially considering the requirements of democracy.
60. See note 8: Vasiliauskas, "Problem," 147.
61. See note 9: Mikelėnas, "Guarantee," 76.
62. See ibid., 78.
63. See ibid., 74-76. These motives are partly reiterated and discussed in the book by Mikelėnai (see note 5: Mikelėnai, Aspektai, 142-163).
64. In other words, is it true that the law created by a judiciary bears language of less ambiguity, indefiniteness, vagueness; that this law is not influenced by the dynamics of social relationships; that it may not be contradictory; not have gaps in it, or is the legislative process of the judiciary more perfect than that of a democratic legislator?
65. See note 9: Mikelėnas, "Guarantee," 75.
66. I.e. part 3.2.1 of the Mikelėnai book (see note 5; Mikelėnai, Aspektai, 143-147).
67. This appellation is especially used in the United States. On the dynamic legal interpretation see also Part 4 of this article.
68. See ibid., 147.
69. See note 10: Scalia, Matter, 40.
70. See ibid., 44-45.
71. Mikelėnas must not be inclined to do so, because he says in another place that "judges who fail to follow their own judgments in previous similar cases act in an unreasonable, unjust and arbitrary way." (see note 10: Mikelėnas, "Guarantee," 79).
72. It should also be added that it does not matter very much that stare decisis is sometimes broken by the judiciary itself. First of all, the judiciary is very anxious when it does or tries to do so (see generally Planned Parenthood of Southeastern PA. v. Casey, 505 US. 833 (1992), which is a sign that stare decisis is a very formal principle, even corresponding to Soviet formalism, and means that even the smallest breaking of the stare decisis in the precedent-based system of law wipes away all boundaries between adjudication and politicking. Secondly, stare decisis, being principally contradictory to the law-changing dynamic interpretation, is an additional and strong stimulus not to pay attention to the changes in social relationships, but only to precedent law, not statutory law, which has no such or similar stimulus. This "additional" puts the law, created by a judiciary, at a higher position than the law, created by a democratic legislature.
73. The related motive to that of the gap of law could be the legislative mistake. The latter, as something separate from the gap of law, is scarcely raised by the main authors discussed in this article; therefore, it will not be separately analyzed here. An analysis of the legislative mistake can be found in Scalia's book, where a mistake of expression and a mistake of legislative wisdom are distinguished (see note 10: Scalia, Matter, 20-21).
74. See Scott Brewer, "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy," Harvard Law Review, No. 109(925), 1996.
75. See note 7: Liekytė, "Aspektai," 114.
76. In other words, we leave everything for the sovereign decision of the judges: they may say that it is a situation where there is no legal ground or, in other words, there is no law to apply; or they may say that it is unjust to leave the case unresolved, call it a legal gap, and resolve the case issuing a new abstract rule.
77. Or, another example, Mikelėnas points out the situation that "reality is always much more complex and multicolored than the legislature imagines" as a factor of a gap of law (see note 9: Mikelėnas, "Guarantee," 75). Do we then have any general criteria for distinguishing what a legislature does not imagine and what it simply does not want to regulate?
78. See Estate of Applebaum v. C.I.R., 724 F.2d 375 (3rd Cir. 1983).
79. See the Civil Code of Lithuania, Article 1.8. Such statutes by their contents are undemocratic, as "legislative power is the power to make laws, not the power to make legislatures" (see note 10: Scalia, Matter, 35); here, an attempt is made to temper its undemocratic nature by the requirement to use analogy or general principles of law in the case of a gap in the law, but it is a failure, because, as was already mentioned, we do not know much about analogy, and there may be no general principle of law to apply or any agreement on what it is.
80. The following articles and texts could be noted: Nijolė Kruopinė, "Dar karta. teisinės terminijos klausimu," Teisės problemos (1998, Nr. 1); Laima Pečkuvienė, "Teisės terminai ir terminų žodynai," Jurisprudencija (2001, t. 21(13)).
81. A similar situation of relevant priority of the doctrine of the separation of powers is expressed by Scalia, stating that "[wjhatever [a legislature] has not itself prescribed is left to be resolved by the executive or (ultimately) the judicial branch. That is the very essence of the separation of powers" (see note 10: Scalia, Matter, 35). It precisely reveals the secondary and even the third-tier role of the judicial branch in legislation.
82. In a broader view, the relevant priority should be given to the creation of law by a democratic legislature, the execution of law by an administration, and the application of law by a judiciary.
