AUTHORS SPEAKING: Radosveta Vassileva about her publication Bulgarian Private Law at Crossroads.
Bulgarian private law has a fascinating heritage with influences from both Western and Eastern Europe. What does it mean?
I often compare Bulgarian private law to a vibrant patchwork because it is the result of miscellaneous influences unexpectedly sewn together with Bulgarian creativity spanning over a century and a half. The aftermath of this overzealous creativity is a messy landscape of ideas, which may be deemed incompatible at first glance – a landscape that is unlikely to have a precise equivalent elsewhere. Moreover, foreign jurists may be interested to learn that historical periods that are seemingly unrelated because of their divergences in values have had a palpable impact on Bulgarian legislation in private law that is in force today.
In particular, since the inception of Bulgarian private law in the 19th century, subjectively ‘mixing and matching’ principles from jurisdictions as diverse as Italy, Spain, Romania, Russia, Austria-Hungary, etc., without much concern for coherence, was the main way to advance the law. This necessitated the development of various gap-filling mechanisms to address lacunae and inconstancies – for instance, from early on, judges were vested with lawmaking powers.
The modus operandi of sewing together patches that do not seem well-matched at first persisted during communism. For example, through my archival and comparative research, I have shown that contrary to myths spread by Bulgarian scholars that the Law on Obligations and Contracts (LOC) of 1950, which is still in force, is an original Bulgarian creation, it is heavily based on the sections on obligations of the original version of the Italian Civil Code of 1942. In an ironic twist, Bulgarian legislators cosmetically infused Italian law with communist ideology. After the fall of communism in 1989, Bulgarian legislators chose to work with the same LOC. While reforming it, they sought inspiration not only in Bulgarian legislation prior to communism but also in the contemporary laws of both East and West European jurisdictions. In this way, they sew on further patches.
What lessons can we learn from Bulgarian private law?
Because of its complex heritage and the radical shifts in ideological values it has experienced, Bulgarian private law may inform long-standing debates in comparative law. First, it may challenge the traditional taxonomies of comparative law. Both the classical theory of legal families as well as more modern attempts for comparative taxonomies usually place Bulgarian and Italian law in different groups. However, as I already explained, the Bulgarian law of obligations is largely inspired by the Italian law of obligations. In turn, why this similarity went unnoticed for so long raises the question of how politically biased comparative taxonomies and comparative research may be.
The study of Bulgarian private law may also enrich our understanding of the common law-civil law divide. Today, both the Bulgarian Supreme Court of Cassation and the Bulgarian Supreme Administrative Court may hand down binding decisions and decrees on interpretation which do not concern concrete disputes, but questions of principle. These lawmaking powers of the Bulgarian judge, which are an inherent feature of the Bulgarian legal system, but which solidified during communism, challenge the stereotypical role attributed to the continental judge.
Research into Bulgarian private law may also showcase the importance of context in legal development, including the persistence of legal culture even in the face of radical paradigmatic shifts. For instance, communism did not manage to erase the relationship between Bulgarian and Italian law, which had flourished before 1944 – this is largely due to the hidden ways of rebellion of legal scholars who are the traditional drafters of legislation. Ironically, today we observe resistance in the opposite direction – Bulgarian judges are tempted to look to literature from communism when applying contemporary legislation. One of the examples I discuss in the book is how the Bulgarian Supreme Court of Cassation defined the principle of ‘good morals’ by borrowing the definition of the ‘rules of socialist coexistence’ – a peculiar doctrine reflecting socialist morality which existed in the LOC during communism – from a textbook on socialist civil law.
Could you put it in the context of the European Union?
We should not forget that the harmonisation project in the field of private law was conceived when the EU was much smaller – that is why a significant part of the literature dedicated to the difficulties of such harmonisation is focused on the divides between the so-called parent jurisdictions. To this end, Bulgarian law may illustrate what peculiar paths newly introduced principles may take – in the book, for instance, I explain how Bulgarian judges often ignore case law by the Court of Justice of the European Union and venture into Bulgarian legal theory when interpreting the Unfair Terms Directive. Exploring such practices and the factors that condition them may inform more targeted strategies aimed at mitigating differences in interpretation between the various EU member states.
