The Cambridge Companion to Rousseau's Social Contract (Cambridge Companions to Philosophy) 1108839304, 9781108839303

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the cambridge companion to

ROUSSEAU’S SOCIAL CONTRACT What is freedom? What is equality? And what is sovereignty? A foundational text of modern political philosophy, Rousseau’s Social Contract has generated much debate and exerted extraordinary influence not only on political thought, but also modern political history, by way of the French Revolution and other political events, ideals, and practices. The Social Contract is regularly studied in undergraduate courses on philosophy, political thought, and modern intellectual history, as well as being the subject of graduate seminars in numerous disciplines. The book inspires an ongoing flow of scholarly articles and monographs. Few texts have offered more influential and important arguments in political philosophy than Rousseau’s Social Contract, and in this new Cambridge Companion, a multidisciplinary team of contributors provides new ways to navigate this masterpiece of political philosophy – and its animating questions. david lay williams is Professor of Political Science at DePaul University. He is the author of Rousseau’s Platonic Enlightenment (2007) and Rousseau’s “Social Contract”: An Introduction (2014), as well as the coeditor of The General Will: The Evolution of a Concept (2015). His “The Greatest of All Plagues”: How Economic Inequality Shaped Political Thought from Plato to Marx will be published by Princeton in 2024. matthew w. maguire is Associate Professor of History and Catholic Studies at DePaul University. He is the author of The Conversion of Imagination: From Pascal through Rousseau to Tocqueville (2006) and Carnal Spirit: The Revolutions of Charles Péguy (2019), in addition to essays about diverse topics in European intellectual history. He is now writing a book about autonomy and freedom.

other volumes in the series of cambridge companions

ABELARD Edited by jeffrey e. brower and kevin guilfoy ADORNO Edited by thomas huhn ANCIENT ETHICS Edited by christopher bobonich ANCIENT GREEK AND ROMAN SCIENCE Edited by liba taub ANCIENT LOGIC Edited by luca castagnoli and paolo fait ANCIENT SCEPTICISM Edited by richard bett ANSELM Edited by brian davies and brian leftow AQUINAS Edited by norman kretzmann and eleonore stump THE NEW CAMBRIDGE COMPANION TO AQUINAS Edited by eleonore stump and thomas joseph white ARABIC PHILOSOPHY Edited by peter adamson and richard c. taylor HANNAH ARENDT Edited by dana villa ARISTOTLE Edited by jonathan barnes ARISTOTLE’S “POLITICS”

Edited by marguerite deslauriers and paul

destre´e ATHEISM Edited by michael martin AUGUSTINE 2nd edition Edited by david meconi and eleonore stump BACON Edited by markku peltonen BERKELEY Edited by kenneth p. winkler BOETHIUS Edited by john marenbon BRENTANO Edited by dale jacquette CARNAP Edited by michael friedman and richard creath CICERO’S PHILOSOPHY Edited by jed w. atkins and thomas be´natouı¨l CIVIL DISOBEDIENCE Edited by william e. scheuerman COMMON-SENSE PHILOSOPHY Edited by rik peels and rene´ van woudenberg THE COMMUNIST MANIFESTO Edited by terrell carver and james farr CONSTANT Edited by helena rosenblatt CRITICAL THEORY Edited by fred rush DARWIN 2nd edition Edited by jonathan hodge and gregory radick SIMONE DE BEAUVOIR Edited by claudia card DELEUZE Edited by daniel w. smith and henry somers-hall DEMOCRACY IN AMERICA Edited by richard boyd DESCARTES Edited by john cottingham DESCARTES’ “MEDITATIONS” Edited by david cunning Continued at the back of the book

The Cambridge Companion to

ROUSSEAU’S SOCIAL CONTRACT Edited by David Lay Williams DePaul University Matthew W. Maguire DePaul University

Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108839303 DOI: 10.1017/9781108989770 © David Lay Williams and Matthew W.Maguire 2024 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2024 A catalogue record for this publication is available from the British Library A Cataloging-in-Publication data record for this book is available from the Library of Congress ISBN 978-1-108-83930-3 Hardback ISBN 978-1-108-97059-4 Paperback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

In memory of Patrick Riley (1941–2015)

Contents

List of Contributors

page ix

Acknowledgments

1 Introduction m a t th e w w . m ag u i re a n d d a v i d l ay w i ll i a m s

xiii

1

2 “Every Legitimate Government Is Republican”: Rousseau’s Debt to and Departure from Montesquieu on Republicanism j o h n t . s c o tt 3 What If There Is No Legislator? Rousseau’s History of the Government of Geneva

10

40

c h ri s t o p h e r ke l l y 4 Rousseau’s Republican Citizenship: The Moral Psychology of The Social Contract r o bi n d o u g l a s s 5 Rousseau’s Negative Liberty: Themes of Domination and Skepticism in The Social Contract

