Good Faith in Public Law

Good Faith in Public Law

23-24 September 2021

Institute of European and Comparative (Online)

Convenors: Philipp Renninger (University of Lucerne), Ewan Smith (Oxford) and Nick Barber (Oxford)

Good faith is a general principle of law. It refers to “a sense of loyalty to, and respect for, the law”; to “the absence of dissimulation, deception and fraud”; and to the “sincere belief that one acts in accordance with the law.”[1]

In many civil law and some common law jurisdictions, good faith is a cornerstone of private law. In certain jurisdictions, good faith is also recognized in public law. For example, a fundamental right of good faith binds the Swiss state to its citizens. In turn some rights are contingent on the duty to act in good faith towards the state.

English law has traditionally rejected good faith as a general principle of private law, though good faith standards abound. Lord Bingham described this patchwork of good faith obligations as “piecemeal solutions … to demonstrated problems of unfairness.”[2]

Like private law, English public law lacks a general doctrine of good faith and fairness.[3] However, English courts have been willing to quash administrative decisions for bad faith since at least Kruse v. Johnson.[4] Bad faith is an explicit component of both Lord Greene’s classic approach to irrationality[5] and Lord Reid’s classic approach to illegality.[6] Connected ideas such as “good administration” and “abuse of power” and the idea that public bodies ought to keep their promises, underpin the law of legitimate expectation.[7]

Good faith is also a feature of UK constitutional law. Last October, two key government law officers resigned because they thought the government’s policy of breaking international agreements in bad faith breached UK constitutional convention. Recent constitutional cases such as Miller v. PM[8] address behaviour that is unconstitutional, in part, because it is disingenuous. Landmark constitutional cases such as Lumba,[9] Corner House,[10] Bancoult,[11] World Development Movement[12] and M v. Home Office[13] arguably confront similar issues.

Our conference explores good faith in public law. Twelve speakers, from ten universities and international institutions will speak on four panels over two days. We begin with the traditional notions of good faith in private law. Simon Whittaker, the editor of Good Faith in European Contract Law, among other works, will begin with an overview of the concept drawing on the law of contract. Solène Rowan will then connect that to the principle of abuse of rights. Finally Talya Sans Ucaryilmaz Deibel (Bilkent) will address good faith as a general principle of law.

The second panel frames good faith in international law. Chris McCrudden (QUB/Michigan) looks at the importance of good faith to the EU Withdrawal Agreement. Bridging from European Law to European Human Rights Law, Zoë Bryanston-Cross (Council of Europe) will look at Good Faith in the context of Art. 46 of the ECHR. José Ignacio Hernández González (Harvard/UCAB) considers good faith as a component of international investment law.

Drawing on these ideas, the second day of our conference is focussed on constitutional and administrative law. Yaniv Roznai (Herzliya) begins with a conceptual approach to bad-faith constitutionalism. Sebastian Heselhaus (Lucerne) approaches good faith as a fundamental rights. ZHAI Han (Wuhan) will comment. Our final panel considers the concept of good faith and fair dealing in Cass Sunstein and Adrian Vermeule's Law and Leviathan. Hasan Dindjer, Sebastian Lewis and Pía Chible will each comment on the book, and Professor Vermeule (Harvard) will respond.

The conference will consider whether Lord Bingham's "piecemeal solutions" braid together into something more substantial. We will consider how EU law, European Human Rights Law and Public International Law have shaped good faith. We will also consider good faith as a general principle, a civil right, and as a human right. We will consider whether this bundle of rights and duties provides a better explanation of artefacts such as legitimate expectations or whether it is better thought of as a simple overarching idea, cast at a high level of generality. By approaching good faith in comparative context, we ask whether a common understanding of good faith connects these various legal orders and cultures, whether we can distil a general principle in supranational and international law, and how that might shape municipal law.

The full programme can be viewed here.

If you are interested in listening, please write an email to philipp.renninger@unilu.ch