Kara Sears
The principle that what is not prohibited is permitted is a concept that has appeared in various legal and literary contexts. In international law, this principle is known as the Lotus principle, stemming from a 1926-1927 case involving a collision between the S.S. Lotus in international waters. The case established the freedom of sovereign states to act as they wished unless bound by voluntary agreements or explicit restrictions in international law. This principle has been referenced and adapted in literature, such as Robert Heinlein's 1940 short story Coventry and T.H. White's 1958 version of The Once and Future King. In the context of statutory interpretation, the principle has been applied to distinguish between statutory corporations, which possess only the powers conferred upon them by statute, and Ministers of the Crown, who may exercise any powers that the Crown can exercise unless precluded by statute. While this principle has been challenged and modified over time, it continues to hold relevance in legal discussions and fictional explorations of authoritarianism.
| Characteristics | Values |
|---|---|
| Name | "What is not prohibited is permitted" |
| Other names | Everything which is not forbidden is allowed; Lotus principle |
| Fields | Law, physics |
| Related laws and cases | Localism Act 2011 (UK); Section 6 of the California Penal Code; Section 775.01 and 775.02 of Florida law |
| Related concepts | Nullapoena sine lege ("no punishment without a prior penal statute"); totalitarian principle |
| Related entities | Sovereign states; statutory corporations; Minister of the Crown; Government Departments |
| Related works | The Once and Future King by T. H. White; "Coventry" by Robert Heinlein; Jack Parsons's essay "Freedom is a Two-Edged Sword"; an unnamed 1956 paper by Gell-Mann |
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What You'll Learn
The Lotus Principle in international law
The Lotus Principle, usually considered a foundation of international law, was established in the Lotus case of 1926-1927. The case involved a collision in international waters between a French vessel and a Turkish vessel, resulting in Turkish victims and a French alleged offender. The Court's decision affirmed the freedom of sovereign states to act as they wished, provided they did not contravene a voluntary agreement or explicit restriction in international law. This principle, also known as the "flag state principle", has been implemented in the United Nations Convention on the Law of the Sea (UNCLOS).
The Lotus Principle embodies the concept that "what is not prohibited is permitted" in international law. This idea contrasts with the previous approach in England, where public authorities were restricted to the powers explicitly granted to them by law. The Lotus case established two key principles. Firstly, it affirmed that a state cannot exercise its jurisdiction outside its territory unless permitted by international treaty or customary law. This territoriality of jurisdiction was emphasised, with the Court stating that a state's power is restricted from extending into another state's territory unless explicitly allowed by international custom or convention.
The second principle of the Lotus Case states that within its territory, a state may exercise its power as it wishes, as long as it does not breach an explicit prohibition. This principle has been applied in various contexts, such as the Kosovo Advisory Opinion, where the Court concluded that the unilateral declaration of independence by Kosovo in 2008 did not violate any applicable rule of international law. Judge Simma criticised this application of the Lotus Principle as outdated and excessively deferential towards state consent.
The Lotus Principle has also been used in arguments against the United States' opposition to the International Criminal Court (ICC). Additionally, it has been adapted in the totalitarian principle in physics, which states, "Everything not forbidden is compulsory." This adaptation highlights a contrasting perspective to the Lotus Principle, indicating that while certain actions may not be prohibited, there may be implicit expectations or requirements.
While the Lotus Principle has been a significant aspect of international law, it is important to recognise that it does not grant sovereign states unlimited freedom. The principle is balanced by the existence of international treaties, customary laws, and explicit restrictions outlined in international law. These factors provide a framework for guiding state actions and ensuring they align with widely accepted norms and standards.
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The Localism Act 2011 in England
The Localism Act 2011 received Royal Assent on 15 November 2011, becoming law in England. The Act gives new freedoms and flexibilities to local government, new rights and powers to communities and individuals, and reforms to make the planning system more democratic and effective, as well as ensuring that decisions about housing are taken locally.
The Act addresses five main subjects: permitted development rights, neighbourhood planning, development orders, community rights, and custom or self-building. Permitted development rights allow changes to land or buildings without applying for planning permission, including, in some cases, erecting new buildings. These rights are derived from general planning permission granted by Parliament, not the local authority. The Act also specifies that the person carrying the planning application has a duty to consult the local community and every person living in the vicinity of the land.
The Localism Act introduces a series of new Community Rights in England. These are permissive powers, where a self-organised neighbourhood can take on various rights, including the right to develop its own plan, bid on excess property, and build community facilities even if not programmed by the local government. These rights are confirmed through local referendums. The Act also allows neighbourhood plans to be developed, but for them to be adopted, they must pass an inspection and a local referendum.
