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https://doi.org/10.3935/zpfz.69.56.03
Is All That Is Not Prohibited Really Always and Everywhere Permitted? An Attempt at a Legal-Theoretical Causerie
Zoran Pokrovac
; Faculty of Law, University of Split, Split, Croatia
Abstract
Both laymen and lawyers often invoke the argument that everything which is not prohibited is permitted. The Supreme Court of the Republic of Croatia elevates that “rule” to the rank of a basic principle: “The basic principle is that all that is not prohibited is permitted” (emphasis by Z.P.). In assessing the constitutionality of the pertinent Supreme Court judgment, the Constitutional Court concludes that: “[…] the competent courts [...] provided serious, relevant and sufficient reasons for their decisions, or that they explained their legal positions in a manner which leaves no room for doubt as to the arbitrariness of action and decision-making”. At least in this regard the legislator seems to be clear: “Any economic activity that is not prohibited by law is permitted” (Art. 2/3, Crafts Act). Laymen are not falling behind either. There are numerous examples of naive and lightly made argumentation, among both lawyers and laymen, that everything which is not prohibited is permitted.
Already Aristotle warned about the possible contradiction between order and prohibition, and the history of their conceptual relation is long and complicated.
All legal behaviour, according to Cossio, is marked by preventability and, because of its coexistentiality, either permitted or not permitted. Given the freedom or innumerable possibilities of shared behaviour, it follows that “all those innumerable possibilities which are not normatively prohibited are legally permitted by the necessity of mere existence” (Visković). This is precisely the “axiom of freedom, which dominates the legal system” and which is not of a “logical, but of an ontological, existential nature” (ib.). I have argued that only in modern legal systems any concrete action whose (non)permissibility is disputed can become the subject of adjudication and that the courts are, as a rule, obliged and free to make the final decision on the dispute. Before a final court decision, all concrete behaviour is potentially permitted and potentially not permitted, i.e. there exists uncertainty regarding its (non)permissibility. Because of the inability to legally prohibit or permit innumerable possibilities of action before judicial control, it does not follow, logically or existentially, that they are permitted or prohibited. Were we to realistically reformulate the principle that everything which is not prohibited is permitted, it would run as follows: any concrete action which has not been subject to judicial control can be judicially controlled and can be prohibited or permitted; every concrete action which has been the subject of judicial control, and was not prohibited, is permitted. However, the principle thus reformulated is not historically universal either.
Keywords
principle that all which is not prohibited is permitted; uncertainty; judicial control; subjective right
Hrčak ID:
233800
URI
Publication date:
31.1.2020.
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