Victor Gourevitch, ed.: Rousseau: The Social Contract and Other Writings. Cambridge: Cambridge University Press, 2012 [1997].
Hilail Gildin: Rousseau’s Social Contract: The Design of the Argument. Chicago: The University of Chicago Press, 1983.
Rousseau’s taste for the glittering paradox (“Man was born free, and everywhere he is in chains”) has fascinated and frustrated his readers from the beginning. In seeking “the design of the argument” of what Rousseau calls his “small treatise,” Hilail Gildin quotes the philosopher’s reply to the complaints: “There are still more readers who ought to learn how to read than authors who ought to learn how to be consistent” (112). Gildin shows his own readers how to find the way through Of the Social Contract. His six chapters exhibit all due concision: “I sometimes found that the same point arose more than once in the course of the argument,” he writes. “The repetition has been permitted to remain when it serves to clarify the point” (vii). Some of these near-circular paths lead to the center while other near-circular paths lead to dead ends. Gildin keeps his readers on their way to the center while noting the dead ends.
One of Rousseau’s shortest paths leads to the blank wall of modern ‘radicalism.’ According to those who camp in its shade, Rousseau celebrates ‘nature’ and calls for the unimpeded expression (speech alone would be too restrictive) of the ‘general will,’ that is, the uninhibited desires of ‘the people.’ Gildin discards this bean sprout of a sentiment in his first chapter; in doing so, he follows the beginning of Rousseau’s book itself. In his frontispiece, Rousseau quotes a line from Vergil’s Aeneid. The Romans have conquered the Latiums, and Latinus, their king, hopes for a settlement: “Let us declare the fair laws of a compact” (Aeneid XI, ll. 321 ff.). The Trojan general, Aeneus, wants none of that, and goes on to found Rome. As Gildin observes, Latinus claims that his people have been “living righteously without coercion or laws”—a condition reminiscent of “one of the happiest periods in the state of nature, as Rousseau speaks of it in the Discourse on Inequality” (4). Although Rousseau claims “I do not know” how human inequality arose, only how to “make it legitimate,” he does have some idea of how it might have happened, and the vaporings of subsequent mis-readers of Rousseau have ignored his concerns to their peril. Gildin pulls sharply on the leash Rousseau has placed around the stiff necks of readers who don’t know how to read: “Rousseau does not promise to show men how to win release from their political bonds and regain their original freedom. He promises to show them how their chains can be made legitimate. Whether men are rulers or ruled, legitimate slavery is the best that political society has to offer them.” (9)
Gildin provides an outline of the design of Rousseau’s argument. The Social Contract consists of four books, and Gildin finds it to be divided into two main parts consisting of two books each. Each of those parts has three sections, although these do not correspond precisely to the chapter divisions. The first part (Books I and II) addresses the question of ‘Who rules?’—the Sovereign. There is an a section on false accounts of political sovereignty (I. ii-v), one on what the sovereign is and must be (I. vi-II. 6), and one on “the Legislator” or lawgiver, who founds the political community (II. 7-12). False accounts of sovereignty pretend to establish human inequality; the true account of sovereignty establishes human freedom and equality on a new, non-natural basis; the account of the Legislator describes the one person ‘in but not of’ the state, a person who therefore is not below the sovereign. This first part moves from inequality to equality to inequality. The second part (Books III and IV) addresses the matter of governing institutions. There is a section on “government,” which is beneath the Sovereign (III. 1-9), one on popular assemblies, which are “what the sovereign is and must be” (III. 10-IV. 4), and one on (in Gildin’s somewhat vague and tantalizing phrase) “what the Sovereign cannot be and is not above.” Again, the movement is from inequality to equality to inequality. (Gildin, op. cit., 16-17, 174)
Rousseau states his intention at the outset of Book I, before beginning the first of its nine chapters. “I want to inquire, whether in the civil order there can be some legitimate and sure rule of administration, taking men as they are, and the laws as they can be: In this inquiry I shall try always to combine what right permits with what interest prescribes, so that justice and utility not be disjoined” (I. 41). He will then need to explain what the “civil order” is, what a “legitimate and sure rule of administration” might be, what “men as they are” are, and how all of this relates to laws “as they can be.” Although he seems prepared to distinguish human nature from administration and law, he will not go so far as Kant and sever justice from utility. On the contrary, as Gildin observes, Rousseau wants to find not only how political rule may be made legitimate, but how it can be made dependable (op. cit., 5). Whereas in Plato and Aristotle human beings are deemed to be political animals, naturally inclined to citizenship and equipped with a certain sense of and deference to “the best way of life” (ibid., 196, n. 10), Rousseau regards human beings as naturally apolitical. For him, republican virtue comes harder.
The “social order” (as distinguished from the “civil order”?) “is a sacred right,” derived not from nature but “founded on conventions” (I. i. 41). Aristotle finds the fundamental practices of political regimes in the family, which he understands as nature: two forms of ‘one-way’ or ‘ruler-ruled’ rule, the father-child relationship and the master-slave relationship, issue in kingship and tyranny, respectively—that is, good or bad monarchy; the husband-wife relationship, which entails ruling and being ruled, a shared and reciprocal rule, issues in what Aristotle calls “political” rule, and it underlies the two other good regimes, namely, aristocracy or the rule of the few who are good and the mixed regime, in which the few who are bad and the many who are bad share rule and are forced to produce laws that serve the interests of both, bringing good laws out of bad constituents. Political life is natural to human beings in part because it derives from the embryonically political features of family life. Rousseau rejects this analysis. The family is the only natural form of society, and its naturalness persists only so long as the children need the father for their preservation. Insofar as the family serves as the model of political societies, it substitutes “the pleasure of commanding” for paternal love (I. ii. 42). This sounds very much like Machiavelli, who also claims that “men as they are” seek rule for ‘its own sake,’ that is, for the sake of the pleasure of commanding. But Rousseau denies that Machiavelli really means it; he rejects the rule of princes, even to the point of alleging that Machiavelli intended The Prince as a satire on that rule, and such rulers. Instead, Rousseau targets Grotius (somewhat unfairly) and Hobbes (fairly enough) as advocates of the claim that might makes right. On the contrary, “force made the first slaves; their cowardice perpetuated them” (I. ii. 43). Again contra Aristotle, there can be no natural slavery in the sense of just slavery (I. iv. 44).