64

88

michael locke mclendon 6 Rousseau’s Ancient Ends of Legislation: Liberty, Equality (and Fraternity)

113

d a vi d l a y w il lia m s 7 Property and Possession in Rousseau’s Social Contract r af e e q h a s a n

138

vii

viii contents

8 Political Equality among Unequals

158

m e l i s s a s ch w ar t z b e r g 9 On the Primacy of Peoplehood: Nations and Nationalism in Rousseau’s Social Contract r i c h a rd b o y d 10 Rousseau on Voting and Electoral Laws a le x a nd r a o pr e a 11 On the Possibility of a Modern Republic: Rousseau and the Puzzle of the Roman Republic g e ne v i e` v e r o u s s e l i e` re

179

207

223

12 Rousseau’s Case against Democracy c e´ l i n e s p ec t o r

252

13 Rousseau’s Dilemma, or “Of Civil Religion”

273

s t e v e n b . s m i th 14 Entreating the Political: Politics and Theology in Rousseau’s Social Contract matthew w. maguire 15 Civil Religion and Political Unity: Social Contract IV.8

293

321

r y an p a tr i c k h an l e y Bibliography

339

Index

356

Contributors

Richard Boyd is Associate Professor of Government and Director of the Tocqueville Forum for Political Understanding at Georgetown University. He is author of Uncivil Society: The Perils of Pluralism and the Making of Modern Liberalism (Lexington Books, 2004), coeditor

of

Tocqueville

and

the

Frontiers

of

Democracy

(Cambridge University Press, 2013), and editor of the Cambridge Companion to “Democracy in America” (Cambridge University Press, 2022), as well as more than fifty journal articles and book chapters on the intellectual history of liberalism. Robin Douglass is Professor of Political Theory in the Department of Political Economy, King’s College London. He is the author of Rousseau and Hobbes: Nature, Free Will, and the Passions (Oxford University Press, 2015) and Mandeville’s Fable: Pride, Hypocrisy, and Sociability (Princeton University Press, 2023). Ryan Patrick Hanley is Professor of Political Science at Boston College. A specialist on the political philosophy of the Enlightenment period, he is the author of Adam Smith and the Character of Virtue (Cambridge

University

Press,

2009),

Love’s

Enlightenment:

Rethinking Charity in Modernity (Cambridge University Press, 2017), and Our Great Purpose: Adam Smith on Living a Better Life (Princeton, 2019). His most recent books are The Political Philosophy of Fénelon and a companion translation volume, Fénelon: Moral and Political Writings, both published by Oxford in 2020.

ix

x list of contributors Rafeeq Hasan is Associate Professor of Philosophy at Amherst College. As a scholar of political philosophy and its history, he thinks in particular about the themes of freedom, property, and equality. His work has appeared in venues including The Philosophical Review, the Canadian Journal of Philosophy, and the European Journal of Philosophy. His current book project, Can Kant Solve the Poverty Problem?, is a monograph that revives Kant’s discussion of poverty in the Doctrine of Right for contemporary debates about distributive justice. Christopher Kelly is Emeritus Professor in the Department of Political Science at Boston College. He is the author of two books and numerous essays on Rousseau and editor (with Roger D. Masters) of The Collected Writings of Rousseau (University Press of New England). Matthew W. Maguire is an intellectual historian. In addition to various essays and articles, he is the author of The Conversion of Imagination: From Pascal through Rousseau to Tocqueville (Harvard University Press, 2006) and Carnal Spirit: The Revolutions of Charles Péguy (University of Pennsylvania Press, 2019). He was co-editor of Rousseau: Fundamental Political Writings (with David Lay Williams, Broadview Press, 2018) He is Associate Professor of Catholic Studies and History at DePaul University. Michael Locke McLendon is Professor of Political Science at California State University–Los Angeles. He is the author of The Psychology of Inequality: Rousseau’s Amour-Propre (University of Pennsylvania Press, 2018), as well as numerous articles and book chapters on modern political thought. Alexandra Oprea is Assistant Professor of Philosophy at the University at Buffalo. She is currently finishing a book about children’s rights, education, and political status in modern political thought. Her work