The Act extends the power of all local authorities, from parish and community councils to county councils, to 'do anything that individuals generally may do', as long as that is not limited by some other Act. This means that councils have the same broad powers as an individual to do anything unless it is prohibited by statute. This specifically empowers members to take part in a decision on a matter after previously having expressed views on it, without the risk of the decision being deemed invalid due to bias or predetermination.
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The California Penal Code
The Penal Code is divided into six parts, most of which contain titles, which are further subdivided into chapters, with individual sections comprising the smallest unit of content. Part 5 of the Penal Code, for instance, consists of sections authorizing the California Peace Officers Memorial Foundation to establish and maintain a memorial to peace officers on the grounds of the state Capitol using private funds. Part 6, on the other hand, deals with the management of weapons. Notably, California's drug laws are not found within the Penal Code but in a separate enactment, the California Health and Safety Code. Similarly, provisions affecting motorists, motor vehicles, and traffic matters are contained in the California Vehicle Code.
One of the more controversial sections of the California Penal Code is the consecutive Sections 666 and 667. Section 666, officially known as petty theft with a prior, allows for someone who committed a minor shoplifting crime to be charged with a felony if they had been convicted of any theft-related offense in the past. If the person charged has two previous felony convictions, this can result in a 25-years-to-life sentence under the state's three strikes law, found in Section 667. The inclusion of felony petty theft within the three-strikes law has sparked much debate within and outside the state.
Another notable aspect of the California Penal Code is the misconception around Section 420, commonly but incorrectly believed to be related to marijuana use. In reality, Section 420 addresses obstructing entry on public land.
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Common-law systems
In common-law systems, there is no tradition of a crime being considered a crime only if it violates a penal law. Instead, crimes are defined by court precedent. For instance, in the United States, the only allowable common-law offence is contempt of court, as ruled by the Supreme Court. Common-law systems are typically found in countries that were former British colonies or protectorates, such as the United States.
The principle that "everything not prohibited is permitted" is reflected in the Lotus principle in international law, which established the freedom of sovereign states to act as they wish unless bound by a voluntary agreement or explicit restriction in international law.
In contrast to civil law systems, common-law systems do not have a written constitution based on specific codes. While legislative enactments are considered binding, there is more scope for judge-made law, and previous judicial decisions are often followed.
In the context of the COVID-19 pandemic, the principle of "everything not prohibited is permitted" was challenged in the United Kingdom. Health Secretary Matt Hancock advised Prime Minister Boris Johnson that people should be forbidden from doing anything unless explicitly allowed by law during the lockdown. This approach was described as a departure from British tradition.
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The German legal system
The German court system is made up of trial and appellate courts, which are state courts, and the courts of last resort, which are federal. The federal courts ensure that national law is uniformly applied by the state courts. The highest court is the Federal Court of Justice. There are also four court systems with specialised jurisdiction in administrative, labour, social security, and tax matters.
The German judiciary interprets and applies the law in the country. The judiciary is independent and almost all federal and state actions are subject to judicial review. The system is inquisitorial, where judges actively investigate the facts of the case, rather than an adversarial system, where the judge acts as an impartial referee between the prosecutor and the defendant.
In the German legal system, it is often argued that a particular legal concept must be explicitly stated by a law for it to be applicable. This principle does not extend to prohibiting actions that are not mentioned in the law. For example, the concept of Nebenbesitz (indirect possession of a right by more than one person) is denied by German courts, as the relevant section of the Civil Code does not state that there could be multiple possessors.
German administrative law is based on case law, with an emphasis on the availability of judicial remedies. There is no codification of the principles relied upon in the process of reviewing administrative action; instead, these principles are determined by previous judicial rulings.
English-language resources for researching German law include the German Law Archive (Oxford University), which offers English translations of selected federal statutes and court judgments; the University of Texas at Austin Institute for Transnational Law, which provides access to English translations of selected German court decisions and statutes; and the Gesetze im Internet, a free database of English translations of German codes and statutes.
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Frequently asked questions
The principle is also known as the Lotus principle, named after a collision involving the S.S. Lotus in international waters in the case of 1926–1927.
The Lotus principle 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.
In the United States, there is no law explicitly permitting the wearing of a top hat, but as there is no law against it either, wearing a top hat is permitted by default.
In Germany, the opposite principle applies, so "everything which is not allowed is forbidden".
