Peeters Law · Laboratorium · Working paper
The Supernorm Problem
Good Faith, Premature Characterisation and the Architecture of Legal Assessment
The Supernorm Problem
Good Faith, Premature Characterisation and the Architecture of Legal Assessment
Abstract
The question logically prior to the familiar objections
Legal systems frequently require courts to assess competing legal reasons that cannot be ordered by mechanical rule application alone. One response is to place an open norm above the rules and principles in conflict. Good faith may then cease to operate merely as one norm among others and acquire a more ambitious function: that of an organising, foundational or even supernormative principle through which other norms are related, concretised and developed.
This article examines the conceptual step by which the need for legal assessment is translated into the existence of a norm above the reasons to be assessed. Its argument is not that good faith is unreal, empty or legally dispensable. Those objections have long formed part of the doctrinal debate. The question pursued here is logically prior: does the need to assess competing legal reasons establish the need for a supernorm at all?
The inquiry begins with the Belgian and Dutch debates on objective good faith and reasonableness and fairness, before examining the architecture of Book 5 of the Belgian Civil Code. The new legislation is of particular interest because it accords good faith an expressly important role while simultaneously distributing substantial legal work among differentiated rules concerning interpretation, contractual obligations, abuse of rights, changed circumstances and remedies. The article then treats German, Swiss, French, Dutch, English and Canadian law, together with transnational contract instruments, as experimental variations rather than objects of descriptive comparison.
Only after the problem has been reconstructed is a seven-part analytical framework introduced and itself tested. The method succeeds only if decomposition reveals legally consequential distinctions that supernormative reasoning conceals. It fails if the supernorm performs independent legal work that decomposition cannot reproduce, or if decomposition merely multiplies distinctions without improving the transparency of legal reasoning.
The provisional conclusion is modest. Open-ended assessment is unavoidable. Normative plurality may sometimes require synthesis. But the difficulty of legal judgment is not itself evidence that a norm exists above the reasons from which judgment must be constructed. The need for assessment requires a method of assessment. Without more, it does not establish the need for a supernorm.
KeywordsGood faith; supernorm; contract law; legal reasoning; premature characterisation; open norms; Book 5 Belgian Civil Code; reasonableness and fairness; comparative private law; H7.
I.The question concealed by the answer
Suppose that a manufacturer and a distributor have traded together for fifteen years.
Their written agreement provides that defects must be notified within thirty days. It also contains a clause stating that departures from the contractual terms must be agreed in writing.
Commercial life has been less tidy.
During the relationship, the manufacturer has repeatedly investigated complaints made after the contractual period, replaced defective products, granted allowances and never invoked the thirty-day clause.
In the twelfth year of the relationship, it encourages the distributor to make a substantial investment in a dedicated distribution network. Their correspondence speaks of expansion, continuity and long-term cooperation.
Three years later, defects emerge in a newly introduced product line. Initial customer complaints are scattered and their common technical cause is not immediately apparent. Much of the relevant technical information lies exclusively within the manufacturer's knowledge. The distributor gives formal notice six weeks after the pattern and probable cause have become sufficiently clear.
The manufacturer relies upon the contractual notification period.
The dispute immediately attracts legal reasons pointing in different directions. Contractual autonomy supports enforcement of the written term. Legal certainty may do so too. A prolonged course of dealing raises questions of reliance and consistency. The information asymmetry may affect the allocation of risk. The induced investment may have independent relevance. The relationship itself may generate expectations of cooperation.
A decision must be made.
That proposition is unremarkable.
A further proposition is less self-evident: that, because the reasons in play require assessment, their assessment requires a norm situated above them.
This article is concerned with the distance between those two propositions.
II.The construction of a supernorm
One influential account of good faith begins from the openness of private law. Contractual relationships are not exhausted by rules expressly enacted or obligations expressly promised. Legal assessment also draws upon values, principles and circumstances that have not been reduced to determinate rules.
On this account, good faith operates as the blankonorm to which unwritten law may be attached, and more radically as the grondnorm, the foundational norm through which several legal principles are capable of interacting meaningfully in the production of increasingly refined concrete rules. The account expressly rejects the idea that good faith is merely an additional rule standing beside the others. More specific considerations, including autonomy, the relationship between promised performances, relative advantage and detriment, opportunities for risk shifting, justified expectations, formality, and access to information, do the concrete analytical work, yet remain conceptually understood as concretisations of a norm they cannot exhaust.
That is a sophisticated thesis.
It should not be reduced to the familiar complaint that good faith is vague.
Nor should it be answered by asserting that contracts are governed only by express terms and determinate rules. The underlying diagnosis is serious: legal principles can conflict; factual circumstances matter; contractual interpretation cannot be reduced to literalism; and adjudication must sometimes proceed where no determinate rule resolves the case.
The difficulty arises one step later.
The structure of the reasoning may be represented as follows:
normative plurality
→ conflict
→ need for assessment
→ need for a standpoint above the conflicting reasons
→ foundational norm
→ decision.