list of contributors xi on Rousseau and Adam Smith has appeared in Polity, Review of Politics, and the Journal of Politics. Geneviève Rousselière is Assistant Professor of Political Science at Duke University. Her research interests include republican political theory, the history of political economy, feminism, and eighteenthand nineteenth-century political thought. She is the author of Sharing Freedom: Republicanism and Exclusion in Revolutionary France (Cambridge University Press, 2024). Melissa Schwartzberg is Silver Professor of Politics at New York University. She is the author of Democracy and Legal Change (Cambridge University Press, 2007) and Counting the Many: The Origins and Limits of Supermajority Rule (Cambridge University Press, 2014), as well as several articles and book chapters on Rousseau’s political thought. She is the recipient of fellowships from the Mellon Foundation, the Guggenheim Foundation, and the American Council of Learned Societies. John T. Scott is Professor of Political Science at the University of California–Davis. He received his PhD from the University of Chicago in 1992. Most of his research is on the thought of JeanJacques Rousseau, and he is past president of the Rousseau Association. He is the author of Rousseau’s God: Theology, Religion, and the Natural Goodness of Man (University of Chicago Press, 2023), Rousseau’s Reader: Strategies of Persuasion and Education (University of Chicago Press, 2020), The Philosophers’ Quarrel: Rousseau, Hume, and the Limits of Human Understanding (Yale University Press, 2009), and The Routledge Guide to Machiavelli’s “The Prince” (Routledge, 2016). He is the editor of Jean-Jacques Rousseau: Critical Assessments (Routledge, 2006) and Rousseau and l’Infâme (Brill, 2009). He has translated and edited the Essay on the Origin of Languages and Writings Related to Music (Dartmouth College Press, 1998) and Jean-Jacques Rousseau: Major Political Writings (University of

xii list of contributors Chicago Press, 2012), in addition to numerous articles in leading journals and chapters in edited volumes. Steven B. Smith is Alfred Cowles Professor of Political Science at Yale University. He has written books on Hegel, Spinoza, Leo Strauss, and Isaiah Berlin. His most recent book, Reclaiming Patriotism in an Age of Extremes, was published by Yale in 2021. Céline Spector is a professor in the Philosophy Department at Sorbonne University. Her research includes work in modern and contemporary political theory, especially the French Enlightenment, Montesquieu, Rousseau, and their legacies. Among her recent publications are Rousseau (Polity, 2019), Rousseau et la critique de l’économie politique (PU Bordeaux, 2017), Rousseau et Locke: Dialogues critiques, with J. Lenne-Cornuez (Oxford, 2022), and Émile: Rousseau et la morale expérimentale (Vrin, 2022). David Lay Williams is Professor of Political Science at DePaul University. He is the author of Rousseau’s Platonic Enlightenment (Pennsylvania State University Press, 2007) and Rousseau’s “Social Contract”: An Introduction (Cambridge University Press, 2014), as well as “The Greatest of All Plagues”: How Economic Inequality Shaped Political Thought from Plato to Marx (Princeton University Press, 2024). He was also the coeditor of The General Will: The Evolution of a Concept (with James Farr, Cambridge, 2015) and Rousseau:

Fundamental

Political

W. Maguire, Broadview Press, 2018).

Writings

(with

Matthew

Acknowledgments

David Lay Williams would like to thank his wife and son, Jennifer and Benjamin, for their enduring support and heroic patience in allowing him to work on this project while juggling many other responsibilities. He would also like to acknowledge his great regret that this project was not undertaken while Patrick Riley was alive to have participated. But Patrick’s remarkable contributions to Rousseau scholarship and his sustained commitment to the volunté générale as a way of life were constant inspirations throughout the entire process of assembling this volume. Matthew Maguire would like to thank his colleagues, friends, and family for steady patience and good will amidst extended spells of writing and editing. He is also deeply grateful to the scholars who first introduced him to the philosophical, political, and historical questions animating this project, especially Patrice Higonnet, as well as the late Mark Kishlansky. We would both like to express our gratitude to our contributors, whose essays exceeded even our high expectations. We also thank DePaul University for supporting this project. Finally, we thank our editor, Robert Dreesen, as well as the whole staff at Cambridge University Press. Robert’s enthusiasm for this project was essential from the project’s beginning to its end.

xiii

1

Introduction Matthew W. Maguire and David Lay Williams

Reasoned and impassioned controversy have accompanied The Social Contract since its publication in 1762. Once the book entered conversations about the foundations and ends of modern politics, it never left them. Immanuel Kant’s debt to Rousseau, for example, was deep and multidimensional. He drew many of his own ethical and political arguments from contemplating Rousseau’s philosophy, including the general will and other ideas that extended well beyond the portrait of Rousseau that famously adorned his otherwise sparsely decorated study. Kant’s engagement is the beginning of a long line of formidable thinkers coming to terms with The Social Contract. Madame de Staël and Benjamin Constant reflected at length and wrote about Rousseau’s most famous work of political philosophy. G. W. F. Hegel drew upon a central concept of Rousseau’s Contract – the general will – repeatedly, referring directly to Rousseau in order to give a critical if nuanced account of it. A general fascination with The Social Contract soon travelled beyond Europe, and also beyond the boundaries of political philosophy strictly conceived; it inspired conversations about sovereignty and freedom around the world. In early nineteenth-century Latin America, for example, The Social Contract became one of the foremost books through which the generation that won independence thought about the possibilities available to their new nations.1 In the early twentieth century, readers in China could choose among several recent translations of The Social Contract, and the book remained a flashpoint of political controversy – not least because of Mao Zedong’s avowed interest in Rousseau’s political thought – to the end of the century.2 1

