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.

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“Democracy” is a very messy word. It is frequently invoked in a political context as the object or ideological source of an action, generally for the reason that in the self-described “modern” world, democracy is the unquestioned political ideal. If what is meant by it is “popular sovereignty,” meaning that individuals must consent to being ruled in a particular fashion, then there is no problem with that proposition. Unfortunately, political concepts must be expressed in language, so it is no surprise that “democracy” suffers from constant use with different definitions, the result often being misunderstanding and abusive equivocation. A proclaimed enemy of democracy is not always evil, as much as an advocate of democracy is not always good. To resolve this problem, the next logical step is to figure out what democracy means, both substantively and morally.

Should we be asking, “how can we best achieve democracy?” or “how can we best use democracy?” A thorough clarification of the word is required prior to any further discussion. Simply defining democracy as “rule by the people” is woefully deficient: it says nothing about what, exactly, the people are ruling. There are two principal questions to ask of government, and thus two senses in which “democracy” can be used: what kinds of decisions must a government make, and how are those decisions to be made? Some definitions of democracy primarily refer to the former, holding that democracy is rule by the people over all things; some only describe the latter, imagining democracy as a process by which some conception of the good is achieved; and others describe a mix of both. To simplify discussion greatly, “democracy” will be treated as a factual set of procedural conditions, namely equal voting rights and majoritarian or pluralistic rule of any kind; reference to democracy as an intrinsic good will be labeled “normative democracy.”

With that in mind, the place of democracy in the world can be considered. In itself, democracy can not be good because there is no valid justification for such a claim. Similarly, government in general is merely a means to an end: the assurance of individual rights.[1] Democracy is one possible instrument by which the good government can be achieved, that has demonstrated itself to be effective in part; in no way, however, it is a necessary or sufficient condition for that achievement.

First, we must examine what holding democracy as an end in itself entails. If democracy is defined as a process or structure that meets certain conditions, then the essential claim is that no matter what the outcome of that process is, it is good so long as the process was conducted fairly (i.e. in accordance with democracy, which is intrinsically good). The first possible case of doing so, which is holding that there is a universal and timeless good in the procedural form of democracy, is the philosophical equivalent of believing that the consumption of cheese is a universal and timeless good. How a good of this kind can possibly be justified or metaethically described fundamentally boils down to some form of mysticism, an extremely uninteresting field of study (if studying is even the appropriate activity).[2]

The second case of intrinsically valuable democracy is one that supervenes on assumptions about the nature of humans and reality that lead to their respective moral conclusions. Primarily, the belief in the existence of a collective entity justifies believing that such an entity can possess properties like “preference” and “goodness.” Individuals are then beholden to this collective entity. Under this view, the repeated applications of democratic processes are the means by which individuals communicate their preferences, which are then aggregated into the collective preference, whose satisfaction constitutes the good. Under this conception, political activity is not just a means to an end, but an end in itself, because it realizes the intrinsic principles essential to society.

Some thinkers have taken the normative democratic approach. A “direct democracy” interpretation of Rousseau can be construed as holding democracy as an end in itself. He states, “… whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free…”[3] In other words, to be free is to abide by the general will. Part of following the general will comes in society finding it, through the ideal means of doing so: the full participation of the sovereign.[4] Rousseau’s belief in the importance of this democratic process being untainted by a voter’s “particular will” (self-interest) is reinforced by his belief that economic, social, and political classes must be eliminated in order to prevent conflicts of interest that inhibit the proper discovery of the general will. The society must also take measures such as censorship and the establishment of a civil religion in order to “socialize” its people, leading them to identify closely with their society, and thus the general will.

More generally speaking, how democracy attains its authoritativeness may explain its moral attractiveness. In Democracy in America, Alexis de Tocqueville explains how circumstances in America had led to the majority becoming “not only preponderant, but irresistible”:

The moral authority of the majority is partly based upon the notion, that there is more intelligence and wisdom in a number of men united than in a single individual, and that the number of legislators is more important than their quality. The theory of equality is thus applied to the intellects of men… Like all other powers… the authority of the many requires the sanction of time in order to appear legitimate.[5]

This argument for majoritarian rule is inherently informational, referring to the positive productive relationship between majorities and correct conclusions about the good. It assumes intellectual equivalence, a concept then extended by quantitative aggregation into conclusive superiority in numbers. Going further, Tocqueville cites another intuitive facet of democracy: “the moral power of the majority is founded upon yet another principle, which is, that the interests of the many are to be preferred to those of the few.”[6] In the same regard as the second, it assumes a substantive equality of interests which can be aggregated.

