The article is dedicated to determine de iure and de facto binding force of the case law of the Court of Justice of the European Union (hereinafter the ECJ) and its place in the system of legal sources in Latvia. The author concludes that the case law of the ECJ consists of legally important statements, which are included in judgements of the ECJ, namely, of an interpretation of legal norms, made by the ECJ, and of judge-made law norms, which the (...) ECJ has found in legal system by use of a further law-making. Therefore, it follows from the above that the case law of the ECJ is regarded as binding independent addition legal source in Latvia. This publication concerns not only Latvia, but also other European Union (hereinafter the EU) member states of the continental Europe or Romano-Germanic legal system. (shrink)

The boundary between interpretation and creation of law is sometimes so subtle and intangible that the court judgments may give rise to discussions about judges having taken the role of lawmakers. This article reveals the concept of ‘precedent’ in the Lithuanian legal system as the influence of the common law has increased on the continental law and ideas of stare decisis have been transferred to the Lithuanian legal system. The start for this was a famous judgment of 28 March 2006 (...) by the Constitutional Court of the Republic of Lithuania, where the court held that courts adopting decisions in cases of corresponding categories are bound by their own decisions in analogous cases; the courts of lower instance are bound by the decisions of the courts of higher instance in cases of the same categories. The notion of precedent has been widely used in the decisions of the Supreme Court of Lithuania. Thus, the term “precedent” has become almost as common as ‘judicial decision’. However, it is important to note that in the jurisprudence of Lithuanian courts and legal literature the notion of precedent has a different meaning than in the common law countries. It is, obviously, due to the different principles of the formation of the two systems: the common law and the continental law. (shrink)

The article analyses the problem of using European constitutional heritage in the practice of the Constitutional Court of the Republic of Latvia when interpreting the Constitution of the Republic of Latvia. The author analyses several judgments of the Constitutional Court of Latvia, wherein the Court refers to European legal heritage, when interpreting separate norms of the Constitution of the Republic of Latvia. Such practice is particularly evident in two categories of cases. The influence of European legal heritage is most clearly (...) expressed in cases where the Court ascertains the essence of the continuity doctrine and when interpreting human rights enshrined in the Constitution (the Satversme). The author notes that constitutional courts reveal two tendencies. On the one hand, a constitutional court cannot ignore the international context. European courts are influenced by European Union law and the jurisprudence of the European Court of Justice. On the other hand, constitutional court judges in every country have sworn to be loyal to the national constitution and thus have a duty to exercise constitutional control. These tendencies are not necessarily objectionable. On the contrary–knowledge of the international legal context helps the Constitutional Court exercise its mission. (shrink)

Unwritten constitutional conventions also known as lex non scripta, are under permanent scholarly scrutiny. This does not happen only in the Anglo-Saxon scholarly tradition. When analyzing the issues of unwritten law, a considerable number of representatives of this tradition, starting with W. Blackstone and finishing with contemporary British and American scholars, also talk about the existence of constitutional conventions. It should also be noted that issues pertaining to unwritten law and issues of conventions in particular, are often mentioned and analyzed (...) in the works of scholars of the Roman-Germanic legal tradition. Italian, French, German and Czech scholars take account of constitutional conventions, analyze their features and hold discourse on their future. However, in the course of scholarly debate, the issues of constitutional conventions have been dealt with in a fairly controversial manner. Even though individual scholars recognize constitutional conventions, the variety of opinions and conceptions is too large to form a uniform understanding. (shrink)