2 matthew w. maguire and david lay williams Rousseau’s political philosophy thus remained a global phenomenon throughout the twentieth century, and reading it in no way safely settled into the role of a venerable classroom exercise. In the 1950s, Fidel Castro said that he carried a copy of The Social Contract with him while fighting against Batista’s government.3 In Europe, intellectuals such as Isaiah Berlin, seeking the roots of Europe’s twentieth-century catastrophes, turned anxiously to The Social Contract, and Berlin in particular found it to be the product of a “lunatic” beset by an “insane inner vision.”4 In a very different way, John Rawls – whose work testifies to a serious engagement with Rousseau’s thinking – acknowledged that The Social Contract stood very high as a supreme achievement in political philosophy, “definitive of the contract tradition,” and in fact within that field was “the greatest work written in French.”5 There was little in Rousseau’s background that promised a continuous posterity of 250 years and counting, encompassing voluminous commentary, deep identification, and controversy. The son of a modestly comfortable watchmaker in early eighteenth-century Geneva, he long remained fascinated with his native city, and with it, its republican government and its history of distinctive communal institutions. Yet throughout his adolescence and beyond, he wandered far from home, in and out of various accommodations, religious communities, apprenticeships, trades, and professions, intensely ambitious for intellectual achievement but not altogether focused as to its form (his early efforts tended toward music theory and composition, and occasional drafts of plays). Without formal education, Rousseau embarked upon years of reading with a pronounced philosophical bent, from Plato and Augustine to Descartes, Hobbes, and Locke, and eventually found his way to Paris. In 1750, then approaching his forties, Rousseau at last found his voice and philosophical sensibility, if not his fully developed ideas. They appeared in his first major work, the Discourse on the Sciences and the Arts, which won him a prize from the Academy of Dijon. In it, he declared that progress in the sciences and the arts – in many ways

introduction 3 the Enlightenment itself – did not herald a universal improvement in the happiness and moral caliber of human beings, but rather an ongoing decline, in which people were forced to pretend to be what they were not, in which the communal solidarity of cohesive communities was lost, and in which happiness and virtue alike were diminished by identifying a good life with the possession of extraordinary talents and remarkable worldly success, especially wealth – good fortune that would forever be unavailable to all but a small portion of people in any place or historical period. With this succès de scandale, Rousseau quickly became one of the most original, celebrated, and controversial thinkers and writers of the eighteenth century. In the course of a dozen years, he wrote his Discourse on the Origin of Inequality and his philosophical-fictional exercise, Emile, as well as one of the best-selling novels of the eighteenth century, the epistolary romance (or antiromance) Julie. The same year, he published the fragment of a larger work of political philosophy that he had destroyed: The Social Contract. He would write further about political theory in distinctive nations or communities – in Poland and Corsica, not least in Geneva – but this “fragment” remained the most influential statement of Rousseau’s political philosophy. In the years following this period of furious writing and publication, Rousseau sunk into isolation and rejection. That turn had many sources: a personal disposition prone to extremes of trust and mistrust, the deepening resentment expressed by other prominent writers of the Enlightenment toward a writer who elicited fascination among readers, but was incorrigibly skeptical about much of the conventional wisdom circulating among his eminent contemporaries. That his five children had been abandoned to be raised as foundlings was increasingly known, and Rousseau himself wrote defensively (and with a palpable if rather inert guilt) about it. For all that, it was The Social Contract itself that prompted a substantial portion of Rousseau’s increasing alienation from contemporary life. In particular, its forceful, even incendiary claims

4 matthew w. maguire and david lay williams about Christianity – among others, that “true Christians are made to be slaves” – incurred the condemnation of religious and political authorities in both Paris and Geneva. The Social Contract was now officially designated as impious and immoral, and this in turn precluded its author residing in either his native or his adopted city. He soon returned to the peripatetic life he had led as a youth – but now well into middle age, that life had few of the appealingly picaresque qualities it had promised thirty or forty years earlier. He moved from place to place once more and turned increasingly to autobiographical writing, including his Confessions, the Dialogues, and the unfinished Reveries of the Solitary Walker. He remained internationally celebrated and despised until his death in 1778. Given the extraordinary impact of The Social Contract, this volume seeks to understand its arguments, language, context, and implications from different disciplines and in response to different kinds of questions. It intends to guide readers along diverse paths of enquiry, all of which can enrich our understanding of an exceptionally rich and controversial book. Among those paths, some address with particular care the sources of Rousseau’s thinking about politics, justice, sovereignty, and democracy. John T. Scott, for example, investigates Rousseau’s connection to Montesquieu (Chapter 2). In his account, Rousseau creatively refines Montesquieu’s account of republican democracy, opening a space in which “democratic sovereignty” can exist (and persist) as a good separate from “democratic government.” Christopher Kelly explores Rousseau’s account of the legislator, an extraordinary figure who gives a stable character to a people by giving it shared assumptions and points of reference on questions of manners, morals, and religion (Chapter 3). The concept of the legislator in The Social Contract seems so extraordinary that many have wondered whether it functions in the text as an indicator that Rousseau’s polity is primarily a theoretical exercise. Yet Kelly argues that in Rousseau’s own History of the Government of Geneva,