Here is where legitimating the chains comes in. “The stronger is never strong enough to be forever master, unless he transforms his force into right, and obedience into duty” (43). Otherwise, rulers and ruled alike are trapped in an endless, self-contradictory cycle of rule and rebellion, fleeting success the only standard of right, but if all power comes from God, so does all illness: “Does this mean it is forbidden to call the doctor?” (I. iii. 44). If so, then what could make the ruling power legitimate and stable? The despot’s claim, that “guarantees civil tranquility” and thus self-preservation “for his subjects” will never do, for the same reason John Locke adduces: He who would take away my liberty will have it in his power to take my life and property, too, in a foreign war for his own aggrandizement or simply out of bloodlust or greed; as Rousseau rather more colorfully puts it, “The Greeks imprisoned in the Cyclops’s cave lived their tranquilly, while awaiting their turn to be devoured” (I. iv. 45). But Hobbes is wrong. “Men are not naturally enemies” (I. iv. 46)., although not because they are naturally social or political, as Aristotle contends. As the Discourse on the Origins of Inequality argued, men originally lived more or less solitary lives, experiencing little contact, let alone conflict, with their fellows (I. iv. 46). It takes organized states to produce the condition of war among men.
In the central chapter of Book I, Rousseau begins his turn away from the false accounts of political authority by putting first things first. “Before examining the act by which a people elects a king, it would be well to examine the act by which a people is a people” (I. v. 49). If human beings are not social by nature, how is society itself founded? Even if one could imagine solitary beings somehow getting together long enough to vote to form a legitimate society, a mere majority vote would not suffice to make that legitimate, inasmuch as such a vote, if imposed on the minority, would effectively mean the rule of force by the many rather than by one or a few. Because Aristotle regards married human beings living in families as ‘pre-politically’ or potentially political, his version of the transition from the family to the polis comes fairly easily. Families, even extended families, lack self-sufficiency; to achieve it, to satisfy their natural wants, they form tribes and then poleis. Given his own premises, Rousseau needs to posit a somewhat harsher origin for the state, even the small ‘city-state’ of antiquity. At some point in their semi-solitary existence, men “reached the point where the obstacles that interfere[d] with their preservation in the state of nature prevailed” over the feeble resources that human individuals could muster (I. vi. 49). “They are left with no other means of self-preservation than to form, by aggregation, a sum of forces that might prevail” over the powerful natural forces that threaten them (I. vi. 49). This agreement to aggregate in order to resist these massive, utterly indifferent, uncaring, inhuman forces amounts to “the social contract”—which, despite the term, not only need not have been written down but “may never have been formally stated” at all (I. vi. 50). “Rightly understood” (it very often isn’t), this contract requires “the total alienation of each associate with all his rights to the whole community”; this alienation of one’s natural but recently indefensible rights to self-preservation and freedom to the community is “equal for all, and since the condition is equal for all, no one has any interest in making it burdensome to the rest” (I. vi. 50). This total alienation of natural rights to the non-natural, tacitly or explicitly agreed-upon community is absolutely necessary; otherwise, people would hold some of their original rights in reserve, giving them ungovernable claims upon all the others. You give up everything in nature to secure everything civilly. Rousseau italicizes: “Each of us puts his person and his full power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole” (I. vi. 50). If one recalls the illustration on the frontispiece of Hobbes’s Leviathan, with a ‘body politic’ represented by a sword-wielding monarch, ‘himself’ composed of molecules of individual human beings, in Rousseau we have another man-made or artificial body politic composed of individuals, but no longer compounded into or imagined as a monarchic regime. “In place of the private person of each contracting party, this act of association produces a moral and collective body made up of as many members as the assembly has voices, and which receives by this same act its unity, its common self, its life and its will” (I. vi. 50). That is, the aggregation of individuals who band together against the common enemy, external nature, can and should continue their popular or ‘republican’ gathering-together into civil society, needing no absolute monarch or favored few to lord it over them. In ancient times, this “public person formed by the union of all” was called a city or polis, but it’s now called a republic or body politic. The body politic is called “the State” when passive, “Sovereign” when active, and a “Power” when compared to other such bodies. The people comprising the body politic call themselves a “people” when thinking of themselves collectively, “citizens” when thinking of themselves as individuals, and “subjects” in terms of their relationship with the laws of the State (I. vi. 51).
Obviously, it is the body politic when active, in its capacity as “Sovereign,” that will worry the contractors. Designed to protect, might it not also injure? It should not, but Rousseau also wants to argue that it “can never obligate itself, even toward another, to anything that detracts from that original act, such as to alienate any part of itself or to subject itself to another Sovereign” (I. vii. 52); here one can see why Charles de Gaulle, that uncompromising defender of French independence, called the Social Contract, “despite its reputation, a powerful book.” The alienation of the natural rights of individuals to the body politic means that “one cannot injure one of the members without attacking the body, and still less can one injure the body without the members being affected. Thus duty and interest alike obligate the contracting parties to help one another, and the same men must strive to combine in this two-fold relation all the advantages attendant on it” (I. vii. 52). Might doesn’t make right, but might and right coalesce. “The Sovereign, by the mere fact that it is, is always everything it ought to be.” (I. vii. 52). Gildin very acutely remarks that the two political philosophers Rousseau never criticizes are Plato and Machiavelli (op. cit., 2), and here one sees why: Rousseau finds in the Sovereign both the solution to the problems found in men “as they are” according to Machiavelli and men as they should be, the question raised by Plato’s Socrates in his quest for justice. To combine something from these disparate, indeed rival philosophers could be to solve the political problem of coordinating might with right in practice, not only in theory. In Gildin’s estimation, “the ineradicability of self-love is the basis for Rousseau’s confidence that once true equality had been seured, the general will simply could not oppress the entire citizen body,” inasmuch as “their interest always keeps the commands of the sovereign within moderate bounds” (Ibid. 59-60). Yes, of course, Rousseau concedes, “the individual may, as a man, have a particular will contrary to or different from the general will he has as a Citizen,” but if he acts on his contrary will he will be constrained to obey the general will “by the entire body”; this is to say, in one of Rousseau’s most famous paradoxes, “he shall be forced to be free” (I. vii. 53). He will be “free” in the sense that he will be required to obey the terms of the social contract to which he consented, which saved him from being victimized not only by the impersonal natural forces which drove him to accept the contract in the first place, but by powerful human beings who might offer or even coerce him into the despotic ‘protection racket’ Rousseau warns against at the outset in his quotation of poor King Latinus. Dependence upon the impersonal State, “the political machine,” guards individuals against dependence upon impersonal nature and also against despotic persons, “personal dependence” (I. vii. 53). And that is what makes the chains of civil society legitimate and, in certain crucial aspects liberating.