One possible function of democracy could be to find some proper course of collective action which takes into account equally the preferences of every voter, aggregating them into one “social preference.” The case for democracy seems to be made simply enough. However, this approach encounters problems predicating on the intuitive characteristics of democracy as described by Tocqueville. One on hand, the assumption of equality in intelligence is clearly flawed, and experience clearly shows that majorities are not always correct in matters of fact, even through time (e.g., the insistent disbelief of many Americans in evolution). On the other hand, the belief that the interests of the majority are more valuable is a concept with very narrow truth that has been extrapolated to encompass all things; the flaw, once again, lies in a broad assumption of “equality of interests.”

Except for the cases where the good of democracy is self-defining, there is nothing about democracy that guarantees the fulfillment of any conception of the good, much less that of individual rights. In the observant words of E.B. White, “democracy is the recurrent suspicion that more than half of the people are right more than half the time.” Indeed, there is no logical necessity linking “fair” democratic processes with “good” outcomes. One need only imagine a dictator ordering that all members of a certain ethnic group be killed, and then imagine a democratic assembly doing the same. On average, majoritarian rule may perform better, because power is decentralized across many individuals with diverse interests, but there is little to stop factions from forming to the detriment of the minority.

In contrast to de Tocqueville’s account, Cass Sunstein would argue against time-endorsed majorities as bearing moral authority. His book, Why Societies Need Dissent, discusses the pitfalls caused by conformity in all settings, as well as why it happens: “for each of us, conformity is often a sensible course of action… one reason we conform is that we often lack much information of our own, and the decisions of others provide the best information we can get.”[7] The initial presence of a vigorous and significant group of persons advocating a certain position may begin a self-perpetuating cycle of conformity. Thus, the long-standing opinions of the group are likely not to be based on any intellectual merit, but simply by social pressures.

Furthermore, the idea of “one man, one vote” (i.e. equality of interests) can not be reasonably separated from the arena of issues upon which that vote has an effect. It is the abstraction of certain qualities from an individual that gives him the right of participation in the democratic process. However, these qualities relate specifically to what rights the individual forfeits upon choosing to enter civil society. A man, for example, will forfeit his right to use unlimited violence at his own discretion, and subject it to the democratic process. The belief in total majoritarian rule would imply that minorities would have consented to control by the democratic process over all things, such as property. No individual, such as a very talented and innovative person, would consent to rule by society over the totality of his holdings (this being a complete losing proposition for him). Moreover, no force or right of nature could require him to comply with the majoritarian wishes of humanity. Therefore, the idea that the interests of each other individual with regard to his property are equal, summed together, and held against him righteously is pure fiction.[8]

Democracy does not inevitably achieve the ends of individual rights. It may happen to be that in an anarchic state of nature, a group of persons in proximity choose to never initiate violence. Likewise, it is possible that a dictator may opt to respect individual rights.

Finding the correct political system does not depend on some predetermined plan or construction, but in experience. The key to fulfilling the protection of individual liberty lies not necessarily in “democracy” of a particular sort, but in some of its abstract components. For one, individuals must have some kind of input of their beliefs and preferences into how they will be governed in order for that governance to be effective. The manifestation of this input, however, can vary widely depending on the circumstances. Beyond the discovery of the foundational principles of governance is their implementation. The reality we live in is one of scarce resources, and our nature is one of fallibility. Choices about how to enforce laws is subject to judgments of what possible actions best realize those principles. In a small, walled city-state, a convention of all citizens at some central location can be an effective way of translating each person’s individual preferences into a city-wide policy. In a massive country like the United States, this is impossible, yet at the same time decisions involving the entire country must still be made- even if this entails a lack of direct democratic participation.

In On Liberty, John Stuart Mill reflects this sentiment. Though Mill is a utilitarian- and thus considers the individual rights compromisable in the rare situation where doing so leads to the greatest happiness- he holds a similar line of thought: social institutions exist to fulfill the good (in his case, the greatest happiness principle), and thus they need to be adapted to the context in which they operate.[9] Democracy as some predetermined or fixed form of institution is unlikely to maximally attain individual rights; it is variations on it and intermixing its processes with institutional structures to check abuses of its power that achieve good government.

