Ulf Linderfalk (Lund University Faculty of Law) and Henrique Marcos (Maastricht University) have posted Good Faith in an Era of Mistrust: The Significance of Good Faith for the Application of Secondary Rules of International Law on SSRN. Here is the abstract:
As this article argues, the significance of the principle of good faith in international law extends beyond the application of primary rules. It informs also the application of secondary rules. Drawing on Hart’s distinction between primary and secondary rules, the article traces the operation of good faith across rules of change, adjudication, and recognition. It demonstrates that judiciaries consistently invoke good faith when determining whether legal powers have been validly exercised, whether procedural entitlements serve proper purposes, and whether conduct crosses the threshold into legally operative effect. To explain this pattern, the article applies Habermas’s theory of communicative action. It proposes that good faith functions as a validity claim capturing a two-fold presupposition: that international lawmakers act to make themselves understood, and that they act for purposes beyond understanding itself. Good faith is thus a constitutive condition of legal communication—without it, no lawmakers’ act can function as reason-giving contributions.
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