“The transition from the state of nature to the civil state produces a most remarkable change in man” (I. viii. 53). Scholars who describe Rousseauian human nature as malleable are thinking of the way in which this semi-solitary, free but vulnerable being thus substitutes justice for instinct, “endowing his actions with the morality they previously lacked” by committing themselves to duties to his fellows instead of obeying only “physical impulsion,” and also giving himself rights instead of appetites, hereinafter “consult[ing] his reason before listening to his inclinations” (I. viii. 53). He gains much more than he loses, although Rousseau never forgets that he does lose. He loses his natural freedom from other persons. He gains “great advantages in return,” however, such as the exercise and development of natural faculties he had only potentially in the state of nature: the enlargement of his ideas, the ennoblement of his sentiments (he is now capable of, indeed obligated to, risk his life for his fellows). Harsh necessities imposed upon him by nature “wrested him from [nature] forever, and out of a stupid and bounded animal made an intelligent being and a man” (I. viii. 53). Once bound by natural forces, he is now limited by the general will. In this sense, Rousseau continues the modern project, the conquest of chance or Fortuna (Machiavelli), and more specifically the conquest of nature for the relief of “man’s estate” (Bacon). The nature he conquers includes his own nature, inasmuch as “moral freedom” in civil society “alone makes man truly the master of himself, for the impulsion of mere appetite is slavery, and obedience to the law one has prescribed to oneself is freedom” (I. viii. 54). That is the claim that Kant will soon radicalize into the categorical imperative.
In the Discourse on the Origins of Inequality Rousseau had described the founding of property as the seed of personal dependency in the state of nature itself. Under the social contract, however, “the State is master of all [individuals’] goods”; it exercises its mastery not be abolishing private property but by securing it; “having received his share, [the individual] must be bound by it, and he has no further right to the community [of goods]” (I. ix. 54). The first individual to occupy a piece of land has the right to it, so long as it was uninhabited by others, so long as the occupant “occup[ies] only as much of it as one needs to subsist,” and so long as the individual takes possession of it “not by a vain ceremony, but by labor and cultivation”—Locke’s well-known critique of Amerindian claims to vast portions of North America (I. ix. 55). The social contract doesn’t obliterate property; it secures it by legitimating it, as it does with all other natural rights. “The fundamental pact, rather than destroying natural equality, on the contrary substitutes a moral and legitimate equality for whatever physical inequality nature may have placed between men, and that while they may be unequal in force or in genius, they all become equal by convention and by right” (I. ix. 56).
Rousseau continues his discussion of sovereignty in Book II, explaining first why sovereignty is “inalienable.” The general will reflected by the social contract “alone can direct the forces of the State” toward its purpose, “the common good” because the general will means those elements among the particular, self-interested wills of the contractors which they share with all the other contractors. Since the State is the instantiation of the general will of the contractors, and since sovereignty is the State in action, by definition those actions aim at the common good of the society; without some point of common good, the society wouldn’t exist in the first place because no one would have agreed to it. What is more, the general will cannot be alienated, transferred to anyone else, inasmuch as it is a will; “power can be transferred, but not will,” which “can only be represented by itself” (II. I. 57). No rule of the one or of the few is possible fundamentally because this would mean that the people had promised “simply to obey” a particular will; the general will being the foundation of the contract, to try to establish a civil society on an act of obedience to a particular will would be to “dissolve [the people’s] quality of being a people,” to destroy the body politic (II. I. 57). “Chiefs” may indeed exist legitimately, but only “so long as the sovereign is free to oppose them and does not do so” (II. I. 57).
The sovereign is not only inalienable but indivisible. “Either the will is general or it is not” (II. ii. 58). Further, the general will is not only inalienable and indivisible but inerrant, again by definition. As general, it aims at the common good. This doesn’t mean that the deliberations of the people in assembly are inerrant; “one always wants one’s good, but one does not always see it” (II. iii. 59). The will of all isn’t necessarily the general will, any than the will of the majority is. Factions will arise, and if one predominates it will destroy the general will. But to say the sovereign is inalienable, indivisible, and animated by an inerrant will is not to say it is unlimited. Rousseau has not forgotten the danger of empowering the State, necessary though it is for securing rights. Even though the Sovereign “alone” may judge which portion of each man’s power, goods, and freedom “it is important for the community to be able to use,” the Sovereign in turn “cannot burden the subjects with any shackles that are useless to the community,” for “under the law of reason nothing is done without cause, any more than under the law of nature” (II. iv. 61). Equality of right produces the notion of justice; this equality “follows from each one’s preference for himself and hence from the nature of man”; in exchanging this natural preference for oneself for the general will in civil society, each citizen understands that that general will “loses its natural rectitude when it tends toward some individual and determinate object” (II. iv. 62). The general will cancels its own existence insofar as it is turned toward any interests other than those which all the contractors hold in common. “Every act of sovereignty,” that is, “every genuine act of the general will, either obligates or favors all Citizens equally, so that the Sovereign knows only the body of the nation and does not single out any one of those who make it up” (II. iv. 63) (italics added).
