Constitutional foundations for the coordination of receipted and national Lithuanian law in 1918-1920

ENThe research object of this study is the provisions of the Provisional Constitutions of 1918, 1919 and 1920 concerning the establishment of the Lithuanian legal system. The aim of the study was to determine what was the basis for the reception of foreign law and the particularism of the law, what law was recepted and what was the relationship between it and the newly created national law. The main methods used are systematic, teleological, historical, linguistic, and comparative. This article presents an original vision of recepted law and a critical assessment of the interwar Lithuanian governmental decision to completely eliminate recepted law. In the authors’ opinion, law reception and particularism enshrined in the Provisional Constitutions met the expectations of the citizens, and the government’s ambition to completely eliminate recepted law in all areas of people’s activities in the intensive development of the national law was in line with the strategic interests of the state and society. Particularism was a natural expression of pluralism inherent in the Western legal tradition and had a great potential for the development of Lithuanian law, which was not exploited due to the negative appreciation of particularism and the attempt to eliminate it completely.Acts issued by the Russian authorities in 1914-1915 and by the German authorities in 1915-1918 restricted the rights of Lithuanian residents, severely restricted monetary and property relations, made it difficult to rebuild the country’s economy, providing for repressive or restrictive measures against the citizens of hostile states. The restored state of Lithuania endeavoured to establish peaceful relations with all states, including those with whom Russia and Germany were at war. Cancelling the law imposed by the Russian and German authorities during the war was a reasonable and useful decision of the Lithuanian State authorities. The interpretation of the constitutional provision «[laws] which existed before the war» as «which existed before August 1, 1914», common in the historical legal literature of Lithuania, is incorrect. The question what laws were recepted has to be addressed not by the date of the adoption o a certain act, but by its content – insofar it is linked or unrelated to the First World War. All acts by which the Russian Empire intervened or were preparing to intervene in this war shall be considered to be excluded from the legal system of the restored State of Lithuania in the sense of the constitutional norm «[laws] which existed before the war» and the general spirit of this Constitution.The system of constitutional control entrenched in the Provisional Constitutions, where a court or an executive authority verified the compliance of a recepted law with the Constitution before applying it is subject to criticism from the standpoint of contemporary legal science, but under the conditions of Lithuania of 1918-1920, it was flexible, fast, allowing citizens to raise the issue of the constitutionality of the law and present their arguments. Key words: Legal history; Lithuanian Provisional Constitutions; law reception; particularism of law; Western legal tradition; legal pluralism; public law; private law. [From the publication]

• Asmens ūkinės veiklos laisvės konstituciniai pagrindai Lietuvoje : ekonominės, istorinės ir lyginamosios įžvalgos : disertacija / Agnė Juškevičiūtė-Vilienė. Vilnius, 2017. 1 pdf (424 p.).
• Kai kurios pirmųjų Lietuvos konstitucijų istoriografijos problemos / Mindaugas Maksimaitis. Jurisprudencija. 2002, Nr. 30 (22), p. 182-190.
• Lietuvos konstitucionalizmo istorija : (istorinė Lietuvos konstitucija) : 1387 m. - 1566 m. - 1791 m. - 1990 m. / Lina Griškevič, Jevgenij Machovenko, Jurgita Paužaitė-Kulvinskienė, Vaidotas A. Vaičaitis. Vilnius : Vilniaus universiteto leidykla, 2016. 276 p.
• Lietuvos teisės šaltiniai 1918-1940 metais / Mindaugas Maksimaitis. Vilnius : Justitia, 2001. 199 p.
• Lietuvos valstybės konstitucijų istorija : XX a. pirmoji pusė / Mindaugas Maksimaitis. Vilnius : Justitia, 2005. 391 p.
• Mažoji konstituanta : Lietuvos taryba atkuriant valstybingumą / Mindaugas Maksimaitis. Vilnius : Justitia, 2011. 431 p.