This blog post examines the logic of commands, prohibitions, and permissions as it varies with the closedness and openness of legal systems, exploring the structural causes of how normative analysis defines and weakens human freedom.
Law is the official social norm that guides and evaluates human behavior. This guidance through law is achieved via normative modes such as command, prohibition, and permission. A command requires an action to be performed, while a prohibition forbids an action. Permission allows an action to be performed or not performed; the former is typically called positive permission, and the latter, negative permission.
The research achievements of 19th-century analytical jurisprudence demonstrate that these normative modes are connected by specific semantic and logical relationships. According to this, a command is the negation of passive permission but implies active permission, while a prohibition is the negation of active permission but implies passive permission. Passive permission does not imply prohibition, and active permission does not imply command. Furthermore, passive and active permission neither exclude nor imply each other. These four normative modes encompass all cases of behavioral guidance.
Analysis of the interrelationships among these normative modes finds its practical significance primarily at the level of legislative technique. That is, such analysis provides principles that must be adhered to for the clear and systematic establishment of law, or that must be considered to prevent legal excess. Examples include: if one provision of law permits refraining from a certain act, another provision must not command that act; or, the method of permitting an act need not necessarily be commanding that act.
Some question whether this analysis accurately reflects legal phenomena. While it may hold in a closed legal system, it does not apply in an open one. For instance, within an open legal system, what is not prohibited cannot automatically be deemed permitted; thus, the proposition that positive permission negates prohibition does not hold. For instance, two shipwrecked individuals clinging to a plank of wood barely large enough to support one person cannot be said to be permitted to push each other off to their deaths simply because the act of saving oneself is not prohibited.
Furthermore, such an analysis, by presupposing a closed legal system, could be criticized for ultimately weakening the meaning of human freedom. In an open legal system, a distinct realm of human activity free from law itself may exist. However, within a closed legal system, human freedom merely signifies a state where passive permission and active permission coexist simultaneously—a state where neither command nor prohibition exists. Thus, human freedom becomes merely a reflexive benefit occasionally enjoyed thanks to the lax silence of the law, incapable of being a right possessing normative weight.
However, the following counterarguments can be presented against such critiques. First, the existence of cases like the preceding example does not necessitate acknowledging the openness of the legal system. While pushing someone to their death is not permitted, it can be argued that such an act, being unavoidable for self-preservation, is not subject to blame. Even outside the paradoxical space between prohibition and permission, mourning for the dead and consolation for the living can coexist. Furthermore, if we cannot assert that what is not prohibited is automatically permitted, this would be akin to allowing capricious laws to intrude at any time, inevitably leading to a significant degradation in the quality of freedom enjoyed by humans.
Although there is a limitation in that recognizing only logical, binary choices may hinder flexible adaptation to changing realities and risk defending unjust legal states, the rigor pursued by 19th-century analytical jurisprudence can be evaluated as having contributed to proactively securing the realm of freedom by discerning and actively eliminating or supplementing the contradictions and concealed flaws inherent in traditional law. Furthermore, such rigor can hold significance even at the level of judicial control. It serves as a reminder that judgments must adhere faithfully to the letter of the law, countering attempts to issue arbitrary rulings contrary to explicit provisions under the pretext of considering the so-called appropriateness of the outcome.