Hume’s challenge to the idea of natural right looms up here. How does the natural preference of each individual for himself get to be a “right” that somehow follows him into the civil society he freely joins? It is easy to see how it becomes a right upon entering civil society, but in what sense is it a natural right? We may be free by nature in the sense that we have no immediate need to make ourselves dependent upon other individuals, but why does that make freedom a right? Preliminarily, one might suggest that self-preference and freedom in nature are potential rights, in the same way that man in the state of nature may be said to have reason in an undeveloped state. This is a problem for Rousseau in a way that it is not for Aristotle, because Aristotle understands human nature as ‘teleological’ or purpose-driven in a way that Rousseau does not. For his part, Gildin suggests: “The fairness of the general will, where that fairness is understood as derivative from its equal directedness to the preservation, security, and freedom of each citizen, and the perception of that fairness by the members of the city, are at the center of Rousseau’s teaching regarding the sound political order” (op. cit. 156).
Leaving this question aside, Rousseau does show why the State has the right to put the citizen-contractors at physical risk on the battlefield, or even to exact capital punishment on certain criminals. If you will the end, you will the means, and if the means to preserve the civil society in which you live, which protects your life, entails going to battle to defend it against hostile States, then that’s that. Your “life is no longer only a bounty of nature, but a conditional gift of the State” (II. v. 64). Similarly, a criminal is an enemy of the State and may rightly be put to death if his life “cannot be preserved without danger” (II. v. 65).
Criminals are law-breakers, and in concluding the second section of what Gildin identifies as the first part of The Social Contract, Rousseau considers law. The social contract gives “existence and life” to the body politic; legislation gives it “motion and will” (II. vi. 66). After acknowledging God as the source of all justice, he denies that we can receive it from him. Similarly, justice “emanating from reason alone” exists but “for want of natural sanction” its laws are “vain among men,” bringing “good to the wicked and evil to the just when [the just man] observes them toward everyone while no one observes them toward him” (II. vi. 66). We can combine rights with duties only within civil society, by means of conventions and laws. A law is exactly such an “enacting will,” one always aimed at society in general and never at any particular individual or individual action. This does not preclude laws establishing different classes of citizens, only the nomination of a particular citizen for admission to a class so established.
In this sense, “every legitimate”—legal—”Government is republican” in that it is ruled by laws that are true laws, which are general, not particular, part of the res publica (II. vi. 67). Democracies, aristocracies, and even monarchies can be “republics” in that they are so ruled; they are ‘owned’ by the public in the sense that the people have limited its rulers (themselves, if it’s democracy) by laws they enacted. This raises the question of political wisdom, the capacity to enact laws that are well-designed to secure justice, whatever the regime may be. “Who will give [the body politic] the foresight necessary to form its acts and to publish them in advance, or how will it declare them in time of need?” (II. vi. 68) The people “wills the good, but by itself it does no always see it”; “the general will is always upright, but the judgment that guides it is not always enlightened” (II. vi. 68). The people needs a Lawgiver, a Legislator, to which topic Rousseau now turns as he begins the third section of Gildin’s outline of the first part of the Social Contract, which takes us to the end of Book II.
As Gildin has observed, the Legislator brings us back to inequality, following the egalitarian core of the first half of the treatise. “It would take gods to give men laws,” but a very great man will do (II. vii. 69). “Anyone who dares to institute a people must feel capable of, so to speak, changing human nature; of transforming each individual who by himself is a perfect and solitary whole into part of a larger whole from which that individual would as it were receive his life and being; of weakening man’s constitution in order to strengthen it; of substituting a partial and moral existence for the independent and physical existence w have all received from nature” (II. vii. 69). His aim is to make man even freer by designing the laws in such a way that “the force acquired by the whole is equal or superior to the sum of the natural forces of all the individuals” (II. vii. 69). The Legislator is above not only the magistrates who will rule according to the laws he sets down but above sovereignty itself, inasmuch as he designs the laws the State will be formed because duly ratified by “the free suffrage of the people” (II. vii. 70). Reciprocally, he will be limited because restrained from ruling, after his founding is done. He faces a difficult task, to put it gently, inasmuch as he wields no force and can employ no reasoning with a people unlikely yet to have developed their rational capacities. He therefore “resort[s] to the intervention of Heaven and to honor the Gods with their own wisdom” in order to induce the people to “freely obey the yoke of public felicity, and bear it with docility” (II. vii. 71). His “sublime reason which rises beyond the reach of vulgar men,” which “the Lawgiver places in the mouth of the immortals, in order to rally by divine authority those whom human prudence could not move,” may remind some readers the genius of the Machiavellian ‘Founder,’ and in case it doesn’t, Rousseau quotes the Florentine himself in footnote, avowing that “there has never been in any country a lawgiver who has not invoked the deity” in order to win acceptance for his laws (II. vii. 71). With Machiavelli, he points to Moses as a successful Legislator, given the fact that “the Jewish law… still endures,” along with the name of Moses. True religion is civil religion.
Another limit on the power of the Legislator is the character of the people for whom he legislates. As an architect must test the ground to see if it will support the weight of the building he has designed, so the “wise institutor” of laws will examine “whether the people for whom he intends them is fit to bear them” (II. viii. 72). A people without longstanding customs prove the easiest material for the Legislator, although violent revolutions may make an old people new again, “recover[ing] the vigor of youth as it escapes death’s embrace” (II. viii. 72). Even this cannot happen more than once, as “freedom can be gained” but “is never recovered” (II. viii. 73).
