2.3. Permission and principles. Constitutional freedoms
Besides permission referring to natural actions and to the exercise of normative powers, the law knows a third type of permissive sentences: constitutional freedoms which, in our view, require separate treatment.
As we saw in the contexts of Ross, von Wright, and Alchourron and Bulygin, it can be tempting to regard constitutional permissions as equivalent to prohibitions of interference addressed to the legislator and, in general, to lower-ranking authorities. But this reduction is not acceptable. It is, of course, true that prohibitions to the legislator and, in general, to lower-ranking authorities are derived from constitutional permissions; but the constitutional permissive sentence is located, so to speak, on a higher justificatory level. In order to justify these assertions, we will again use an example, consisting in two provisions of the Spanish Constitution:1) "It is the task of the public powers to promote the conditions necessary for the liberty and equality of individuals and of the groups to which they belong to be real and effective; to remove the obstacles that prevent or hinder their full effectiveness; and to facilitate the participation of all citizens in political, economic, cultural and social life" (art. 9.2).
2) "The following rights are recognized and protected: a) Freely to express and diffuse ideas and opinions orally, in writing, or through any other means of reproduction [...] d) Freely to communicate or receive truthful information by any means of distribution" (art. 20.1).
As will easily be granted, the content of article 20.1 can be paraphrased (at least partially) as follows: 'It is permitted to express or not to express, and to diffuse or not to diffuse, any idea, opinion or truthful information'.
In ch. I, we argued that the special characteristic of legal principles — as opposed to rules — is the open configuration of their conditions of application.
Accordingly, we now paraphrase article 20.1 in the following form: 'Unless in a specific (generic or individual) case there are applicable principles commanding otherwise which, in that case, have higher weight, it is permitted to express or not to express, and to diffuse or not to diffuse, any idea, opinion or truthful information.' Now, the question is whether this formulation (which we will call E}) is equivalent to the following (E2): 'Unless in a specific (generic or individual) case there are applicable principles commanding otherwise which, in that case, have higher weight, it is prohibited to the legislator and, in general, to all public powers to impose obligations or prohibitions concerning behaviour consisting in expressing or not expressing, and diffusing or not diffusing, any idea, opinion or truthful information, to hinder that behaviour, or to impose sanctions as a consequence of such behaviour.' In our opinion, the two formulations are not equivalent, for the simple reason that the first (E/) more directly expresses the value that can serve as a justificatory foundation for the second (E2), while the inverse is not true. It makes perfect sense to say that the Spanish Constitution regards the freedom of expression and diffusion of ideas, opinions, etc. as something valuable and therefore imposes on the public powers the prohibition to interfere with it (unless there are principles applicable and of higher weight in the respective case that command otherwise and thus justify the intervention). In contrast, it does not seem to make much sense to say that the Spanish Constitution regards interference by the public powers with the expression and diffusion of ideas, opinions, etc. as a disvalue and, therefore, permits their free expression and diffusion. This means that E{ presupposes that there are reasons that justify the freedom of expression (and, therefore, also justify the prohibition of interfering with it). Thus, the answer to the question 'Why can I express my opinions freely, and why may nobody hinder me from doing so?' or 'Why may the legislator not issue a norm containing restrictions of that freedom?' cannot simply be to invoke Ef. it must also include a reference to a value judgment of the type '1 may freely express my opinions because freedom of expression in itself is something valuable, since it is an essential component of personal autonomy and political democracy'.In Carlos Nino's categories,[53] a constitutional permission does not simply express a prescription — a directive —, but also a value judgment.12 To this one could object that, if the difference between value judgments and prescriptions basically consists in the fact that issuing a value judgment means to express that there are reasons supporting it, then it seems to be almost a contradiction to speak of a value judgment issued by an act of authority. In our opinion, however, that objection can be countered if one considers the following: In the case of prescriptions, the act of an authority is of a constitutive character; there are prescriptions because there are acts of prescribing performed by authorities. Authorities, however, cannot create values but only recognize them.
Constitutional permissive sentences, besides, are 'translated', in the sphere of directive norms, not only into mandatory principles, but also into policies. This can be clearly seen if article 20.1 is linked to article 9.2. From their combination, one can derive a sentence (E3) like the following: 'The public powers must adopt the appropriate measures so that all individuals, and the groups they belong to, have real and effective possibilities to express and diffuse their ideas, opinions, etc.' In our opinion, while E2 expresses a principle in the strict sense — ordering public powers to abstain from any type of conduct that would constitute an interference with the freedom of expression, in all cases where that principle prevails over principles pointing in the opposite direction —, E3 expresses a policy or program norm.
In contrast to principles in the strict sense, these norms do not command or prohibit any particular type of conduct. They only indicate that it is obligatory to pursue certain ends, certain states of affairs; but they leave it to the discretion of their addressees (for our purpose, to the discretion of the legislator and, in general, of the public powers) to choose the appropriate means. Thus, while the principle that prohibits interference with free expression constitutes a constraint for the objectives that can be pursued through the legislative and more generally through the political process, the policy commanding to pursue the end that individuals and groups have the real possibility to express themselves stipulates an objective the legislator and, in general, those who participate in the political process cannot (legitimately) not want, but it leaves open the question of what means are best suited to attain that goal.
More on the topic 2.3. Permission and principles. Constitutional freedoms:
- 3 The Constitutional Context of English Law
- Appendix 1 Extracts From the European Convention on Human Rights and Fundamental Freedoms
- 5 The Protection of Human Rights and Fundamental Freedoms
- 1.3. Weak and strong permission in Alchourron and Bulygin
- 2.2. Permission and the exercise of normative powers
- Rights of appeal and permission to appeal in the English courts
- 2.1. Permission and the regulation of 'natural' conduct
- 1. Permission in contemporary legal theory
- Principles in legal reasoning
- Principles in legal explanations
- Principles and rules as reasons for action