Everything which is not forbidden is allowed

"Everything which is not forbidden is allowed" is a constitutional principle found in the English common law. In international law, it is known as the Lotus principle, after a collision of the S.S. Lotus in international waters.

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

Local authorities

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.[1] The restrictions on local authorities were lifted by the Localism Act 2011 which granted a "general power of competence" to local authorities.[2] In the US, similar restrictions on municipal authorities apply as a consequence of Dillon's Rule.

Lotus principle
Main article: Lotus case

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.[3]

Totalitarian principle

In the novel The Once and Future King, author T. H. White proposed a similarly worded rule as the rule of totalitarianism: "Everything which is not forbidden is compulsory."[4]

White's saying has been used to state the Gell-Mann's totalitarian principle in physics.[5]

National traditions

The 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".[6]

German law

The saying about the Germans is at least partially true. 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).[7]

See also

References
  1. Laws, John (2000). "The rule of reason – an international perspective". In Andenas, Mads; Fairgrieve, Duncan (eds.). Judicial Review in International Perspective. 2. Kluwer Law International. p. 256. ISBN 978-90-411-1378-8.
  2. The General Power of Competence (PDF), Local Government Association, London, 2013
  3. An Hertogen (12 February 2016), "Letting Lotus Bloom", European Journal of International Law, 26 (4): 901–926, doi:10.1093/ejil/chv072
  4. T. H. White, The Sword in the Stone (book 1 of The Once and Future King), Collins (1938)
  5. 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.
  6. Melanie Hawthorne; Sylvie Saillet (2003), A Practical Guide to French Business, ISBN 978-0-595-26462-9
  7. David P. Currie (1994), "Separation of powers", The Constitution of the Federal Republic of Germany, University of Chicago Press, pp. 123–4, ISBN 9780226131139
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