The Methodological Significance of Werner Maihofer’s “legitimate expectation” Category for the Judicial Practice of the Supreme Court

Abstract


 
 
 The article is devoted to the analysis of the actual judicial practice of the Supreme Court regarding the interpretation and application of the concept of “legitimate expectations.” For the purpose of a detailed analysis of this institute, the scope of its application by the Supreme Court is conditionally divided by the author into three separate blocks: 1) regarding the protection of property rights − reasonable expectations as a component of the concept of “property;” 2) regarding the proper implementation of their own competence by subjects of authority; and 3) regarding the good faith and reasonable behavior of equal participants in legal relations. It has been established that each of these blocks has an excellent understanding of the idea of legitimate expectations, the order and conditions of its application by the Court. Two polar positions of the Court are followed: if in one case the Court satisfies the claim, recognizing that legitimate expectations are violated, referring to their rootedness in the very essence of the legal relationship (i.e. regardless of the legal norm), then in the other case − it refuses to satisfy the claim due to the lack of normative consolidation of the right or interest, for which such an expectation could arise. The author substantiates the statement that the inconsistency of the Supreme Court, the inconsistency of its positions regarding the application of the concept of legitimate expectations is largely due to the lack of an appropriate doctrinal foundation. The idea of “reasonable”/“natural”/“legitimate” expectations proposed by the existentialist legal philosopher Werner Maihofer (1918–2009) could, in the author’s opinion, become this doctrinal core and contribute to the unification of the understanding of the category of legitimate expectation in judicial practice. A separate aspect of the research was the clarification of the presence/absence of connections between the modern judicial interpretation of the concept of “legitimate expectations” and its doctrinal interpretation − the views of Maihofer and establishing the possibility of applying the ideas of the German philosopher of law for the doctrinal justification of the institution of legitimate expectations within those limits and at preservation of those contents which are necessary and sufficient for effective legal protection. In the investigation proposed by the author, the need to take into account in the judicial practice of the Supreme Court the arguments of the German philosopher of law regarding legality and the need to protect such an expectation that arose as a result of established and desirable or permissible behavior in the social community, which, however, is not supported by a legislative norm. Moreover, the application of such an approach should be the basis of all positions of the Court in which we are talking about legitimate expectations, regardless of whether such expectations arose on the basis of an existing right or interest, or a potential, “future” right, or related they are related to the powerful activity of authorized subjects, or arose on the basis of private law relations, etc.