Everything which is not forbidden is allowed

Last updated

A cartoon in Hugo Gernsback's Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy Verboten cartoon Electrical Experimenter Feb 1919.png
A cartoon in Hugo Gernsback's Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy

"Everything which is not forbidden is allowed" is a legal maxim. It is the concept that any action can be taken unless there is a law against it. [1] [2] It is also known in some situations as the "general power of competence" whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action.

Contents

The opposite principle "everything which is not allowed is forbidden" states that an action can only be taken if it is specifically allowed.

A senior English judge, Sir John Laws, stated the principles as: "For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden." [3] Legal philosopher Ota Weinberger put it this way: "In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed". [4]

Domestic law

Czech Republic

The Czech constitution, Article 2, paragraphs 2 and 3, respectively read [5] :

(2) The power of the state serves all citizens and can be only applied in cases, under limitations and trough uses specified by a law. (3) Every citizen can do anything that is not forbidden by the law, and noone can be forced to do anything that is not required by a law.

The same principles are reiterated in the Czech Bill of Rights, Article 2.

Germany

In discussion of German law, an argument often found is that a juristic construction is not applicable since the law does not state its existence – even if the law does not explicitly state that the construction does not exist. An example for this is the Nebenbesitz (indirect possession of a right by more than one person), which is denied by German courts with the argument that §868 of the Civil Code, which defines indirect possession, does not say there could be two people possessing. However, the German constitution Art. 2(1) protects the general freedom to act (Allgemeine Handlungsfreiheit), as demonstrated e.g. by the judgment of the Federal Constitutional Court known as Reiten im Walde (BVerfGE 80, 137; lit. "riding in the forest"). [6]

United Kingdom

In the United Kingdom, the Ram Doctrine is a former constitutional doctrine based upon a 1945 memorandum by Granville Ram. Part of it reads:

A Minister of the Crown is not in the same position as a statutory corporation. A statutory corporation (whether constituted by a special statute as, for instance, a railway company is, or constituted under the Companies Acts as in the case of an ordinary company) is entirely a creature of statute and has no powers except those conferred upon it by or under statute, but a Minister of the Crown, even though there may have been a statute authorising his appointment, is not a creature of statute and may, as an agent of the Crown, exercise any powers which the Crown has power to exercise, except so far as he is precluded from doing so by statute. In other words, in the case of a Government Department, one must look at the statutes to see what it may not do, not as in the case of a company to see what it may do. [7]

The doctrine is also mentioned in Halsbury's Laws of England (though not explicitly by name) [8] and the Cabinet Manual. [9]

In R v Secretary of State for Health, ex parte C [2000] 1 FLR 627, it was found that, despite the fact that the Department of Health (as it was then known) had no statutory authority to maintain an unpublished but consulted (by employers in the child care field) database, it was not unlawful for it do so.

De Smith's Judicial Review is critical of the doctrine [10] and a 2013 House of Lords Constitution Committee report suggests that Ram's memorandum is not an accurate depiction of the law today and that the phrase "the Ram doctrine" is inaccurate and should no longer be used. [10]

Local authorities in England

The converse principle—"everything which is not allowed is forbidden"—used to apply to public authorities in England, whose actions were limited to the powers explicitly granted to them by law. [11] The restrictions on local authorities were lifted by the Localism Act 2011 which granted a "general power of competence" to local authorities. [12]

Coronavirus pandemic

In March 2021, in response to coronavirus disease 2019, Health Secretary Matt Hancock reportedly advised Prime Minister Boris Johnson in the following terms: "We've got to tell people that they can't do anything unless it is explicitly allowed by law." [13] This advice has been described as a "radical suggestion", and Hancock himself reportedly described it as Napoleonic, "flipping" British tradition, because in lockdown people would be forbidden from doing anything unless the legislation said, in terms, that they could. [13] While the foregoing is merely reported, the Coronavirus Act 2020 [14] and hundreds of pieces of subordinate legislation made pursuant to that Act [15] prima facie abrogated the principle in the United Kingdom. This has been confirmed by other writers including Adam Wagner, [16] a barrister specialising in human rights and public law. [17] Lord Sumption, a former judge of the Supreme Court, stated in a lecture given on 27 October 2020 that "The ease with which people could be terrorized into surrendering basic freedoms which are fundamental to our existence as social beings came as a shock to me in March 2020". [18]

United States

In the US, similar restrictions on municipal authorities apply as a consequence of Dillon's rule.