Size also limits the Legislator’s power, as “the more the social bond stretches, the looser it grows” (II. ix. 74). Large states are difficult to administer from the central capital and consequently feature too many levels of government. But if the Legislator attempts to centralize it, the administration will become costly and top-heavy, breeding discontent. Distant “chiefs” and fellow-citizens inspire little love, and “clerks govern the state” (II. ix. 74-75). Different climates incline the people to different ways of life; if the laws are uniform they won’t fit everyone, and if they are diverse they will foster confusion. On balance, “one should rely more on the vigor of a good government, than on resources provided by a large territory” (II. ix. 75). The ratio of territory to population should be whatever amount of territory suffices to feed the population; otherwise, the people will lack self-sufficiency, depending upon commerce and war for their prosperity.
The Legislator should aim at “two principal objects, freedom and equality. Freedom, because any individual independence is that much force taken away from the State; equality, because freedom cannot subsist without it” (II. xi. 78). A feudal serf serves his lord, not the State; the degree of inequality whereby one man is reduced to serfdom precludes civic freedom. The existence of “very rich people or beggars” is “fatal to the common good” and an instigation to tyranny no matter which faction eventually dominates (II. xi. 78n.). With Aristotle, then, Rousseau commends “moderation in goods and influence” among “the great, “”moderation in avarice and covetousness” among the “the lowly” (II. xi. 78). The laws needed to achieve this will vary from geographical circumstance to the next, and from one people to the next. The Legislator must coordinate the laws with nature.
The Legislator also need to remain mindful of the several kinds of laws. Fundamental or “political” law—political in that it determines the “the relation of he whole to the whole,” “the action of the entire body acting upon itself”—establishes the form of government, the State’s regime or constitution (II. xii. 80). Civil laws address the relation of the citizens with each other or with the entire body, making them independent of one another but dependent upon the whole (“for it is only the State’s force that makes for its members’ freedom”) (II. xii. 80). Criminal laws govern the relationship of disobedience to the laws to penalties for such disobedience. “The most important of all laws”—more important, even, than the constitutional law—are the moral laws, the morals, customs, and above all the opinions of the people (II. xii. 81). Moral law “imperceptibly substitutes the force of habit for that of authority,” thereby strengthening popular consent and allowing rulers to rule with a lighter and less resented hand (II. xii. 81). Rousseau announces that the second half of the Social Contract will address political laws, only, although that will not turn out to be the whole truth.
Book III begins with an admonition to read the first chapter carefully, as “I lack the art of being clear to those who are not willing to be attentive” (I. I. 82). Rousseau very clearly distinguishes “Government”—by which he means what we would call the executive—from the Sovereign or legislative capacity of the people; Government must never be thought to be anything more than subordinate to sovereignty. The Government is to the Sovereign what bodily force is to the will. Conversely, the Sovereign never acts but only wills; “all of the Sovereign’s acts can only be laws” (III. I. 82). The Government not only executes the laws but also maintains freedom within the body politic and against foreign enemies. There is no social contract between the people and its governors, only the commissioning of the office staffed by persons who derive their power from the office they hold, and thus from the Sovereign, which established the office. “The Government receives from the Sovereign the orders which it gives the people, and for the State to be well balanced it is necessary that, all other things being equal, the product or power of the Government taken by itself by equal to the product or power of the citizens who are sovereign on the one hand, and subjects on the other” (III. I. 83). Otherwise, you will have what’s now called a ‘failed state,’ quite apart from the question of whether its regime has been changed.
Sovereignty being undivided, the more citizens there are the smaller percentage of the Sovereignty each citizen possesses. The bigger the population of the State, the less freedom in the Rousseauian sense of political power wielded by the individual citizen. If the Government expands in order to govern an increased population, the Sovereign will need commensurately more power “in order to contain the Government” (III. I. 84). But the ratio involves more than mere population or raw numbers; if the citizens are active, if their moral qualities are strong or weak, that too effects the ratio because it means the citizens exercise their ‘containment’ power more or less vigorously. “Geometric precision does not obtain in moral quantities” (III. I. 85). Political difficulties “consist in ordering this subordinate whole [the Government] within the whole” (III. I. 86). As Gildin puts it, “the people must be too weak distributively to disobey the government and too strong collectively to be disobeyed by it” (op. cit., 96).
Rousseau also distinguishes between the Government and “the Prince.” The Prince or Magistrate consists of one, few, or many persons charged with administration. “The more numerous the Magistrates, the weaker the Government” (III. ii. 87) because, obviously, the rule of one is more coherent than the rule of few or of many. This implies that “the ratio of magistrates to Government should be the inverse of the ratio of subjects to Sovereign: That is to say that the more the State [the body politic] grows, the more should the Government shrink,” so that the Government will be able to exercise the more coherent rule needed to give order to a large people. “The art of the Lawgiver consists in knowing how to determine the point at which the force and the will of the Government which are always inversely proportional, can be combined in the relation[or ratio] most advantageous to the State” (III. ii. 89). The Legislator may establish a democracy, or government/executive consisting of the whole people or the majority of them, an aristocracy, wherein the government/executive is in the hand of the few, or a monarchy, with its single magistrate. These forms of Government admit of degrees and mixtures. Generally, democratic Government suits small States, aristocracies medium-sized States, monarchies large States.
Because Governments, as distinguished from Sovereigns or legislatures, take particular rather than general actions, democratic Governments are inadvisable: “Nothing is more dangerous than the influence of private interests on public affairs” (III. iv. 91). It is also impractical, considering that to give executive power to the bulk of the citizens would require them to remain assembled more or less perpetually. “If there were a people of God, they would govern themselves democratically. So perfect a Government is not suited to men” (III. iv. 92)—as that people of God, the Puritans, who according to Tocqueville introduced democracy to America, had found out in the century before Rousseau lived. The fifth, central chapter of Book III describes what can be either the best or the worst practicable form of government, aristocracy. After natural forces drove the natural families into the first social-contract societies, the governments consisted of the family patriarchs “deliberat[ing] among themselves about the public business,” a form of government still well-used by “the savages of northern America” (III. v. 92). But the very institution of such inequality led to less and less natural versions of aristocracy: initially elective aristocracies, then hereditary. Patriarchal aristocracy works for “simple peoples”; hereditary aristocracy is “the worst of all Governments”; but elective aristocracy is the best of all governmental forms—”Aristocracy properly so called” (III. v. 93). “The best and most natural order is to have the wisest govern the multitude, so long as it is certain that they will govern it for its advantage and not for their own,” and that’s what elections are for, as they can keep the aristocrats tolerably close to the general will (III. v. 93).
