Metamorfoza bunelor moravuri
The metamorphosis of good morals

Summary/Abstract: The concept of “good morals”, as captured by Articles 11 and 1.169 of the Civil Code, deserves full attention even in the age of contemporary law. Far from being an obsolete notion that must at best be considered worthy of being absorbed by the super-concept of public policy, it is proving to be a valuable landmark of private law. “Good morals” are the channel of communication between law and public morality, designed to protect the community’s or individual’s capital values, but of general interest, thus proving the “impressive” ability of morality over law, through the power of the judge. In reality, “good morals” differ from public policy in that they imply the import of an extra-legal moral standard of behaviour, which becomes legal thanks to case law, whereas public policy has an endogenous character, whether we are talking about express or positive public policy or virtual public policy (which is to be sought by way of interpretation in the texts of positive law). From the perspective of legal technique, “good morals” constitute a matrix with the function of shaping legal relationships and with a content that varies in time and space. Investigating the evolution of this content over time shows a radical change in the judge’s viewpoint over the last three or four decades: the abandonment of prohibitions on society’s sexual mores and the promotion of new individual and community values centred around the discourse of fundamental rights and a new secular morality of business, where good-faith duty can continue its “second great career”. The conclusion of the presentation below is that the legal notion of “good morals” is a general clause with important legal functions, which should neither be abandoned nor replaced, which is not obsolete because certain components of its content have changed and/or have been replaced by new ones, but is perennial in the function it performs. This function is necessary to survive in order to ensure, in a codified system of law, a necessary flexibility – in the sense of the ability to adapt to new moral requirements.

• Details
• Contents