International law

In international law, the principle is known as the Lotus principle, after a collision of the S.S. Lotus in international waters. The Lotus case of 1926–1927 established the freedom of sovereign states to act as they wished, unless they chose to bind themselves by a voluntary agreement or there was an explicit restriction in international law. [19]

Derived principles and sayings

The totalitarian principle in physics adapts the phrase to read: "Everything not forbidden is compulsory." [20]

The Robert Heinlein 1940 short story "Coventry" uses a similar phrase to describe an authoritarian state: "Anything not compulsory was forbidden". [21] The 1958 version of T. H. White's The Once and Future King describes the slogan of an ant-hill as being "Everything not forbidden is compulsory". [22]

A jocular saying is that, in England, "everything which is not forbidden is allowed", while in Germany, the opposite applies, so "everything which is not allowed is forbidden". This may be extended to France—"everything is allowed even if it is forbidden". [23]

See also

Related Research Articles

<span class="mw-page-title-main">Constitutional law</span> An area of law that deals with interpretation and implementation of the Constitution

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.

<span class="mw-page-title-main">Constitution of the Netherlands</span> Basic law of the Netherlands

The Constitution of the Kingdom of the Netherlands is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the Kingdom of the Netherlands. It is generally seen as directly derived from the one issued in 1815, constituting a constitutional monarchy; it is the third oldest constitution still in use worldwide. A revision in 1848 instituted a system of parliamentary democracy. In 1983, the most recent major revision of the Constitution of the Netherlands was undertaken, almost fully rewriting the text and adding new civil rights.

<span class="mw-page-title-main">Law of the Republic of Ireland</span> Constitutional, statute and common laws of Ireland

The law of the Republic of Ireland consists of constitutional, statutory, and common law. The highest law in the State is the Constitution of Ireland, from which all other law derives its authority. The Republic has a common-law legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system, albeit with a popularly elected president, a separation of powers, a developed system of constitutional rights and judicial review of primary legislation.

The implied bill of rights is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government. The theory was never adopted in a majority decision of the Supreme Court of Canada, and was rejected by the court in 1978. The enactment and interpretation of the statutory Bill of Rights, and later the constitutional Charter of Rights and Freedoms, provided alternative formulations of the limits applicable to civil liberties.

<span class="mw-page-title-main">Constitution of the Czech Republic</span>

The Constitution of the Czech Republic is the supreme law of the Czech Republic. The current constitution was adopted by the Czech National Council on 16 December 1992. It entered into force on 1 January 1993, replacing the 1960 Constitution of Czechoslovakia and the constitutional act No. 143/1968 Col., when Czechoslovakia gave way to the Slovak Republic and the Czech Republic in a peaceful dissolution.

The doctrine of nondelegation is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural separation of powers. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.

Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited to be exercised by an organ of government, nor given by law to any other organ of government. Such powers, as well as a general power of competence, nevertheless may exist because it is impractical to detail in legislation every act allowed to be carried out by the state.

<i>Ultra vires</i> Legal concept meaning powers are exceeded

Ultra vires is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is intra vires. Acts that are intra vires may equivalently be termed "valid", and those that are ultra vires termed "invalid".

Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis ; a conservative approach to standing and a reluctance to grant certiorari; and a tendency to deliver narrowly tailored verdicts, avoiding "unnecessary resolution of broad questions."

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning. But in many cases, there is some ambiguity in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that "no delegated powers can be further delegated". Alternatively, it can be stated delegatus non potest delegare.

In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. This is because constitutionally permissible activity may not be chilled because of a statute's vagueness. There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions. A law can also be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion.

<span class="mw-page-title-main">Judicial review in the United States</span> Power of courts to review laws

In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.

The Carltona doctrine expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. The point was established in Carltona Ltd v Commissioners of Works.

<span class="mw-page-title-main">Judicial review</span> Ability of courts to review actions by executive and legislatures

Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Fettering of discretion by a public authority is one of the grounds of judicial review in Singapore administrative law. It is regarded as a form of illegality. An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body. If the High Court finds that a decision-maker has fettered its discretion, it may hold the decision to be ultra vires – beyond the decision-maker's powers – and grant the applicant a suitable remedy such as a quashing order to invalidate the decision.