One hypothetical situation gives insight into the true role of democracy. Suppose there were a “machine of goodness” built by a reputable and objective scientist, into which some conception of the good and information about contemporary circumstances (such as the amount of available resources, what kinds of problems are common, etc.) were programmed. The output of the machine would be the ideal arrangement of those resources to fulfill that good. Would anyone choose democracy as a choice process over that machine? When there is a negative conception of the good as is the case with individual rights, the function of democracy is to assure that rights are best respected by allowing the input of many individuals in the context of resource scarcity and limited information. Its theoretical purpose, however, is not to be an excuse for individuals to manifest their subjective preferences in government. Democracy as an end in itself is, at its best, a stolen concept.

[1] I do not intend to set out and prove individual rights, but at least use them as imperatives by which government must operate.

[2] A detailed explanation of why intrinsic values as the ones mentioned are nonsense can be found in “The Subjectivity of Values” in J.L. Mackie’s book, Ethics: Inventing Right and Wrong.

[3] Rousseau, Jean-Jacques. On the Social Contract: Book I. http://www.constitution.org/jjr/socon_01.htm (Accessed April 23, 2007)

[4] Of course, Rousseau could be interpreted otherwise, as perhaps holding the general will as the conception of the good which does not necessarily have to be found via democracy.

[5] Tocqueville, p. 112

[6] Ib. at 112-113

[7] Sunstein, p. 5

[8] This is a quick and dirty assessment of why majority rule over everything makes no sense when combined with individual sovereignty.

[9] Mill, p. 262

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Book I: the origin of political authority and the social contract

In Book I, Rousseau begins his exploration of politics by pondering the source of the legitimacy of political authority. He rejects that its source is found in nature, because such a position implies the inherent natural superiority of the rulers over the ruled, though the superiority that may exist is only sustained by force. In turn, he argues that force is not the basis for legitimacy either: the idea that “might makes right” is nonsensical because it can not imply that the less strong “ought” to follow the stronger, since who is stronger is always determined by who triumphs. There would be no political authority since those who can do, will do. Instead, legitimate political authority is based on a kind of “social contract” created between society’s members. Unlike the argument of Grotius, which proposed a kind of covenant between king and people based on “a right to slavery,” one’s freedom can never be surrendered in a fair exchange. Furthermore once freedom is surrendered, then all rights are forfeited which eliminate any demand for something in return.

Why should such a contract ever be necessary? In short, there comes a point in the state of nature at which society must be formed in order for mankind to survive. The social contract’s purpose is to resolve the problem of how to bind people to each other without infringing upon their freedom, and it does this by requiring the unconditional surrender of the individual’s freedom to the whole community. The important implications of this definition are that the contract will impose the same conditions for all, creating no interest for one person making the conditions difficult for others; there will be no rights that remain that stand in opposition to the state, because the contract is formed unconditionally; and finally, because each person enters the contract on equal terms, no person loses their natural freedom. The ultimate reduction of the social contract can be described thus: “Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.”[1] The new entity, the whole, that is formed as a result of this contract comes to be known as the “Republic” or “body politic,” or, depending on the context, the State, the Sovereign, or the Power. Those who formed the contract come to be collectively known as the people; when sharing in the sovereign power, citizens; and in being under the laws of the state, subjects. The contrast between nature and civil society is important here: though in joining the contract we lose the physical freedom to act upon our personal appetites, we gain liberty via the limitations of reason and the general will being placed upon our behaviors.

Book II: Rousseau’s view on law

In book II, Rousseau’s conception of the state begins with the idea that society functions in correspondence to the interests that people hold in common. Hence, the ultimate end of any state is “the common good.” Acting on the general will expressed by the Sovereign is the only way to achieve this common good. Incidentally, the general will can never coincide with a particular will.

