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Freedom and Permission

The Constitutional Concepts of the Freedom of the Individual

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The constitutional freedom of the individual is a specific legal permission to perform certain act-types by virtue of the constitution. Legal and constitutional permissions are either negative permissions, consisting of the lack of obligation or prohibition to perform a conduct, or positive permissions rendering the performance of certain acts possible. Further, a distinction is proposed between legal systems containing their constitution and those not containing their constitution. In the former, constitutional freedom is the freedom to perform any conduct, i.e. any conduct neither obligatory nor prohibited by the law. In legal systems containing their constitution (those recognizing constitutional review) constitutional freedom includes all the act-types obligatorily permitted in the constitution as denominated freedom-rights. The final section contends that the “general right to freedom” is but a special case of the constitutional principle of equality.
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Document Type: Research Article

Publication date: July 1, 2005

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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