introduction 5 Rousseau traces the development of Genevan mores and institutions in which, without a legislator in the strict Rousseauian sense (and often before Calvin), Geneva became meaningfully free. The Social Contract is also a work about political psychology and the nature of community. In his essay, Robin Douglass (Chapter 4) takes the status of The Social Contract as an incomplete work seriously, and argues that the distinctively Rousseauian “moral psychology” of citizenship that complements the Social Contract is best found not in Rousseau’s famous work of education, Emile, but rather in Rousseau’s other political writings, above all the Discourse on Political Economy. In it, Rousseau’s account of virtue and amour propre (a kind of expansive self-love connected to how we are recognized and perceived by others) helps us to understand exactly what The Social Contract’s notion of citizenship demands, and what sort of psychology allows the general will to function. Michael Locke McLendon thinks through Rousseau’s account of freedom, with particular attention to critics – most notably Isaiah Berlin – who found in Rousseau a forerunner to twentieth-century totalitarianism (Chapter 5). McLendon argues that Rousseau is in fact far more interested in protecting “negative liberty” from diverse and often subtle forms of coercion. In his interpretation, far from offering some comprehensive and unitary account of the good, Rousseau seeks to protect a more autonomous freedom from the conditions that would compromise or destroy it; foremost among them is inequality. Inequality is among the conditions that The Social Contract identifies as especially dangerous for the wise constitution of a free people, and for its ongoing flourishing – or disintegration. David Lay Williams’ essay (Chapter 6) uncovers this argument as a neglected dimension of the Contract: that is, that Rousseau is acutely aware of the dangers that economic inequalities pose for a free community. Radically unequal communities are ill suited to receive a free constitution, and if inequality is subsequently introduced, republics are increasingly undone, since those constituting the sovereign people now have fundamentally different interests and no longer conceive

6 matthew w. maguire and david lay williams themselves as equal citizens responsible for expressing the general will. Williams argues that The Social Contract’s arguments about the perils of inequality draw heavily from Rousseau’s readings of Plutarch and Plato, and yet are not limited by them. Rousseau understands that modern notions of merit have changed the way that inequality is maintained and justified, as well as its effects upon those citizens it leaves behind. Rafeeq Hasan presents a careful inquiry into The Social Contract’s arguments about property (Chapter 7). For Hasan, Rousseau works to reconcile conventionalist and natural-rights thinking about property, noting that the Genevan distinguishes carefully between what one ought to do, and what one has a right to do. These notions lead us to understand the particular demands of citizenship, as Rousseau understands them. Melissa Schwartzberg’s essay poses the question of how The Social Contract justifies its commitment to a specifically political equality, given the presence of various forms of inequality among citizens (Chapter 8). In Schwartzberg’s account, Rousseau sees the people’s exercise of sovereignty as itself a kind of education in political equality. The general will is expressed not through clever argument or other forms of political action that might reveal different forms of inequality, but rather through simple, direct processes of deliberation and voting that depend only on a basic “threshold” of political competence. Yet even at this threshold, Rousseau at times reveals “failures of imagination, compassion, and respect.” One question that attends many readings of The Social Contract is precisely how the origins and ongoing sources of cohesion within a political community come to be, and how they are best maintained. For Richard Boyd, Rousseau is neither a romantic, organic nationalist nor a partisan of individualist, contract-theory accounts of how political bodies conceive and sustain themselves (Chapter 9). Rousseau instead understands that certain unifying bonds are required before a government can be instituted, and before the appearance of a legislator. Yet he also recognizes that the very

introduction 7 forces that bring a community closer together – including language and collective memories, as well as “national glory” and religion – are also the ones that can create fierce, internecine divisions within a given political body, and jeopardize its peaceful relations with other political communities. While The Social Contract engages questions of history, property, and inequality, it is also addressed to questions of political ordering and electoral procedure. Alexandra Oprea explores Rousseau’s thinking about voting (Chapter 10). She shows that Rousseau devoted careful thought to how procedures for suffrage and elections (including their order and timing) could forestall the decline

of

republican

government

and

popular

sovereignty.

