“All that is not permitted is forbidden”

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Update:

One of my friends, who is an admirer of the common law and somewhat of a critic of (his understanding of) the civil law, sort of jokingly wrote me “That’s kind of my impression of civil law….”

My response:

Yeah I think you’re confusing one aspect of it with this. The civil law is legal positivist, or more precisely, embodies legislative positivism, ² but that does not imply at all the police state or totalitarian state idea that all which is not permitted is forbidden. Rather it implies that the chief or primary source of law is legislation instead of caselaw (as it used to be in the English common law, and in the Roman law). But that does not mean the legal system defined by statutes is a totalitarian one as opposed to permissive one. A code-legislation based system can have the default presumption of freedom of action just as a common law system can–this is in fact the case in Louisiana, a codal system, where substantively it’s basically the same as the other 49 states and the federal system. I suspect it’s roughly the same in other civil law countries e.g. Latin America and Europe, even though they are codal.

In short, in the Western private law, in the Roman law, and today in the common law and in the continental codal civil law, the default presumption is still a presumption of liberty of action unless there is some express legal prohibition. You can think of that as if we have an ocean of liberty with islands of restrictions. (A somewhat similar metaphor was used by a former law professor of mine, William Crawford, to discuss how Louisiana law is an island, but in a different context.) ³ I.e., there is a presumption of liberty (the title of Randy Barnett’s book, BTW, ⁴ about how best to interpret the Constitution in a pro-liberty way); all life is an ocean of liberty, and you can do anything, perform any action, without needing to find some law (whether in the common law or in a statute or civil code article) to give you permission. That is, unless you can find some law saying you may not do something–you may do it.

That said, see various La. Civil Code articles that also strongly imply this, e.g. such as those below, esp. 1971 and 1968. Note that the state in modern democratic systems has broad “police power” (legislative power) to make things illegal, but still, the presumption is that unless it does, unless there is a prohibition, then the action is not illegal, that is, lawful or permitted. (This is somewhat different in the case of the US Federal Government since it’s unique in not having plenary police or legislative power, unlike all other states in the world.) ⁵

See, for example, the following articles:

Art. 1927. Consent

A contract is formed by the consent of the parties established through offer and acceptance.

Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.

Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

Art. 1906. Definition of contract

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.

Art. 1968. Unlawful cause

The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.

Examples of obligations with unlawful causes include those that arise from gaming, gambling, and wagering not authorized by law.

Art. 1971. Freedom of parties

Parties are free to contract for any object that is lawful, possible, and determined or determinable. ⁶

Art. 1983. Law for the parties; performance in good faith
Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.

Now, the opposite presumption would indeed be the case in totalitarian systems like the USSR, East Germany, North Korea, and those are presumably legislation dominant systems, or even worse, almost lawless in the sense of rule by diktat or decree. In these cases, you can think of liberty as islands in the sea of restrictions.

It may be true that in a legislatively positivitic system you tend to have more legislation and micromanaging so over time the size of the islands of restrictions, so to speak, grows—especially with the rise of special-interest statutes and legislation that are not codal or systematic and which intrude on the sphere of the elegant civil codes which, though being legislated, tended to be elegant restatements of the mostly liberal western private law principles developed in the decentralized Roman law and in customary law of Europe—but the presumption of liberty is still there. And to be fair, in today’s common law systems the rise of legislation and statutory law has also encroached on the domain formerly covered by the private common law. So in both the European continental civil law, which consists of elegant (legislated) codifications, plus an increasing number of inelegant specialized statutes and laws, and in the common law, which consists of common law increasingly augmented by increasing number of inelegant specialized statutes and laws, the islands of prohibitions have increased (same as in the US federal system since the Supreme Court blessed the broad interpretation of the commerce clause as a source of legislative power) and so the sea of liberty is ever encroached on.

But still… the liberal presumption prevails: that which is not forbidden is permitted. As opposed to the opposite presumption in totalitarian systems.

Looking at it this way of course helps illuminate that the modern western societies–including common law ones!—are less and less liberty meaning they more and more resemble totalitarian societies. It is also said that there are so many laws and regulations now–especially at the federal level—that no one can know all the laws, and in fact no one knows how many laws or regulations there are. But this is not the fault of the presumption of liberty, it’s the fault of democracy (see, on this, Hoppe; e.g. his Introduction to Democracy https://hanshoppe.com/democracy/).

As I noted in my book:

“Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). Summarized in “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010)

Moreover, the common law itself, as noted, has been increasingly submerged in a sea of legislation, ever since the rise of the administrative state and democratic law-making in the 20th century. And as noted above, Alan Watson has pointed out that in the past, legislation was used mainly to make the law clearer or more accessible, not to make drastic change or impose a new social order.^[151] This is in contrast to modern democratic law-making—legislation—that has increasingly become the dominant source of law and is used for widespread social engineering.

Hans-Hermann Hoppe has also commented on the relative merits of the English common law versus the European continental and Romanesque civil law:

This is the structure that the initial founding cantons in Switzerland had, where all free men swore an oath that they would come to mutually assist each other in case of an attack against them. And these cities frequently had written law codes, that is, Magdeburg Law or Hamburg Law or Hanover Law or Lübeck Law, etc., so that people who moved to these cities knew what law code would apply to them, and when new cities were founded, the normal thing to do was to adopt one of the already existing law codes and maybe make a few amendments to it. That is, some law codes became the law codes, not just of one city, but of many, many cities, who adopted the initial example of a place that first took the initiative to write these laws down.