The first three steps are readily defensible.
The transition from the third to the fourth requires an argument of its own.
Why does the necessity of assessment entail the existence of a norm above the norms being assessed?
That question differs from the objections already familiar to the literature.
III.Four controversies, and a fifth question
The doctrinal debate has already approached good faith from several directions.
A strong Belgian critique asked whether objective good faith possesses sufficient legal content to warrant its claimed position in positive law at all. It examined its content, its legal force, the authority by which that force is conferred, and its relationship with adjacent doctrines. The critique was not a passing objection to uncertainty. It devoted an entire part of its analysis to the question whether objective good faith was legal reality or juridical myth.
A Dutch response to the Belgian theory concentrated on the architecture of interpretation. It accepted that interpretation may be penetrating and context-sensitive but warned that interpretation can be stretched beyond acceptable proportion when corrective reasoning is forced into interpretative form. The deeper concern was methodological: legal reasoning ought, as far as possible, to remain intelligible and controllable. Even where judgment ultimately requires a leap, the distance of that leap should be reduced through rational explanation.
A later Dutch debate moved along another axis. It asked whether reasonableness and fairness are primarily a standard governing the conduct of parties or a decisional norm addressed to the judge. The literature had already produced descriptions ranging from foundational norm and all-encompassing super-rule to judicial fig leaf, non-norm and even nothing at all. The later account defended the status of reasonableness and fairness as a genuine conduct norm and used that position to reconsider contractual binding force, interpretation, changed circumstances and judicial application.
There are therefore at least four established questions:
What is the content of the open norm?
From where does it derive its legal authority?
Which legal operations may legitimately be performed through it?
Is it primarily a rule of conduct or a rule of decision?
The present inquiry adds a fifth:
Why should the necessity of assessing plural legal reasons be translated into the existence of one norm above them?
That question is not an alternative version of the older objections.
A supernorm may have real legal force and still be analytically redundant.
It may have a recognisable field of operation and still fail to explain how competing reasons should be assessed.
It may genuinely guide conduct while remaining unnecessary as a higher-order account of legal judgment.
The present problem therefore concerns not merely the content of the norm, but the architecture by which the norm acquires its superior position.
IV.Premature characterisation
The central hypothesis of the Laboratory is that supernormative reasoning may involve a form of premature characterisation.
The initial legal problem is epistemic and methodological:
How should competing legal reasons be identified, related and assessed?
The answer is sometimes expressed ontologically:
There exists a higher norm within which those reasons are related and assessed.
The move may be correct.
But it is not logically compelled.
The existence of a task does not establish the existence of an entity performing that task.
A legal system faced with conflicting reasons might respond through:
- local priority rules;
- thresholds;
- presumptions;
- burdens of proof;
- context-specific doctrines;
- differentiated remedies;
- restrictions on the exercise of particular rights;
- explicitly structured proportionality;
- or legal judgment that remains irreducibly evaluative.
To say this is not to deny the possibility of synthesis.
It is to deny its automaticity.
The suspicion is that normative plurality may be characterised too quickly as normative unity, after which the resulting unity is used to explain the plurality from which it was constructed.
The process can become self-confirming:
- heterogeneous legal problems are classified as manifestations of good faith;
- the breadth of those manifestations is taken to demonstrate the ubiquity of good faith;
- that ubiquity supports its status as a foundational norm;
- its status as a foundational norm then justifies classifying further problems as manifestations of good faith.
The category may begin to manufacture the evidence of its own necessity.
Premature characterisation does not merely describe a legal field. It may reorganise the field in a manner that subsequently appears to confirm the characterisation itself.
That possibility deserves testing.
V.Book 5 of the Belgian Civil Code: codification as a natural experiment
The Belgian reform of the law of obligations offers an unusually valuable test.
Book 5 entered into force on 1 January 2023. It gives good faith an explicit and important position within the law of contract. The preparatory materials describe Article 5.73 as a crucial, and in the French version cardinale, provision and state that good faith has at least a supplementary function and a moderating function through the prohibition of abuse of rights.
Yet the architecture of the Book is striking.
Good faith is important, but legal work is not left undifferentiated beneath it.
Article 5.71 deals with the sources of contractual effects and recognises the supplementary role of good faith. Article 5.72 distinguishes obligations of means and obligations of result. Article 5.73 provides expressly for performance in good faith and the prohibition of abuse of contractual rights. Article 5.74 separately regulates changed circumstances through a structured regime with defined conditions, renegotiation and judicial powers. The preparatory works also explain that good faith may not impose obligations incompatible with the nature and scope of the contract.
This creates an intriguing architectural tension.
The Code centralises the language of good faith while decentralising much of the legal work.
The point should not be overstated. Book 5 does not repudiate the theoretical importance of good faith. Indeed, its preparatory materials state the contrary.
