“…The moment a people allows itself to be represented, it is no longer free: it no longer exists.” A “pure democracy” interpretation of Rousseau could use this statement about representatives as evidence that The Social Contract is a manifesto of radical self-government. If we hold as an axiom from this interpretation that a person under representatives (as one in the United States or United Kingdom, for example) is not free, we find that The Social Contract will present a myriad of practical and logical problems if it simultaneously asserts that people in any state can be free. Most people readily accept the notion of total democracy not being very feasible. Such a system would place high demands on citizenship, requiring full participation in both legislation and enforcement. Rousseau himself concedes that such a state would only be possible on a small scale. More importantly, such a restrictive view of sovereignty conflicts with almost any form of trusteeship in duty, including the hire of deputies to execute the will of the state, which would be a requirement for any concrete state—including those that Rousseau would advocate—to function.
Rousseau’s distinction between law and decree
The pure-democracy interpretation of Rousseau is likely false after a careful reading of Rousseau. While he may be biased in preference toward a “city-state direct democracy” orientation, that says nothing about his political theory.[1] The proper implication of his position toward representation is that while sovereignty can not be expressed through representatives, not all cases of the existence of “representatives” (in the broad sense of the word) entail a loss of sovereignty. At the center of this more refined interpretation are the specific meanings of the words he uses, marked by the strict difference between law and decree, Sovereign and government, and legislative and executive:
“When, for instance, the people of Athens nominated or displaced its rulers, decreed honors to one, and imposed penalties on another, and, by multitude of particular decrees, exercised all the functions of government indiscriminately, it had in such cases no longer a general will in the strict sense; it was acting no longer as Sovereign, but as magistrate.”[2]
In other words, the Sovereign is to law[3] as the magistrate is to decree. When Rousseau states “very few nations have any laws,”[4] he is not suggesting that few nations have rules and statutes, but that few have a core set of fundamental laws of governance in direct accordance with the general will. Because the general will does not deal in particular objects, laws do not either, and the government’s duties lie in decrees. The Sovereign is the entity that sets the laws, but does not set policy: that is the role of government.[5] Thus, it is not in conflict with Rousseau’s position to elect representatives of the people who determine necessary decrees, such as a formal treaty with another nation or a mandate for the construction of a bridge. In fact, this implies that Rousseau would possibly approve of a constitutional democracy similar to the one in the United States: the Constitution, which was approved via an act of the people’s sovereignty (the Constitutional Conventions), is the body of laws; and the executive, legislative, and judicial branches are tasked with representing the people in the construction of decrees.[6]
Given this account, Rousseau is certainly correct in asserting that sovereignty is not something that can (or should) be “given” to a representative, just as he argues that one cannot (or should not) sell himself into slavery. However, even this revision is in conflict with reality- not in its words, but in its implications. What Rousseau intends to suggest by his argument is that sovereignty, in the construction of laws via the general will, can not be represented. On the contrary, it is indeed possible for a man to exercise sovereignty via a representative, not only at the level of decrees, but also of laws.
The law-decree dichotomy can only take us so far, as it sets simply a difference in statements marked by the semantics of the sentences which they embody. This is because one who decrees must always do it in accordance with laws. Thus, when a decree states “1000 gold pieces shall be levied for the construction of a bridge on the river,” it holds implicitly in it the principles that taxation and expenditure for the construction of such projects are legitimate, in addition to the contingent facts of the bridge’s form or location. Though The Social Contract is not intended to carry any specific prescriptions for laws except those necessary for the general will (individual freedom in nature and Sovereignty), Rousseau acknowledges the existence of objective truths: “what is well and in conformity with order is so by the nature of things and independently of human conventions.”[7] This emphasizes rational thought as being at the forefront in the discovery and exposition of laws and decrees, and sets the critical basis for the remainder of this discussion.
