By Ekaterina Handa
Law and permissiveness are habitually cast as adversaries, with one signifying restraint and the other an unbounded liberty. A closer scrutiny, however, reveals them not as antagonistic forces but as two faces of a single currency, each drawing its definition and functional significance from the other.
To speak of law is inescapably to speak of permissiveness, because every legal prohibition traces—and with unmistakable precision—the frontier between the forbidden and the freely permitted. Without law, permissiveness would dissolve into an empty abstraction, and without a protected sphere of liberty, law would be indistinguishable from tyranny.
The foundational maxim of liberal legalism, that “everything which is not forbidden is allowed,” captures this dynamic with laudable precision. Enshrined in Article 5 of the French Declaration of the Rights of Man and of the Citizen (1789), the principle stipulates that the law may forbid only actions harmful to society and that nothing not forbidden may be prevented.
Permissiveness, to many may emerge as the vast residual domain left untouched by explicit statutory command. Far from smothering liberty, the law delineates a secure space of free action by marking out only what must not be done, and in so doing it gives liberty a tangible and reliable edifice. Without law’s clarion prohibitions, the realm of the permissible would unravel into a fog of uncertainty haunted by the spectre of arbitrary interference.
John Locke captured this symbiosis with seminal clarity. In his Second Treatise of Government (1690), he argued that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.” That argument is informed by the conviction that liberty is not licence but the condition of being free from the restraint and violence of others. Locke perceived that the permissiveness an individual enjoys depends entirely upon the law’s capacity to fence off the intrusive impulses of others. Law and permissiveness are therefore minted in the same stroke. Indeed, the more reliably law restrains wrongful interference, the wider genuine permissiveness is available to all.
The Hobbesian imagination reinforces this insight from a different vantage point. In the ungoverned state of nature, Thomas Hobbes observed, that every person possesses a boundless right to everything. As Hobbes viewed it, that is a state of absolute permissiveness that is technically untenable.
The social contract, by instituting law and a commitment to enforce it, recasts that wild liberty into civil liberty. Law, therefore, does not destroy permissiveness. Instead it transmutes it into a viable and durable currency, converting the anarchic liberty of the jungle into the structured freedoms of civil society.
Permissiveness is not a vacuum left by absent regulation but an actively constructed social good, coterminous with the law’s authoritative settlement of boundaries. Law and permissiveness therefore remain two faces of a single currency. Where one of the two delimits the other liberates but both are valueless in isolation.
Enduring wisdom in dealing with the organic confluence between law and permissiveness lies in holding the two in a dynamic and intelligent equilibrium. Such equilibrium should always recognise that every prohibition, rightly drawn, is simultaneously an enlargement of the sphere of authentic freedom that humanity deserves.
A social order that overlooks the symbiosis of law and permissiveness risks sliding into a tangled babel.
Handa is an Advocate of the High Court.