Rousseau’s use of historical examples like Venice and Geneva – and above all ancient Rome – often move in this direction, and make The Social Contract sensitive both to how diverse historical and political conditions shape – and yet can also be shaped by – the manner, form, and sequence of elections and voting. Geneviève Rousselière provides a careful reading of Rousseau’s republican commitments, the kind of republicanism he supports, as well as its supporting conditions (Chapter 11). For Rousselière, Rousseau is not, as a recent scholar has argued, an “aristocratic” or “plutocratic” republican, but rather an advocate of true popular sovereignty, even if that sort of free society requires a certain sensitivity to circumstances and history in order to flourish. Furthermore, unlike many of his eighteenth-century contemporaries, Rousseau did not believe that small states were the natural home of republican government, and he relies heavily upon the example of Rome precisely to show how republicanism can exist in large states. The question of Rousseauian popular sovereignty and its relation to government receives a new reading from Céline Spector (Chapter 12). She argues that a democratic government is not only less than ideal for Rousseau, but is in fact the worst form of government, even as popular sovereignty is unambiguously affirmed throughout the book. For Spector, Rousseau, far from being a sort of

8 matthew w. maguire and david lay williams inchoate proto-Kant, is in fact more attentive than Kant to the multiplicity of forces and aspirations in actual politics. He is a thinker with which contemporary political theorists ought to work, operating with a dual commitment to the sovereignty of the people and a kind of aristocracy of merit. Rousseau’s thinking about religion engages several contributors to this volume. Steven Smith finds in Rousseau an account of civil religion– and the political necessity thereof– that is far from being “merely” theoretical; drawn from his readings of Montesquieu and especially Machiavelli, through analogy if not homology, Smith argues that it is a relatively gentle form of this civil religion that has been the presiding civic religion of the United States, finding perhaps its most powerful expression in the civil-religious thinking of Abraham Lincoln (Chapter 13). Matthew W. Maguire explores The Social Contract’s anomalous presence in Rousseau’s work (Chapter 14). After working through the book’s political categories, the essay describes how Rousseau finds in Christianity an insuperable obstacle to political flourishing; it is this realization that leads Rousseau to abandon The Social Contract. But first, in an effort to escape what he takes to be the Christian enclosure and bifurcation of politics, Rousseau tried to bypass it through characteristically modern figurative economies and orders of metaphor that are only apparently secular. In his essay, Ryan Patrick Hanley works with Rousseau’s much-discussed chapter on Civil Religion and argues that it hopes to find in religion both a source of political justice and stability without intolerance and interminable conflict (Chapter 15). By analyzing Rousseau’s account of “the religion of man” as opposed to the “religion of the citizen,” Hanley shows how Rousseau’s civil religion hopes to surmount the paradoxes in his account of different varieties of historical religion, in which questions of truth and political utility, of peace and justice, are both entwined and separated from one another in potentially positive and yet sometimes destructive ways.

introduction 9 The fourteen essays in this volume move in diverse directions and traverse political philosophy, intellectual history, questions of political procedure, moral psychology, and political economy in order to better understand The Social Contract in full. As our own historical moment reopens so many political questions that not long ago seemed lastingly settled, this volume seeks to ask political questions with Rousseau in very different ways, to contribute to a constructive unsettling that helps us to understand some long-standing questions of political philosophy anew.

notes 1. See Miller 2016, 114–35. 2. See van Dongen and Chang 2017, 1–13. 3. O’Hagan 1978, 19. 4. Berlin 2002, 43. 5. See Rawls 1971, 11 n. 4; Rawls 2008, 191. The latter passage quoted in Simpson 2019, 186.

2

“Every Legitimate Government Is Republican” Rousseau’s Debt to and Departure from Montesquieu on Republicanism John T. Scott

When Rousseau published the Social Contract in 1762, there was no more illustrious authority on politics than Baron Montesquieu. Montesquieu’s Spirit of the Laws (De l’esprit des lois) of 1748 fashioned the landscape of political thought over the next several decades and more, not just in France but across Europe and beyond to the shores of America. As Judith Shklar explains: “Montesquieu did for the latter half of the eighteenth century what Machiavelli had done for his century, he set the terms in which republicanism was to be discussed.”1 Among Montesquieu’s earliest students was Rousseau. Rousseau was tasked by his employer at the time of the publication of the Spirit of the Laws, Madame Dupin, to undertake a close examination of the baron’s work to help her prepare the critical responses she as well as her husband planned. Rousseau labored on this project during the year or so before he himself became an overnight celebrity with the publication in 1751 of his prize essay, the Discourse on the Sciences and the Arts. The imprint of Montesquieu is visible throughout Rousseau’s own writings. He pays him the ultimate compliment in his Discourse on the Sciences and the Arts of quoting him without attribution, as we shall see (p. 16), and he refers approvingly to the “illustrious philosopher” in the Discourse on the Origin of Inequality (1755) with regard to Montesquieu’s critique of Hobbes’ depiction of the state of nature (SD 67).2 Finally, and more to the present point for understanding the intellectual background of the Social Contract, 10