Monarchy provides the most vigorous form of governmental/executive power, but also the one most linked to the “particular will” of the Magistrate instead of the general will. Here is where Rousseau assures his readers that Machiavelli didn’t really mean his praise of monarchy in The Prince, that he was “forced during the oppression of his fatherland [by the Medici] to disguise his love of freedom” (III. vi. 95n.). It is safer to say that a preference for ‘republicanism’ in Government over monarchy is Rousseau’s own view. Monarchs may be vigorous, but vigor poorly limited by popular constraints runs to bungling, knavery, scheming, and pettiness. Although succession is a problem for any form of government, while elections are rife with intrigue and corruption, hereditary successions corrupt the character of the heir, whose misgovernment is justified as divine punishment by pontificating priests.
Rousseau briefly and somewhat unenthusiastically describes the regime Aristotle preferred as the best practicable one, the mixed regime. When executive power has been allowed to escape strict subordination to the legislative power, dividing the Government may prove a necessary stopgap. In so arguing, Rousseau illustrates the title of the next chapter, “That Not Every Form of Government Is Suited to Every Country.” Governmental forms should match potential revenues, themselves determined not only by tax rates but by climate, which determines the natural wealth of the State. Southern countries, rich in resources, support despotism; hardscrabble northern climates support little more than barbarism; moderate climates can produce “good polity” (III. viii. 102). On the moral side of things, the best sign of good polity is population increase without resort to immigration or colonization. In addition, Rousseau endorses Machiavelli’s claim that “a little agitation energizes souls” (III. ix. 106n.); republican disputation exercises citizen virtue in a way the quiescence of despotism can never do. This praise of republicanism concludes the first section of what Gildin identifies as the second part of the Social Contract and serves as an introduction to the second section. Having established the moral importance of subordinating Government to Sovereignty, the executive to the legislative, Rousseau turns (as he did in the first part) to freedom and equality in the second section, comprised by chapters III. x to IV. iv. This means a turn from the executive to the legislative assembly.
But not immediately. The crucial conflict in political life is the conflict between the particular will and the general will, the Government against the Sovereign. III. x and III. xi form a counterpart to III. ix: “the abuse of Government and its tendency to degenerate” followed by “the death of Government.” These are caused by the particular will or wills’ increasingly successful subversion of the general will. Gildin puts this with his usual concision: “The very waywardness of the particular will that makes government necessary reappears within government itself” (op. cit. 130). This may occur if the Government contracts, moving from democracy (“the only form of government that can be brought into being by a simple act of the general will,” as Gildin observes [op. cit. 140]) to aristocracy, aristocracy to kingship (III. x. 106) and thereby distancing itself from the expression of the general will, or if it dissolves altogether, either by princely lawlessness or by factionalism within the Government itself. This account enables to Rousseau to restore, in a noticeably altered way, Aristotle’s distinction between good and bad regimes of the one, the few, and the many. Political degeneration occurs when democracy degenerates into ochlocracy or mob rule, aristocracy into oligarchy, and kingship into tyranny. In Aristotle, of course, the mixed regime is superior to democracy and tyranny means the one who governs citizens as if they were slaves, whereas Rousseau defines tyranny simply as usurpation of lawful rule. Nonetheless, as readers will see when Rousseau discusses the Roman republic, Rousseau shares Aristotle’s esteem for the mixed regime. In Rousseau, however, the legislative part of any regime enjoys pride of place in a good regime. The body politic dies when its life-giving, legislative heart fails.
This remark leads to a consideration of how sovereign authority, the lawmaking power, may be attained, which is tantamount to considering how the assembly can be maintained against usurpation by the executive. This can only occur if the people must meet in fixed, periodic assemblies “which nothing can abolish or prorogue” (III. xiii. 111). If the Government is strong, this popular assembly should occur more frequently, and every time it does the activities of the Government must be suspended. To meet the problem of how to assemble the people in larger States, Rousseau recommends moving the capital around the country, so that the people of no one region can dominate every such popular assembly. This more than suggests that States should not be allowed to become very large.
It also means that citizens must be fully citizens. “As soon as public service ceases to be the Citizens’ principal business, and they prefer to serve with their purse rather than with their person, the State is already close to ruin” (III. xv. 113). Absorption in household concerns indicates a bad Government. Accordingly, elected representatives should not enact laws but only propose them for popular ratification. “The idea of Representatives is modern: it comes to us from feudal Government, that iniquitous and absurd Government in which the human species is degraded, and the name of man dishonored” (III. xv. 114). Given the treatment of Christianity to be presented in Book IV, “modern” here means “Christian,” and the dilution of direct citizen participation in Government betokens the inclination of Christians to prefer the spiritual City of God to the here-and-now cities of men. And when the spirituality of Christians weakens, the pursuit of individual and family self-interest leads to the ‘bourgeois’ inclination to leave Government to others, to abandon self-government in the strong sense in which it prevailed in some regimes of antiquity. “The instant a People gives itself Representatives, it ceases to be free; it ceases to be” (III. xv. 115). Given this, however, a new problem arises: freedom is the privilege of small States, self-defense the privilege of large States. Small States thus lose their freedom to unfree large States. Rousseau will not address the problem of foreign policy in the Social Contract, and says so in its concluding chapter.