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

<span class="mw-page-title-main">Judicial review in South Africa</span>

The South African judiciary has broad powers of judicial review under the Constitution of South Africa. Courts are empowered to pronounce on the legality and constitutionality of exercises of public power, including administrative action, executive action, and the passage of acts of Parliament. Though informed by the common law principles that guided judicial review during the apartheid era, contemporary judicial review is authorised by and grounded in constitutional principles. In the case of administrative action, it is also codified in the Promotion of Administrative Justice Act, 2000.

Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

References

  1. ↑ Slynn, Gordon; Andenæs, Mads Tønnesson; Fairgrieve, Duncan (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN   9789041113788
  2. ↑ Glanville Williams, "The Concept of Legal Liberty", Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019), Citizenship, ISBN   9780262537797, p. 159.
  3. ↑ Laws, John (2 October 2017). "The Rule of Law: The Presumption of Liberty and Justice". Judicial Review. 22 (4): 365–373. doi:10.1080/10854681.2017.1407068. S2CID   158167115 – via Taylor and Francis+NEJM.
  4. ↑ Weinberger, Ota (29 October 1988). "The Role of Rules". Ratio Juris. 1 (3): 224–240. doi:10.1111/j.1467-9337.1988.tb00016.x – via Wiley Online Library.
  5. ↑ "Constitution of the Czech Republic".
  6. ↑ Currie, David P. (1994), "Separation of powers", The Constitution of the Federal Republic of Germany, University of Chicago Press, pp. 123–4, ISBN   9780226131139
  7. ↑ "Eighth Report of Session 2007-08" (PDF). Joint Committee on Statutory Instruments. 1 February 2008. Retrieved 14 August 2020. Page 16.
  8. ↑ Halsbury's Laws of England. Vol. 8 (4th reissue ed.). Butterworths. Para. 101.
  9. ↑ "The Cabinet Manual" (PDF). 2011. p. 24.
  10. 1 2 "House of Lords – The pre-emption of Parliament – Constitution Committee". publications.parliament.uk. Retrieved 14 August 2020.
  11. ↑ Laws, John (2000). "The rule of reason – an international perspective". In Andenas, Mads; Fairgrieve, Duncan (eds.). Judicial Review in International Perspective. Vol. 2. Kluwer Law International. p. 256. ISBN   978-90-411-1378-8.
  12. ↑ The General Power of Competence (PDF), Local Government Association, London, 2013
  13. 1 2 d'Ancona, Matthew (19 June 2020). "Sick man: the transcript". Tortoise.
  14. ↑ "Coronavirus Act 2020".
  15. ↑ "Legislation.gov.uk".
  16. ↑ "Adam Wagner". Doughty Street Chambers. 12 June 2023.
  17. ↑ "The risk of eternal lockdown". UnHerd. 8 February 2021. Retrieved 10 February 2021.
  18. ↑ "Cambridge Freshfields Lecture 27 October 2020" (PDF). Cambridge University.
  19. ↑ Hertogen, An (12 February 2016). "Letting Lotus Bloom". European Journal of International Law. 26 (4): 901–926. doi: 10.1093/ejil/chv072 . hdl: 2292/33950 .
  20. ↑ Stephen Weinberg, "Einstein's Mistakes", in Donald Goldsmith and Marcia Bartusiak (eds.), E: His Life, His Thought and His Influence on Our Culture, Sterling Publishing (2006) p. 312.
  21. ↑ Anthologized in Robert A. Heinlein, The Past Through Tomorrow, Berkley Medallion mass-market paperback edition, 1967, p. 600. "The state was thought of as a single organism with a single head, a single brain, and a single purpose. Anything not compulsory was forbidden.."
  22. ↑ White, T.H. (1996). The Once and Future King (Reprint ed.). Ace Trade. p.  121. ISBN   978-0441003839. The passage describes an ant-hill from the point of view of an ant: "The fortress was entered by tunnels in the rock, and, over the entrance to each tunnel, there was a notice which said: EVERYTHING NOT FORBIDDEN IS COMPULSORY." This passage does not appear in the 1938 and 1939 editions of The Sword and the Stone, but only in the 1958 revision incorporated into The Once and Future King.
  23. ↑ Melanie Hawthorne; Sylvie Saillet (2003), A Practical Guide to French Business, Writers Club Press, ISBN   978-0-595-26462-9
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.