“every legitimate government is republican” 11 Rousseau also draws on Montesquieu in his political treatise in several respects, including his acknowledged debt to his predecessor concerning the art of the legislator (SC II.11), his agreement with him that freedom is not the fruit of every climate (SC III.8), and the claim that population is a sign of good government (SC III.9). For Rousseau, Montesquieu is “an illustrious philosopher” (SD 67), “a famous author” (SC III.4, 214), and, as for everyone in his time, “the illustrious Montesquieu” (E 458). Despite his admiration for Montesquieu and his acknowledged debt to him, however, in the end Rousseau levels a decisive charge against him. He asserts that Montesquieu ultimately failed in his political theory because he lacked a fundamental principle by which to understand and judge political associations. Speaking in the Social Contract of Montesquieu’s claim that virtue was the principle of republics, a claim with which he agrees, he avers: “But for want of making the necessary distinction, this noble genius has often lacked precision, sometimes clarity, and he failed to see that since the sovereign authority is everywhere the same, the same principle should apply in every well-constituted state – to a greater or lesser degree, it is true, according to the form of government” (SC III.4, 214). Or, as he explains earlier in the work, without explicit reference to Montesquieu but undoubtedly with him in mind: “Every legitimate government is republican” (SC II.6, 189). If Rousseau follows his illustrious predecessor in crucial respects with regard to republicanism, he departs from him in perhaps even more crucial respects. The purpose of this chapter is to better understand Rousseau’s own republicanism in light of his debt to Montesquieu and his departure from him. I therefore begin with an analysis of Montesquieu’s treatment of republics in his Spirit of the Laws in order to identify the features of classical republicanism that would attract Rousseau and also to reveal Montesquieu’s ambivalence about the possibility and attractiveness of this republicanism. Montesquieu’s hesitations therefore become hurdles which Rousseau must surmount in his own attempt to revive republicanism

12 john t. scott on a new basis. The ways in which Rousseau creatively appropriates Montesquieu’s analysis of republics is the subject of the remainder of the chapter.

montesquieu’s republics If Rousseau is decidedly a republican theorist, is Montesquieu? Montesquieu has certainly been viewed as a republican thinker, especially given his famous and influential portrait in XI.6 of Spirit of the Laws of the constitution of England, which he earlier refers to as “a nation where the republic hides under the form of monarchy” (SL V.19).3 Likewise, many of Montesquieu’s followers considered him to be a republican thinker, or at least deployed his thought for republican ends, perhaps most notably the Federalists and AntiFederalists in the fledgling United States, both of whom appealed to Montesquieu’s authority for their own visions of the proper constitution for the new nation. But what about Montesquieu himself? Let us begin with the fact that Montesquieu categorizes republics as only one among three forms of government he will investigate in his great treatise: republics, monarchies, and despotisms. Moreover, Montesquieu might be said to speak not of a republic, in the singular, but of republics, in the plural – of various forms of republics: democracies and aristocracies, ancient models like Athens, Carthage, and especially Rome, and modern models such as Venice, Florence, and above all England.4 Finally, Montesquieu displays no clear normative preference for republics over monarchies – his opprobrium being reserved for despotism – or a clear preference for any specific form of republic. This is not to say that careful analysis of his work may not reveal that he ultimately does make such judgments.5 However, he does not articulate an obvious and uncompromising standard of legitimacy by which to assess the various forms of regime. In fact, this is precisely Rousseau’s major complaint against him. In order to examine Rousseau’s debt to Montesquieu and his departure from him, then, we first have to sketch Montesquieu’s conception of republics.

“every legitimate government is republican” 13 As just mentioned, Montesquieu distinguishes three forms of government: republican, monarchical, and despotic. While these three forms will undergo some embellishment and alteration as Montesquieu proceeds, for example when he distinguishes between two forms of republic, democracy and aristocracy, this tripartite division frames his analysis in the Spirit of the Laws. Montesquieu outlines his initial division at the outset of Book II when he discusses what he terms the “nature” of different forms of government. “There are three kinds of government: REPUBLICAN, MONARCHICAL and DESPOTIC,” he explains: To discover the nature of each, the idea of them held by the least educated of men is sufficient. I assume three definitions, or rather, three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established laws; whereas, in despotic government, one alone, without law and without rule, draws everything along by his will and his caprices. (SL II.1)

Montesquieu does mention “sovereign power” here, in relation to republics in particular, but it is not clear whether his notion of sovereignty applies only to republics, or whether it extends at least to the monarch who “governs” by fixed and established laws, or, finally, what exactly he means by “sovereign power” in the first place. At any rate, this is a rare mention of “sovereign power” in Montesquieu’s treatise, and the concept of sovereignty plays little role in his theory. The fact that some person or some group exercises the traditional powers of sovereignty at least seems only one among the “facts” he observes, and he seems more interested, at least for starters, in such “facts” than conceptual “definitions” of the forms of government. In the précis of the political principles of the Social Contract in his educational treatise, Emile, or On Education (1762), Rousseau therefore criticizes Montesquieu when he complains that for all his greatness his predecessor “was content to discuss the positive right of