Thinking in terms of the internal workings of the body politic, then, Rousseau does say how one should think about the relationship between the Sovereign and the Government. It is imperative for citizens to understand that the social contract is social, not governmental. All citizens are “equal by the social contract” (III. xvi. 116). The citizens do not contract with the Government, since the Sovereign cannot diminish its own power and the establishment of the Government is a particular act, not one that encompasses all citizens equally. To establish a Government means to establish some body, however large, that is superior in its relation to individuals, inferior in relation to the citizenry as a whole. The Sovereign establishes the Government, including its form, first by forming a provisional Government which is democratic. In framing the law forming the permanent Government, the provisional democracy may choose to retain that form, or it may form another, narrower form of the few or of one.
Rousseau recommends that the permanent Government feature an assembly to prevent usurpations by the executive; the assembly will have “no other purpose than to maintain the social treaty” (III. xviii. 119). It will open every session by determining if the Sovereign (itself) will retain the present form of Government, and whether the people choose to leave the current officeholders in office. Only the general will is “indestructible,” and the people will usually find it out. Rousseau endorses in advance the maxim of W. C. Fields, “You can’t cheat an honest man.” As he rather more formally puts it, “Peace, union, equality are enemies of political subtleties. Upright and simple men are difficult to deceive because of their simplicity [italics added], they are not taken in by sham and special pleading; they are not even clever enough to be dupes.” (IV. I. 121) It is only when “the social knot begins to loosen” that factions form, “the general will is no longer the will of all,” and “the best opinion no longer carries the day unchallenged” (IV. I. 121-122).
This applies to voting. “Every man being born free and master of himself,” the individual’s consent is necessary when “the social pact” is proposed. This includes slaves, for “to decide that the son of a slave is born a slave is to decide that he is not born a man” (IV. ii. 123). If some reject the social contract when it’s proposed, “their opposition does not invalidate the contract, it only keeps them from being included in it”; they become resident foreigners, if they choose not to move away (IV. ii. 123). But if they do stay, they consent to submit to the newly-established sovereignty, as non-citizens, non-sharers in that sovereignty. In subsequent votes, whether for laws or for candidates for office, citizen unanimity is neither practical nor morally necessary. Having agreed to the social contract, I must abide by majority rule. “When a law is proposed in the People’s assembly, what they are being asked is not exactly whether they approve the proposal or reject it but whether it does or does not conform to the general will, which is theirs”; if I am in the minority, “it proves nothing more than that I made a mistake and that what I took to be the general will was not” (IV. ii. 124). Rousseau hastens to add that this presupposes “that all the characteristics of the general will are still in the majority; once they no longer are, then regardless of which side one takes there no longer is any freedom” (IV. ii. 124). As described in the previous chapter, corruption has carried the day.
When it comes to Government, as distinguished from lawgiving, “there is no genuine democracy” (IV. iii. 126). Rousseau devotes the longest chapter of Book IV, and the three subsequent chapters, to a discussion of the governing institutions of ancient Rome. He begins with an account of Rome’s Comitia or tribal assemblies, established by the founding monarch, Romulus, the first of which being the Comitia of three (but eventually 35) tribes. The original tribes “were at first entirely military,” and this military (as opposed to commercial) spirit “led the little city of Rome to assume in advance an administration suited to the capital of the world” (IV. iv. 127-128). Rousseau’s republicanism sharply differs from the commercial republicanism of Great Britain and, in the near future, the United States; it is on this point among others that General de Gaulle came to distrust the ‘Anglo-Americans,’ as he called them.
By the time of Rome’s sixth king, Servius Tullius, the increase in population of one of the three tribes threatened to unbalance the monarchy. He substituted a geographic division, really redefinition of the tribes for the original division by bloodlines and added a fourth tribe. In addition to these four urban tribes, Servius ordained fifteen rural tribes. Rousseau regards the addition of these rural tribes as having been indispensable to the success of the republican regime that came after Servius’ assassins were overthrown. “Rome owed to [the distinction between the urban and the rural tribes] both the preservation of its morals and the growth of its empire, because rural life preponderated over the “arts, crafts, intrigue, fortune and slavery” of the city (IV. iv. 128-129). Rome’s aristocrats maintained country estates; “the Villagers’ simple and hardworking life was preferred to the idle and loose life of the Roman Bourgeois,” and “the Village [became] the nursery of those robust and valiant men who defended them in time of war and fed them in time of peace” (IV. iv. 129). Rousseau contrasts the way of life of Roman republicanism with “the modern people,” characterized by “devouring greed, unsettled spirit, intrigue, constant comings and goings, [and] perpetual revolutions of fortune” (IV. iv. 131). Despite the vast expansion of the franchise under Servius, precursor to the change of regime from monarchy to republicanism, the advantages given by Romulus to the aristocratic class (primarily via the patron-client relationship, “a masterpiece of politics and humanity” [IV. iv. 133]) lent Rome its last combination of warrior-virtue and prudence. “The whole majesty of the Roman People resided only” in the aristocratic Senate, “as long as honesty reigned among the Citizens” (IV. iv. 135).
On occasion, even honest citizens may take several steps too far. Here the final section of Gildin’s outline begins. The central chapter of Book IV concerns the Tribunate, an institution common to the Roman Republic but also to Sparta and to the modern Venetian Republic. The sole purpose of the Tribunate in Rome, the Ephors in Sparta, and the Committee of Ten in Venice is to restore balanced relations between the Prince and the People, or the Prince and the Sovereign and to preserve the laws. In Rome, the Tribunes protected the Sovereign against the Government; in Venice, the Committee of Ten protects the Government against the People, and in Sparta the Ephors supported one side against the other, by turns. Roughly analogous to the United States Supreme Court, the Tribunate under whatever name in operates has no share of executive or legislative power; “while it can do nothing, it can prevent everything” (IV. v. 137). There is of course a danger: “A wisely tempered Tribunate is the firmest bulwark of a good constitution; but if it has even a little too much force it overthrows everything,” “degenerate[ing] into tyranny when it usurps the executive power of which it is but the moderator, and tries to administer the laws which it ought only to protect” (IV. v. 137).
