Everything which is not forbidden is allowed

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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. The general power of competence operates in most states and societies[dubious ] as it is much easier to specify what cannot be done, than listing what can be done.[citation needed]

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 [de] 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[edit]

Germany[edit]

In discussion of German Law, an argument often found is that a juristic construction is not applicable since the law doesn't state its existence – even if the law doesn't 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 Bürgerliches Gesetzbuch, which defines indirect possession, doesn't say there could be two people possessing. However, the German constitution Art. 2(1) of the GG protects the general freedom to act (Allgemeine Handlungsfreiheit), as demonstrated e.g. by the judgment of the Bundesverfassungsgericht known as “Reiten im Walde” (BVerfGE 80, 137).[5]

United Kingdom[edit]

In the United Kingdom, the Ram Doctrine is a 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.[6]

The doctrine is also mentioned in Halsbury's Laws of England (though not explicitly by name)[7] and The Cabinet Manual.[8]

In R v Secretary of State for Health, ex p C,[9] it was found that despite the fact the Department of Health (as it was then known) that 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[edit]

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 epidemic[edit]

In March 2021 in response to the Coronavirus disease 2019 the Health Secretary Matt Hancock reportedly advised the 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 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] Whilst 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 and 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[edit]

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

International law[edit]

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 1926–7 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[edit]

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[edit]

References[edit]

  1. ^ Gordon Slynn (Lord Slynn of Hadley), Mads Tønnesson Andenæs, Duncan Fairgrieve (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN 9789041113788{{citation}}: CS1 maint: multiple names: authors list (link)
  2. ^ Glanville Williams, "The Concept of Legal Liberty," Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019) Citizenship ISBN 9780262537797, page 159.
  3. ^ Laws, Sir John (October 2, 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 (October 29, 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. ^ David P. Currie (1994), "Separation of powers", The Constitution of the Federal Republic of Germany, University of Chicago Press, pp. 123–4, ISBN 9780226131139
  6. ^ "Eighth Report of Session 2007-08" (PDF). Joint Committee on Statutory Instruments. 1 February 2008. Retrieved 14th August 2020. Page 16.
  7. ^ Halsbury's Laws of England. Vol. 8 (4th reissue ed.). Butterworths. Para. 101.
  8. ^ "The Cabinet Manual" (PDF). 2011. p. 24.
  9. ^ [2000] 1 FLR 627
  10. ^ a b "House of Lords - The pre-emption of Parliament - Constitution Committee". publications.parliament.uk. Retrieved 2020-08-14.
  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. ^ a b d'Ancona, Matthew (June 19, 2020). "Sick man: the transcript". Tortoise.
  14. ^ "Coronavirus Act 2020".
  15. ^ "Legislation.gov.uk".{{cite web}}: CS1 maint: url-status (link)
  16. ^ "Adam Wagner | Doughty Street Chambers". www.doughtystreet.co.uk.
  17. ^ "The risk of eternal lockdown". UnHerd. 2021-02-08. Retrieved 2021-02-10.
  18. ^ "Cambridge Freshfields Lecture 27 October 2020" (PDF).{{cite web}}: CS1 maint: url-status (link)
  19. ^ An Hertogen (12 February 2016), "Letting Lotus Bloom", European Journal of International Law, 26 (4): 901–926, doi:10.1093/ejil/chv072
  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, ISBN 978-0-595-26462-9