In this connection, let me make a little side remark. In English-speaking countries, America and England, there is a certain amount of pride in having the so-called common law, which is, in a way, noncodified law, or case law. The Continental tradition, as you know, has been for a long time different. There, we have had codified law taken from the Romans, especially from the East Romans who had codified this law for the first time in an extensive manner and then, of course, in modern times, the Napoleonic Code, which has been taken over by most Continental European states in one form or another with some modifications. And, as I said, Anglo-Saxons looked down on codified law and hailed their own noncodified common law. I want to just remark that, for instance, Max Weber has a very interesting observation regarding this. He sees the reason for the noncodification of the common law in the self-interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself and go to court himself and point out, here, that this law is written down. So, maybe this excessive pride that the Anglo-Saxons have in their common law might be a little bit overdrawn.^[152]

^[151] Watson, Failures of the Legal Imagination, p. 47 et seq. See also Watson, “The Importance of ‘Nutshells,’” on the significance of both private and legislated codes for the development of law.

^[152] Hans-Hermann Hoppe, Economy, Society, and History (Auburn, Ala.: Mises Institute, 2021; www.hanshoppe.com/esh), p. 111 (based on his lecture “The Production of Law and Order: Natural Order, Feudalism, and Federalism” (2004; https://mises.org/library/6-production-law-and-order-natural-order-feudalism-and-federalism), starting at 1:07:30). See also the quote from Hadley in note 153, below. On the Weber reference, see generally, Max Weber, Max Weber on Law in Economy and Society, edited with introduction and annotations by Max Rheinstein, trans. from Max Weber, Wirtschaft und Gesellschaft, 2d ed. (1924), by Edward Shils & Max Rheinstein (Clarion, 1967); in particular, see Rheinstein, “Introduction,” and chaps. VII and IX. See also note 30, above, regarding one goal of codification efforts being legal certainty.

Moreover, as noted above, the differences between the modern common law and civil law systems are sometimes exaggerated. As one legal scholar notes: “As common law systems become more systematized and civil law systems more focused on jurisprudence as an authoritative source of law, the two systems are coming together more closely than one might guess.” Andrea B. Carroll, “Examining a Comparative Law Myth: Two Hundred Years of Riparian Misconception,” Tul. L. Rev., 80 (2006; https://perma.cc/CEP2-Z2BC): 901–45, at 942, citing, re the systematization of the common law, William D. Hawkland, “The Uniform Commercial Code and the Civil Codes,” La. L. Rev., 56, no. 1 (1995; https://digitalcommons.law.lsu.edu/lalrev/vol56/iss1/6/): 231–47, and, re the increasing focus of the civil law on jurisprudence, Vernon Valentine Palmer, “The French Connection and The Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana Civil Law,” La. L. Rev. 63, no.4 (2003; https://digitalcommons.law.lsu.edu/lalrev/vol63/iss4/11/): 1067–1126, at 1118 n.148.

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Legislative supremacy is announced in the very first articles of the Louisiana Civil Code. Article 1 provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.”^[155]

Yet some scholars note that the Louisiana code is not quite as “rationalistic” or legal positivistic as the French code, since it also admits custom as a source of law and, importantly, also provides: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”^[156]

^[155] See also Herman, The Louisiana Civil Code: A European Legacy for the United States, p. 17; John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 4th ed. (Stanford, California: Stanford University Press, 2018), discussing legislative supremacy in the civil law. N.b.: Louisiana’s civil law is derived in large part from Spanish and Roman sources, though using the French code’s style, organization, and sometimes text as the means to codify this Spanish-Roman law. This, by the way, is a controversial and complicated issue among Louisiana legal scholars; I tend to agree with Pascal and Levasseur, and disagree with Batiza and Herman, as a legal matter, despite disagreeing normatively with Pascal’s opposition to individualism and economic liberalism and despite agreeing with Herman’s more liberal and individualist inclinations. See Robert A. Pascal, “The Louisiana Civil Code: A European Legacy for the United States. By Shael Herman,” La. L. Rev. 54, no. 3 (Jan. 1994; https://digitalcommons.law.lsu.edu/lalrev/vol54/iss3/17/): 827–32; and Alain A. Levasseur, “Grandeur or Mockery?”, Loy. L. Rev. 42, no. 4 (Winter 1997; https://digitalcommons.law.lsu.edu/faculty_scholarship/321/: 647–725.)

^[156] Louisiana Civil Code, art. 4 (emphasis added). See also commentary on this issue by Yiannopoulos and Pascal: A.N. Yiannopoulos, “The Civil Codes of Louisiana,” Civil Law Commentaries 1, no. 1 (Winter 2008; https://perma.cc/59DZ-KGSE): 0–23 (also included in idem, Civil Law System: Louisiana and Comparative Law: A Coursebook: Texts, Cases and Materials, 3d ed. (Baton Rouge, La.: Claitor’s Publishing Division, 2000)); and Pascal’s review of Herman cited previously, both as quoted in Kinsella, “Legislative Positivism and Rationalism in the Louisiana and French Civil Codes,” StephanKinsella.com (April 4, 2023). See also idem, “Logical and Legal Positivism,” StephanKinsella.com (June 23, 2010). Re rationalism, see also note 9, above. The 1804 French Civil Code, in English, may be found at Code Napoleon: or, The French Civil Code (London: William Benning, 1827; https://perma.cc/7CEZ-Q2D5).

“Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).. Summarized in “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010)

​Note that the rule in Art. 5 also supports the general presumption of liberty in the Lousiana civil law  “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

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