The Irreducibility of Permissions in Legal Reasoning

• Applicant: Professor Vitaly Ogleznev, Ph.D.
• Subject Area: Principles of Law and Jurisprudence
• Term: since 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 530955097

Permissive norms have not been very popular among logicians and legal scholars because there is no agreement on the need for a notion of permission distinct from the notion of obligation. Many believe that permissive norms do not have an independent status and could be derived from prohibitions; therefore, they recognize only one type of norm, namely mandatory norms, that is, norms that establish obligations or prohibitions. The tendency to reject permissive norms as unimportant is at least in part rooted in the understanding of norms as prescriptions or instructions to behave in a certain way. The difference between permissive norms and mandatory norms is very clear: A mandatory norm excludes some actions and thus is incompatible with a permissive one. Permissive norms are also, in a broad sense, prescriptive, that is, nondescriptive, although they do not prescribe an action as mandatory norms do. Permissive norms are normatively significant; they contribute to the structure of the legal system by determining the normative status of actions regulated by this system, even though to a significant extent. The present work is a study of the types of permissions and the roles played by permissive norms in a legal system. The project seeks to challenge five major ideas of understanding (and misunderstanding) permissions and permissive norms as the following: a distinction between negative (weak) and positive (strong) permissions; a distinction between explicit, implicit, and tacit permissions; an interdefinability of permission and obligation; a presupposition of an obligation by a permission; and the different ways to negate a permission. Challenging these five ideas along with the proposed objections will provide a novel and more accurate picture of legal significance of permissive norms. This concerns especially what focusing on prohibition and considering of a permission as parasitic upon prohibition leaves the understanding of permission in a less satisfactory state. Permissions cannot be reduced to prohibitions and permissive norms are an important and independent kind of norm in legal systems. Although, among logicians and legal theorists, it is common to define a permission as an absence of prohibition. It is not clear if there is no norm permitting p in system S, how one can know that something is permitted, that is, there is a permission to do p. The disambiguation of permission will allow proving the thesis that permission should not be reducible to merely an absence of prohibition. This can be accomplished by stressing the usefulness of permissive norms in understanding the limits of the spheres of what is permitted and what is prohibited. This idea, in turn, will allow proving the thesis that a permission has its own normative value (for a legal system as well as for individuals) not reducing to prohibition.

• DFG Programme: WBP Position