83. See Constitution of the Republic of Lithuania, Article 1.
84. There are signs of such processes in Lithuania and other Eastern European countries, where courts, especially constitutional ones, create broadly sweeping legal rules, as, for example, decisions abolishing the death penalty (see note 6: Vaišvila, Teorija, 298; George P. Fletcher, Basic Concepts of Legal Thought (New York, Oxford: Oxford University Press, 1996), 19-26).
85. See note 5: Mikelėnai, Aspektai, 203.
86. See ibid., 204.
87. See ibid., 203.
88. Although the method is often associated with the constitutional interpretations of the supreme court of the United States, it is not always the case (see generally Karen M. Gebbia-Pinetti, "Statutory Interpretation, Democratic Legitimacy and Legal-System Values," Seton Hall Legislative Journal, Vol. 21, No. 2, 1997).
89. See note 5: Mikelėnai, Aspektai, 217-222.
90. See ibid., 218.
91. See ibid.
92. See ibid.
93. See note 25: Neville L. Brown, Tom Kennedy, The Court of Justice, 307.
94. See ibid.; also see note 25: Henry G. Schermers, Denis F. Waelbroeck, Judicial Protection, 15. It should be noted that Mikelėnas writes about travaux preparatories in the context of the method of the intention of the legislator, which, according to him, is concerned about the subjective intention of the legislator, as opposed to the concerns of the historical method of legal interpretation (see note 6: Mikelėnai, Aspektai, 217-222).
95. See note 25: Henry G. Schermers, Denis F, Waelbroeck, Judicial Protection, 15. In fact, it is better to attach consideration of objective intentions to the Ideological interpretation, because another name for objective intentions of the legislator could be the aims of the legislator.
96. See note 6: Vaišvila, Teorija, 291.
97. See ibid.
98. See ibid.
99 .See ibid.
100. Even though, as was already stated in this article, there is still no fixed methodology of legal interpretation, there are tendencies of the evolving criteria for the differentiation of the methods of legal interpretation; these are the criteria that specify (or differentiate) legal interpretation itself in relation to interpretation in general, and these are the criteria of the objectives of interpretation and - the main criteria -sources looked at in the process of interpretation. For example, Karen M Gebbia-Pinetti in her article states that:
The interpretative debate has been complicated by conflicting ways of distinguishing and naming the divergent interpretive methods. This article uses... three categories [of originalism, textualism, and dynamism] because they accurately distinguish the different methodologies employed, particularly in terms of objectives pursued and sources consulted..., and because a consensus seems to be forming around this classification, (see note 88: Karen M. Gebbia-Pinetti, "Statutory Interpretation," 267).
101. These are: linguistic, systematic, historical, teleological, based on precedent, legislative intent, comparative, general principles of law, analogy, and logical methods of legal interpretation (se note 5: Mikelėnai, Aspektai, 170).
102. See note 6: Vaišvila, Teorija, 289.
103. On the methods of legal interpretation distinguished by Vaišvila, see note 25.
104. See note 101.
105. This is very clear in the understanding of the systematic/ contextual interpretation of the ECj. In the Brown and Kennedy book, right after the subsection, called Contextual interpretation, we find a subsection, called Comparative Law as Aid to Interpretation, which begins with the sentence that "[p]art of the context in which Community law operates is its interrelationship with the national laws of the member States" (see note 25: Neville L. Brown, Tom Kennedy, The Court of Justice, 311, 314) [italicized by the author of this article]. This shows that the use of comparison is not understood as a separate method of legal interpretation, but as a part of a contextual (systematic) interpretation. The idea is that the texts we compare are also the context. The same with analogy—in the Schermers and Waelbroeck book we find a subsection, called Systematic Interpretation, Analogy (see note 25: Henry G. Schermers, Denis F. Waelbroeck, Judicial Protection, 16). Although, systematic interpretation and analogy are distinguished in the title of the subsection, there are no signs of differentiation in the analysis presented.
106. See note 5: Mikelėnai, Aspektai, 187.
107. See note 6: Vaišvila, Teorija, 292.
108. See ibid.
109. For example, George P. Fletcher states that "[m]ost Europeans treat judicial decisions as assertions of what the Law really is. ...In the more conventional Anglo-American view of stare decisis...the courts declare what the law is. And because their decisions are the law, they constitute precedents binding on judges and litigants who come after." (see note 84: George P. Fletcher, Basic Concepts, 63).