The book highlights the transformations of the right to property, why this is so fascinating?
The Bulgarian case demonstrates that property law is the branch of private law which is the most prone to politicisation. The radical shifts in ideological values embraced by Bulgaria required the re-invention of the discipline twice in the past century. In turn, this discipline illustrates most clearly the damage which communism inflicted on Bulgarian society, and may serve as a warning to those who are advocating for the reconsideration of the traditional public/private divide in property in view of grappling with the current economic crisis.
A historical overview of the evolution of the notion of the right to property in Bulgaria shows how the country went from one extreme to another. After the Liberation from the Ottoman Empire in 1878, Bulgaria recognised the inviolability of property in its first Constitution of 1879 – unconditional ownership was a cardinal value for the young Bulgarian State, which wanted to depart radically from the feudal conception of property in the Ottoman Empire.
Communism initially severely curtailed the right to private property through violent policies, such as confiscation, nationalisation, and collectivisation – while the first purported to punish those singled out as enemies of the communist regime, the latter two aimed at transforming private property, including the means of production, into people’s property in line with Marxist-Leninist ideology. The culmination of the attack against private property was the enactment of Bulgaria’s Constitution of 1971 which denied the right to private property altogether. My book discusses both the peculiar theoretical underpinning of this reform, such as the notion of ‘hierarchy of property’ which proclaimed state property as ‘the highest form of property’, and its practical dimension – citizens, for example, confronted rigid requirements regarding how much space in housing they were entitled to use.
After the end of communism, Bulgarian legislators attempted to restore some normality, only to realise that this was extremely difficult. The country reinstated the concept of the ‘inviolability of private property’ in its democratic Constitution of 1991 and embarked on a painful journey of restituting the property rights to those wronged by communism. Bulgaria is known to have adopted the most radical approach among East European countries because, in the name of historic justice, it prioritised the restitution of the actual land plots and/or immovable property that had been taken away, instead of financial compensation. This caused a plethora of disputes which have flooded the European Court of Human Rights and have demonstrated how difficult it is to strike a fair balance between the interests of all concerned parties.
How is Bulgarian private law prepared to tackle the challenges of the 21st century?
In the book, there is an entire chapter dedicated to the readiness of Bulgarian private law to adequately tackle the challenges of the 21st century. First, I reflect upon the necessity and modalities of law reform in view of the current truly untidy state of Bulgarian private law – Bulgaria is among the few continental jurisdictions that has never had a civil code. While I put forward concrete proposals about what could be changed in legislation to achieve better coherence, I also argue that any reform should consider Bulgaria’s legal cultural idiosyncrasies, including the particular role of scholars and judges in advancing the law. One should be aware that any principle borrowed from abroad will start living a Bulgarian life. Thus, instead of looking into successful foreign models, the reform should build on the solutions that have gained solid ground in Bulgarian case law and doctrinal writing.
The chapter also examines whether Bulgarian private law can help address challenges which are traditionally resolved in the domain of public law, such as the digitalisation of trade, reducing environmental pollution, and promoting human rights. Sadly, my conclusions are negative – legislative sloppiness, legal cultural particularities, and the grave state of the economy limit the potential of Bulgarian private law. Finally, I also consider whether Bulgarian private law disposes of tools to address supervening events, such as the COVID-19 pandemic. While, indeed, Bulgarian contract law has a heavier arsenal of tools promoting substantive fairness compared to many other jurisdictions, their criteria of application make them helpful only in limited cases.
RADOSVETA VASSILEVA is a Visiting Research Fellow at Middlesex University (UK). Her research interests encompass comparative private and public law, and EU law. She holds a PhD in Law from University College London (UK), where she also served as a Teaching Fellow. She earned a Master's degree in Economic Law from Sciences Po Paris (France), a Master's degree in Global Business Law from Universite de Paris 1 Pantheon-Sorbonne (France), and a Bachelor of Arts in International Relations from Tufts University (USA).
About the book
|This book examines the fascinating and turbulent development of Bulgarian private law from the end of the 19th century to the present day and highlights its particularities from a comparative perspective.