Understanding Mandatory and Permissive Rules in Law
Standards: Mandatory and Permissive Rules
According to von Wright, the character of a standard depends on whether it states that certain actions or activities must be done, should not be done, or can be made.
Ban may be mandatory, permissive, or optional. Each has its corresponding deontic modalities, which are obligation, prohibition, and permission.
Indeed, the law consists of two basic types of rules:
Mandatory rules that impose obligations to do (obligations in the strict sense) or not do (prohibitions). In the first case, one speaks of positive imperatives or precepts, and in the second of negative imperatives or precepts.
Permissive or optional rules that confer powers, faculties, or rights (the so-called “subjective rights”)—private or public.
The real systems contain rules that impose obligations (positive provisions) and rules establishing prohibitions (negative precepts). Criminal laws are almost always prohibitive rules (e.g., “do not kill”) and also include obligation rules present in positive jurisdictions, such as rules that impose the obligation to pay taxes.
Permissive Rules
The law also includes rules that confer powers, faculties, authorities, or rights. Permissive rules are constitutional rules that recognize fundamental freedoms (freedom of ideology, religion and worship, freedom of choice of residence and movement, freedom of expression, rights of assembly and demonstration). Regarding permission, a multitude of behaviors result from the mere absence of a rule, in accordance with the postulate that “whatever is not prohibited, nor mandatory, is permitted.” Permissive rules may include permissions to do (positive permissions) and not to do (negative permissions). It is often said that permissive rules do no more than repeal, limit, or derogate from a peremptory norm (of obligation or prohibition). Thus, positive permission (to do) would be the denial of a ban, while negative permissions (not to do) would be the actual denial of an obligation.
Contents: Abstract and Concrete Rules
Abstract Rules do not relate to specific actions but to categories or classes of actions (e.g., the payment of taxes, the provision of food to relatives, murder, forgery of documents, the deposit, the term…) while concrete standards refer to specific actions. Legal rules are often abstract, while failures are usually specific statements.
The Condition of Application: The Legal Framework and Hypothetical Standards
Circumstances that must exist for there to be an opportunity for the content of the standard. According to their status of implementation, the rules are classified into categorical and hypothetical.
Categorical: Those rules whose conditions of application arise only from the same content. For example, “closed door” is categorical, as it does not provide application conditions that are inferred from the same content.
They hypothesize that these rules further implement preventive conditions that are inferred from their contents. Example: “If it rains, close the door.” This rule provides that an action should be executed if a certain condition is met. Generally, all the rules enforced by sanctions are hypothetical.
The Kinds of Rules Under the Authority
Within the rules, we distinguish between laws strictly, decree laws, legislative decrees, and regulations.
Legal Subjects: General Rules and Particular Rules
Legal rules can be general, addressing all subjects in one class (e.g., buyers, sellers, age) and not to individual(s). Special rules target a specific subject. Legal rules are usually broad and general. Typical cases of individual rules are set in judgments or administrative acts.
The requirement of general legal norms is due to the principles of justice.
The Occasion: The Territorial and Temporal Scope of Application of the Rules
The location in space-time must satisfy the content of the standard.
Depending on the occasion:
- Supranational standards (e.g., European Community law)
- State laws that apply throughout the territory of a state
- Enacted in a specific autonomous community (CCAA)
Depending on the temporal occasion: The temporal scope of application of legal rules begins with their entry into force until they are repealed.
The Enactment: Written and Customary Rules