The expression of the general will ultimately takes the shape of law. Law must be made by the people as a whole (i.e. made by the sovereign) and applicable to the whole. But how can the people, especially a large number of them, jointly create a set of laws? Rousseau proposes the lawgiver: an intelligent and selfless individual who will create laws in an unbiased fashion, who lies outside the authority of the Sovereign. However, Rousseau himself admits that “Gods would be needed to give men laws.” Furthermore, what will compel people to follow the laws? Besides textbook coercion, such as the death penalty for those who break the law and thus break the social contract, Rousseau suggests that an appeal to the supernatural origins of laws (much as Moses claimed that the Ten Commandments were given by God) is one way of convincing men to follow them.

The end of Book II consists of Rousseau’s exploration of the kinds of circumstances under which law is most effectively made, specifically in reference to the people for whom the law is to be made, and the nature of those laws. For example, he explains that states are ideally small-to-medium-sized: small enough to be effectively manageable, but large enough so as not to be overrun by neighboring states. The creation and implementation of laws must be timed perfectly, as a people may not yet be ready to be guided, or may have become prejudiced and resistant to the positive changes brought about by good laws. Also, the state in which laws are being established must be in a condition of at least relative peace and plenty, because of the temporary vulnerability and instability caused by a period of laws being implemented.

The goal of any system of law is reducible to two ends: liberty and equality. Here (chapter 11), equality is understood to mean not the complete absence of differences in wealth, but the absence of such differences that would damage the balance of citizens in the state: “but that power shall never be great enough for violence, and shall always be exercised by virtue of rank and law; and that, in respect of riches, no citizen shall ever be wealthy enough to buy another, and none poor enough to be forced to sell himself.” Overall, the general criteria for how laws ought to be made depend on circumstances that differ from people to people and place to place.

Book III: Rousseau’s view on government

At the beginning of Book III, Rousseau explains the executive powers of government in terms of will and strength:

Every free action is produced by the concurrence of two causes; one moral, i.e., the will which determines the act; the other physical, i.e., the power which executes it… The body politic has the same motive powers; here too force and will are distinguished, will under the name of legislative power and force under that of executive power.[2]

The government is, importantly, to be distinguished from the Sovereign; in fact, confusion of the two is dangerous. The government deals with particulars (decrees) while the sovereign deals with the general (laws). Somewhat similar to the contract in Hobbes, the government itself is not a party to the social contract; somewhat different from Hobbes, this is because the government is an intermediary body that is created by the general will and can be freely disbanded by the general will.

As to possible forms of government, there are three primary kinds: democracy, when all or almost all the citizens are magistrates; aristocracy, where less than half are magistrates; and monarchy, where few or one are magistrates. However, there is not one universally superior form of government. In the previous chapter, Rousseau notes that the larger the population of a state, the fewer magistrates there should be. Hence, large states are best suited to monarchy, medium to aristocracy, and small to democracy. Though he personally preferred democracy, Rousseau expresses ambivalence toward democracy as well as monarchy. While he explains his concerns about monarchy’s dangerous efficiency and potential for corruption, he also claims, “there has never been a true democracy, and there never will be.” Only small states with simple and unambitious citizens could remain stable under democratic rule. Overall, though simpler forms of government are preferable to Rousseau, he suggests that mixing forms of government may dissipate the powers of the government relative to the Sovereign.

The Sovereign can maintain itself by meeting in periodic assemblies. Though an impractical demand on the face of it, ancient cities such as Rome managed to do it to some degree. The assemblies are critical because within them, all citizens are as powerful as the magistrates. Because of this, the government may take actions to dissuade such assemblies, which over time may erode the freedom and authority of the Sovereign. At this juncture, Rousseau makes sure to point out that sovereignty can not be represented: “…The moment a people allows itself to be represented, it is no longer free: it no longer exists.”

As part of a set of entailments of the general will, the latter half of Book IV expresses some specific ideas Rousseau has about the state. In some cases, dictatorship is necessary to avert the collapse the state, though the dictator does not represent the people or the laws; the dictator only acts in accordance with the general will so long as the avoiding the collapse of the state is in it. The establishment of a censor’s office is also put forward, as the vanguard of public opinion. Because public opinion is connected to public morality and virtue, and those are connected to law, the censor’s office upholds the laws by influencing public opinion.  Finally, Rousseau recommends that people be free to pursue religion as they please so long as it does not conflict with public interest, but also recommends that they be required to adhere to a civil religion with essential qualities: belief in the existence of a just god, belief in the afterlife, faith in the sanctity of the social contract and its laws, and emphasis on tolerance to reduce civil strife.

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