Social Sciences in China (Chinese Edition)

No.4, 2014

 

The Essence of That “What the Law Does Not Forbid, It Allows” in the Sense of Private Law

(Abstract)

 

Yi Jun

 

The precise meaning of “What the law does not forbid, it allows” is that an actor shall enjoy complete freedom so long as he does not commit any wrongdoing that infringes on the legitimate private domain of others that is forbidden by law. This principle seeks to declare that all domains remaining after deduction of that which is prohibited are the realm of freedom; it thus highlights the freedom’s character as a “deduction right” covering everything remaining after the deduction of prohibitions, thus creating the maximum space for autonomy. At the micro-level, this mainly applies to circumstances such as a self-regarding act involving the actor only or consenting acts not involving a third party. Where legislation on prohibitions is insufficient and the behavior concerned offends public order and morals even though it does not violate any interdiction, as well in fields where the legalist model operates, the application of this proposition is restricted. At the macro-level, it is vague and general, and cannot alone serve as an efficacious guarantee of personal autonomy of will. Only by retaining such qualities of an injunction as generality, independence of objectives, procedure or form and the bottom line can this proposition really establish the maximum domain of autonomy.