The role of representatives as implicit law-makers
There is a common misconception that “principles” (i.e., laws in terms of this discussion) are a shortened, codified set of statements that are then “applied” to specific situations; however, embodied in a complete expression of these principles are the nuances that apply to particulars. The statement, “one should not kill another,” is not a principle in itself, but merely a brief, sentence-long summary of the principles related to the death of a man at the hands of another. A judge may inquire into a specific case and discover that man A killed man B, but only after B attacked him in an alleyway. He then concludes in the verdict that man A was behaving in self-defense, and thus acted lawfully. Suppose, however, we had more facts about the case: A had fought with B, defeating him and holding him at his mercy, but had killed B anyway. The verdict changes to man A having behaved legitimately in self-defense, but unlawfully in killing his incapacitated enemy in cold blood. Each additional particular fact present in the case, if when added alters or justifies further the verdict, is thus essentially a part of the principles; we could then revise our initial statement to read “one should not kill another, except in self-defense, which is defined as an imminent threat to one’s life.”
Therefore, the purpose of the judge is to ascertain the relevant particulars of a (new) situation and apply them against the principles; yet, in doing this, he is refining and adding to the existing set of laws. It is practically impossible for any body of people, no matter how large or how small, to prescribe the entirety of the set of all relevant lawful principles, any time from the outset to the demise of a society. Furthermore, it is logically impossible for absolutely no form of judgment to be required in observing factual data, ascertaining its characteristics, and matching its correspondence with the abstract law. To one degree or another, all deputies and representatives hired for the purpose of the executive branch of government (as Rousseau defines it) are law-makers in that they must behave lawfully in their positions but do not have prescriptions in totality for the numerous situations their duties encounter. Better said, it is frequently the case that a function of a government results in an exercise of the power of the Sovereign, in some positions more than others (a judge more than a janitor). As such, it is inevitable that the people will elect representatives or deputies who will not only function as executors of law, but as legislators of law. Represented sovereignty is the result, which—by Rousseau’s definitions—makes all men everywhere either slaves if they associate and create government, or subject to pure force in nature if they do not.[8]
Can society use representatives and maintain its sovereignty?
Is the above fact just an unpleasant reality? The necessity that compels a free people to appoint a military commander, a skilled diplomat, or a judicial bench is an understanding of the unequal distribution of talents (a fact which Rousseau acknowledges). The general will can be such that rationally-behaving people, recognizing their limitations, submit the more complex parts of necessary judgments to representatives. It is not only rational, but also well within their rights. If there were an issue of law too complicated for one man to understand and it were beyond him to ever achieve the necessary level of understanding (perhaps because he was too busy working to feed himself), what would be his proper action? Should he cast his vote by chance, or entrust his judgment to another, or neither? The first and last options are clearly irrational, leaving only the second in question, and it is indeed a rational choice. While the man may not understand the issue at hand, he understands that there is a question, that it has a rational and right answer, and that there are others whom he has observed produce the right answer on several occasions and whom he is willing to trust. He is simply integrating the best information he has to make the decision that he expects to generate the most accurate answer, and he is entirely justified and free in doing so.
Granted, if many people possessed understanding of little and did not even understand the notion of sovereignty itself, it would be extremely unlikely for a legitimate state to spring into existence if a state could ever be legitimate. Nonetheless, to suggest that someone who is of weaker rational faculty lacks the fact (or even the right) of sovereignty is absurd. So long as this person understands his own right to freedom (in nature) and his sovereignty, he does not forfeit these rights if he fails to comprehend the answers to necessary higher questions and willingly defers to another. If an educated elite fails to comprehend a higher question, does he then lose his sovereignty? And what if one smarter than him does so as well? The answer is no, because to be sovereign does not mean to possess a complete, correct, and self-determined opinion on all issues, but to possess an independent will which can freely associate and decide on how one should be governed. That Rousseau would have disputed my conclusion is a matter of historical argument; in the end, however, the implications of his statement that a “represented sovereign” is not free must be made clear.
[1]Marini, Frank. Midwest Journal of Political Science, Vol. 11, No. 4. (Nov., 1967), pp. 451-470.
[2] Rousseau, Jean-Jacques. The Social Contract. (New York: Dover Publications). p. 20
[3] From this point on, I will use the word “law” in the same sense that Rousseau uses it.
[4] Rousseau, p. 65
[5] Rousseau, p. 37-38
[6] In reality, the U.S. government does a lot of law-making of its own by morphing the meaning of the Constitution when it is convenient, in order to pass previously impassable decrees.
[7] Rousseau, p. 23
[8] Ironically, this conclusion could force Rousseau’s position to accept a direct participation model of democracy, which I just argued was not position taken in The Social Contract.