Lecture on Good Faith in Civil Law
Dmitry Dozhdev's open lecture on what good faith can be enshrined in and whether this general, but fundamental legal principle should be made more specific
On 16 April 2019, professor Dmitry Dozhdev, the dean of the Law Faculty of the Moscow Higher School of Social and Economic Sciences (Shaninka), gave a lecture as part of a series of open lectures and PhD workshops at the HSE.
The event, supported by its strategic information partner Zakon.ru, was moderated by Kirill Molodyko, a leading research fellow of the HSE-Skolkovo Institute for Law and Development.
The talk was titled “Good Faith in Civil Law.” Professor Dozhdev elaborated on the concept of good faith, its origins and interpretation. Among the questions he answered were how and what good faith can be enshrined in; and whether this general, but fundamental legal principle should be made more specific.
According to the lecturer, good faith transcends any specificity. It is a principle of law, a fundamental objection to abuse and a support for law as an art of justice and goodness. What is needed to apply the hypothesis to an individual case is not a positivist letter of the law, nor a sovereign's order, but a creative effort which lies at the heart of application of law, of its implementation and interpretation. Application of law is always an effort and is always an act of creativity.
During the meeting, the guest also discussed with the audience the specifics of interpretation of law in the continental tradition, the role of judicial discretion and its importance for the exercise of a right. In his view, without the creative work of the court, a right cannot in practice be exercised.
An open norm of good faith is specific in that it does not have an actual composition: the hypothesis is abstract, it becomes specific only through the concretization of the facts of an individual case. Courts have to find a norm for each case. Good faith is not a way to fill in gaps in law, but is in itself the implementation of law. To act in good faith means to act fairly. This principle is ethical, but it converts into a legal one when it becomes universal and binding.
Professor Dozhdev then talked about the legal techniques of applying good faith in their doctrinal understanding. According to Franz Wieacker, whose works Dmitry Dozhdev extensively referred to, court decisions specify an abstract hypothesis when applying a rule of law to a specific case. In addition, some court decisions go beyond the explicit prescriptions of the law and expand the hypothesis of the norm. Rectification of law means rectification of a law and the restoration of justice. Thus, it is possible to go through a code beyond the code — to the perception and expression of the autonomy of the will.
In the view of professor Dozhdev, good faith should be interpreted as a principle — a common starting point which defines the interpretation of all the norms of a code and guides the application of law. Good faith orients the judge towards a search for the right as justice in each specific case, sets objective criteria that allow distinguishing the right from the wrong. In particular, one such criterion could be conformity with the model of a normal (good) agent, one which can be relied upon in this sphere of social interaction.
Professor Dozhdev spoke in detail about the interpretation of the term in various historical periods of the provisions of paragraph 242 of the German Civil Code, answered numerous questions from the audience about legal positivism, judicial discretion, certain aspects of Roman law. In practical terms, Dmitry Dozhdev and the moderator of the discussion, Kirill Molodyko, debated recovery of property from its bona fide purchasers in the context of Russia’s current case law.
According to registration data, PhD students of the HSE Faculty of Law were joined by teachers, researchers, undergraduate and graduate students from various departments of the Higher School of Economics, the Lomonosov Moscow State University, the Russian Presidential Academy of National Economy and Public Administration (RANEPA), the Kutafin Moscow State Law University, the Russian School of Private Law, the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the All-Russian State University of Justice, Russian University of Justice, in-house and private lawyers.