The more careful question is whether the structure of the Code differentiates legal operations that might otherwise have been presented as manifestations of one overarching norm.
Article 5.74 is especially instructive.
A change of circumstances could be narrated abstractly as a conflict between binding force and fairness in altered conditions, to be mediated through good faith. Book 5 instead identifies a series of more specific matters: whether performance has become excessively onerous; whether the change was unforeseeable; whether it is attributable to the debtor; whether the risk was assumed; whether renegotiation may be sought; and what powers a court may exercise. The provision thus separates factual threshold, risk allocation, procedure and consequence.
That does not prove the supernorm hypothesis wrong.
It poses a question to it:
Where the law is capable of decomposing a difficult normative conflict into differentiated facts, thresholds, risks, procedures and consequences, what independent work remains for the higher norm?
The question is not rhetorical.
There may be an answer.
Good faith may preserve adaptability between codified categories. It may connect doctrines historically developed in isolation. It may support analogical extension. It may communicate a general standard of relational conduct. It may operate where no differentiated rule yet exists.
But those functions must be demonstrated rather than inferred from the mere fact that difficult judgment remains necessary.
VI.The comparative experiment
Comparative law is particularly vulnerable to premature characterisation.
A search for “good faith” across jurisdictions may falsely suggest that similarly worded provisions perform equivalent work. Conversely, the absence of a general good-faith clause may hide functional equivalents dispersed across other doctrines.
The comparative inquiry should therefore not ask which systems “have” good faith.
It should ask:
How is comparable normative work distributed?
1 · Germany: concentrated openness
Section 242 BGB imposes performance according to Treu und Glauben, with regard to customary practice. The provision's brevity stands in obvious contrast to the extensive doctrinal development associated with it.
An influential comparative account has itself described the German architecture as one in which detailed rules are, in substance, supplemented or overtopped by a super-norm in § 242. The same account contrasts this with legal architectures that organise flexibility through a network of more limited open norms.
Germany therefore presents the strong version of the experiment.
The relevant question is not whether § 242 is important. It plainly is.
The question is:
Does the higher norm itself supply criteria of assessment, or has doctrine been required to develop differentiated sub-doctrines beneath it before courts can decide cases with sufficient precision?
If the latter, the supernorm may still perform important historical, systematic or generative functions. But those functions must be distinguished from the concrete decisional work performed by the subordinate doctrines.
2 · Switzerland: breadth without identical architecture
Article 2 of the Swiss Civil Code requires every person to act in good faith in exercising rights and performing obligations.
The Swiss example prevents an easy equation between textual breadth and supernormativity.
A broadly worded general clause does not necessarily acquire the same doctrinal architecture in every legal system.
The experiment therefore asks:
When does an open clause become a supernorm?
Textual breadth is not enough.
The decisive matter may lie in the relationship between the clause and specific doctrines, the manner in which courts reason from it, the institutional distribution of law-making authority, and the degree to which the clause is treated as the source from which other rules derive.
3 · France: strong legal status, differentiated doctrine
Article 1104 of the French Civil Code provides that contracts must be negotiated, formed and performed in good faith and makes the provision mandatory.
Yet the French Code simultaneously contains numerous specific contractual institutions and distinct doctrinal operations.
France therefore supplies another test:
Can a mandatory and broadly expressed duty of good faith remain one principle within a differentiated architecture rather than becoming the explanatory source of the architecture as a whole?
Again, the answer cannot be read from statutory text alone.
The inquiry concerns the position of the norm, not merely its existence.
4 · The Netherlands: functional multiplication
Dutch law is particularly valuable because the debate itself has been explicit.
Reasonableness and fairness have been analysed as a conduct norm, a decisional norm, a source of supplementation, a restrictive mechanism and a possible foundation of contractual binding force. The doctrinal literature surveyed in the Dutch thesis ranges from descriptions of reasonableness and fairness as a foundational norm or all-encompassing super-rule to the claim that the concept is not a norm at all.
The Dutch variation asks:
Does functional differentiation solve the supernorm problem, or merely distribute the same open formula across several legal operations?
That question matters.
A single expression may conceal several distinct acts of reasoning:
- identifying an obligation;
- interpreting a contract;
- supplementing its content;
- restricting the operation of an otherwise applicable rule;
- changing contractual consequences in exceptional circumstances.
The use of one linguistic formula does not prove that those operations are normatively identical.
5 · England: the negative control
English contract law provides the most obvious negative control.
The UK Supreme Court has stated that English law has no general principle of good faith in contracting, preferring reasoning anchored in established doctrines rather than a generalised good-faith principle.
That makes the English comparison tempting, but dangerous.
One might too quickly conclude that English law proves the dispensability of the supernorm.
It does not.
The proper questions are more difficult:
Does English law perform comparable work through multiple local doctrines?
Are those doctrines more transparent or merely more fragmented?
Does the refusal of a general norm preserve doctrinal precision at the cost of coherence?