Comment: “The end of law is not to abolish or restrain but to preserve and enlarge freedom.” (Locke) (1994)
The sentence is from §57 of John Locke‘s Second Treatise of Government (1689, dated 1690), in the chapter “Of Paternal Power”. Children are governed by parents because they cannot yet know the law of reason; adults who can are free under law, for “where there is no law, there is no freedom”.
What Locke is claiming
- Law as direction, not fetter: law “in its true notion” is “not so much the limitation as the direction of a free and intelligent agent to his proper interest”. A hedge against “bogs and precipices” is hardly confinement.
- Liberty is not licence: freedom is not “a liberty for every man to do what he lists”, but being “free from restraint and violence from others”, which only a common rule secures.
- Freedom from arbitrary will: under government, liberty is “a standing rule to live by” made by the legislature (§22). The enemy of freedom is another’s arbitrary will, not law as such.
- A standard above law: positive law must conform to the law of nature; a statute destroying life, liberty or estate is no true law. Hence limited government, consent and the right of resistance.
Rival views
- Thomas Hobbes (Leviathan, 1651, ch. 21) calls laws “artificial chains”; the subject’s liberty lies in the silence of the law.
- Jeremy Bentham: every law is an infraction of liberty, a necessary evil justified only by utility.
- For both, law and liberty are zero-sum; for Locke, the rule of law is what freedom consists in. Friedrich A. Hayek‘s “liberty under law” (The Constitution of Liberty, 1960) and Philip Pettit‘s freedom as non-domination (1997) descend from him.
The Indian illustration
Article 21 permits deprivation of life or liberty only by “procedure established by law”. A. K. Gopalan (1950) accepted any enacted procedure, which is Hobbesian positivism. Maneka Gandhi v. Union of India (1978) demanded a procedure “right and just and fair”, not “arbitrary, fanciful or oppressive”: law must pass a test of reason to count as law. The rule of law is part of the basic structure (Indira Nehru Gandhi v. Raj Narain, 1975), and K. S. Puttaswamy (2017) added proportionality. Liberty has thus grown into privacy, dignity and livelihood.
Critiques
- Marxist: the “free and intelligent agent” is the property-owner, and Locke’s law guards estate first. Anatole France mocked the law’s “majestic equality” forbidding rich and poor alike to sleep under bridges.
- Negative liberty: Isaiah Berlin (Two Concepts of Liberty, 1958) warned that once law is called the guide to one’s “true” interest, coercion can be passed off as freedom.
- Feminist: Carole Pateman (The Sexual Contract, 1988) notes that Locke leaves the husband’s conjugal power standing, outside the law that frees.
- Practice: sedition and preventive-detention laws restrain far more than they enlarge.
Conclusion
The critics show when law fails its end, not that Locke misstated it. His claim is normative: freedom needs law, and law must answer to reason, consent and equal standing. Read “law” as Locke meant it, as more than whatever the state commands, and the claim stands; Maneka Gandhi made that reading Indian constitutional law.