Equally necessary and dangerous was the office of the Dictatorship. The “inflexibility of the laws” can prove a barrier against arbitrary rule, but this very strength will prove a weakness in a crisis, when extralegal powers are necessary to defend the nation and the regime (including the system of laws itself) (IV vi. 138). In such times, for the sake of “the salvation of the fatherland,” a stronger hand will be indispensable. Stronger, but not limitlessly strong: the Dictator “can do anything, except make laws” (IV. vi. 139). He served for a fixed, brief term—six months—making his official lifespan bound by the laws themselves. In framing the constitution of the Fifth Republic, de Gaulle took care to place the power of emergency dictatorship in the hands of the President of the Republic, and it came in handy when the Algerian colonists rebelled against the regime.
Just as the laws may require extralegal support, so may the informal laws of public opinion. The office of Censor amounts of the governmental office intended not to serve as an arbiter of public opinion but as its articulator. If it departs from public opinion “its decisions [become] vain and without effect” (IV. vii. 141). “Among all the peoples of the world, not nature but opinion determines the choice of their pleasures. Reform men’s opinions and their morals will be purified of themselves.” (IV. vii. 141). The natural locus of opinion is honor. By honoring and dishonoring citizens and their actions, the Censor fortifies public opinion, preserving its republican chastity as long as possible. He can preserve morals for a time, but not restore them once they decline.
Religion serves as the most important guide of morality; not for Rousseau the Voltairean hope that atheism (which is what Deism amounted to, civically) could support the civic life of a regime. At the same time, Rousseau gives nothing to Rousseau or their common mentor, Machiavelli, as a critic of Christianity. Under paganism there were no wars of religion because each State had its own gods and “the God of one people had no right over the other peoples”; “the Gods of the Pagans were not jealous Gods” (IV. viii. 143). Rousseau goes so far as to claim that “even Moses and the Hebrew People sometimes countenanced this idea in speaking of the God of Israel,” although his one example may be described as weakly persuasive, and when the insisted otherwise they “brought down upon themselves the persecution we read about in their history,” a persecution shared by the early Christians, as well (IV. viii. 143-144). In Homer, by contrast, and in pagan antiquity generally, men didn’t fight for the gods but the gods fought for men, who showed their gratitude by building altars to their gods after victory was obtained.
The Roman empire under both its republican and later monarchic regimes “welcomed into their Pantheon the gods of the defeated,” as André Malraux would write, two centuries after Rousseau. The spiritual kingdom founded on earth by Jesus “led to the State’s ceasing to be one, and caused the intestine divisions which have never ceased to convulse Christian peoples” (IV. viii. 144). Their persecution occurred because the Romans saw them as rebels, and “what the pagans had feared came to pass,” as “this supposedly other-worldly kingdom was seen to become under a visible chief the most violent despotism in this world,” a despotism that “has made any good polity impossible in Christian States” (IV. viii. 145). This brings Rousseau to praise Muhammad, a man of “very sound views” who “tied his political system together well,” although it has subsequently fallen into decadence (IV. viii. 145). Among Christian authors, “Hobbes is the only one who clearly saw the evil and the remedy… dar[ing] to propose reuniting the two heads of the eagle,” although “he must have seen that the domineering spirit of Christianity was inconsistent with his system, and that the interest of the Priest would always be stronger than that of the State” (IV. viii. 146).
In view of these considerations, Rousseau becomes one of the first critics of existing Christian belief and practice to turn to a supposed ‘early’ Christianity or Christianity of the Gospels. He begins by identifying two, then three kinds of relationships between religion and society. The first, with no visible institutions, consists of “the purely internal cult of the Supreme God and the eternal duties of morality,” “the pure and simple Religion of the Gospel, true Theism, and what may be called divine natural right” (IV. viii. 146). Rousseau will soon call this “the Religion of man or Christianity,” a formulation deserving close scrutiny (IV. viii. 147). The second kind of religio-political system is paganism, which extends “the rights and duties of man only so far as its altars,” observing what Rousseau calls “divine civil or positive right” (IV. viii. 146). The third, “more bizarre sort of Religion,” exemplified by “Roman Christianity” and “the Religion of the Lamas,” puts forward the rule of the Priest and “results in a mixed and unsociable right” to which Rousseau declines to give so much as a name (IV. viii. 146-147). It is “so manifestly bad that it is a waste of time to amuse oneself demonstrating that it is,” inasmuch as “everything which destroys social unity” and “put[s] man in contradiction with himself” is “worthless,” “detaching [Citizens] from all earthly things” (IV. viii. 147). “Christian Republic” is a contradiction in terms (IV. viii. 149). All of this (Machiavellian) teaching being so, in Rousseau’s opinion, the thing to do now is for each State to set down its own “purely civil profession of faith,” a catechism establishing the “sentiments of sociality without which it is impossible to be either a good Citizen or a loyal subject” (IV. viii. 150). Those who reject refuse the civic profession shall be exiled (“not as impious but as unsociable, as incapable of sincerely loving the laws, justice, and, if need be of sacrificing his life to his duties”) or punished with death, if actively defiant (IV. viii. 150). These “dogmas” will include a prohibition against religious intolerance—establishing Rousseau as a source of the now-familiar phrase, ‘We tolerate everything but intolerance,’ although in latter days this has been extended to moral laws themselves, very much in contradiction to Rousseau’s intention.
In his brief concluding chapter, Rousseau looks back at the work as a whole and announces that these are “the true principles of political right” (IV. ix. 152). Gildin ends his own book by remarking that the first word of the Social Contract is “I,” and the last word is “me.” Rousseau himself is “in some sense even higher in dignity than the social order or than his activity as a legislator” (op. cit., 191). Gildin therefore refers his readers to “the writings of Rousseau the subject of which is Rousseau himself” (191). There one learns more about the philosopher whose thoughts provide clear and legitimate boundaries for civil societies.
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