14 john t. scott established governments,” that is the “facts” concerning existing states, and then proclaims: “It is necessary to know what ought to be in order to judge soundly about what is” (E 458). We might suspect that Montesquieu’s claim that he is following the ideas concerning these forms of government held by “the least educated of men” conceals a more learned and ambitious engagement with categorizations of regimes by previous thinkers. For example, Hobbes, whom he mentioned just a few pages earlier, distinguishes among kingship, aristocracy, and democracy by the number of those who possess sovereign authority (one, few, many) and also rejects the Aristotelian division of these three forms of government into proper and improper (e.g., kingship versus tyranny).6 In turn, Montesquieu reintroduces a quasi-Aristotelian distinction when he distinguishes between monarchy and despotism, and yet he will follow Hobbes at least part way when he distinguishes two forms of republic, democracy and aristocracy, and does so initially in terms of Hobbesian headcounting (see SL II.2). For his part, Rousseau returns to Hobbes by putting the emphasis decisively on the question of sovereignty and therefore also returns to the Hobbesian schema of kingship, aristocracy, and democracy, although within a republican framework in which this tripartite classification refers not to forms of sovereignty, of which there is only one legitimate form, but to forms of government (i.e., the executive power). We shall return to this subject (pp. 24–25). If the locus of the sovereign power or exercise of government determines the “nature” of the three forms of government, Montesquieu adds an important layer to his analysis when he turns to the “principle” that animates each form of government. “There is this difference between the nature of the government and its principle: its nature is that which makes it what it is, and its principle, that which makes it act. The one is its particular structure, and the other is the human passions that set it in motion” (SL III.1). Montesquieu identifies three principles, one for each of the three forms of government: the principle of republics is virtue, that of monarchies is honor, and that of despotisms is fear (SL II.2–9). As for

“every legitimate government is republican” 15 the principle of honor in monarchies, Montesquieu will admit that “philosophically speaking”– as opposed to speaking merely “politically” (see SL III.5 n. and III.6 n.) – the honor found in monarchies is a “false honor” (SL III.7). However, unlike Rousseau he does not dilate upon the corrupting effects of the desire for distinction, amour propre, in monarchies. Rousseau is nonetheless in full agreement with Montesquieu in identifying the principle of republics as virtue, and his own understanding of republicanism owes much to Montesquieu’s discussion. Montesquieu’s characterization of republics and the virtue required to sustain them is ultimately ambiguous. On the one hand, he is clearly awed by the achievements of republics, in particular the republics of antiquity. On the other hand, he seems to view the virtue required to make them act as definitely fragile and perhaps even monstrous. In addition, his later discussions of the English constitution and of commercial republics in general, which do not rely on strenuous virtue and which soften the very mores that martial republics require, might be viewed as a tacit rejection of the ancient republics he initially discusses in the work. In order to understand Rousseau’s response to Montesquieu, then, we shall first describe the generally admiring aspects of Montesquieu’s discussion of republics upon which Rousseau draws and then sketch Montesquieu’s reservations. Montesquieu begins his discussion of the principle of republics by emphasizing the particular need for virtue in a democratic republic: “There need not be much integrity for a monarchical or despotic government to maintain or sustain itself. The force of the laws in the one and the ever-raised arm in the other can rule or contain the whole. But in a popular state there must be an additional spring, which is VIRTUE” (SL III.3). Whereas monarchies and despotisms rely on human passions that are simple in their nature, the desire for honor and fear, respectively, republics require an additional spring to make them act that is not simple and not even natural. This statement already appears to inject a cautionary note, but Montesquieu’s tone

16 john t. scott in discussing republics, and foremost the ancient republics, is nonetheless admiring: “The political men [politiques] of Greece who lived under popular government recognized no other force to sustain it than that of virtue. Those of today speak to us only of manufacturing, commerce, finance, wealth, and even luxury” (SL III.3). Rousseau could have written these lines. In fact, he practically did: he adapted this statement for his own purposes in the Discourse on the Sciences and the Arts: “The ancient politicians [politiques] spoke constantly of morals and virtue; ours speak only of commerce and money” (FD 26).7 Likewise, in the Social Contract Rousseau echoes a similar appreciative comment by Montesquieu: “Most of the ancient peoples lived in governments that had virtue for their principle, and when that virtue was in full force, things were done in those governments that we no longer see and that astonish our small souls” (SL IV.4). Similarly, in the same work: “Base souls do not believe in great men; vile slaves smile mockingly at the word ‘freedom’” (SC III.12, 232). In short, Montesquieu is one of Rousseau’s sources for his admiring portrayal of ancient republicanism. The fact that, according to Montesquieu, virtue in aristocratic republics “is not as absolutely required” (SL III.4) in contrast to democratic republics suggests the main reason why virtue is requisite for democracies: because the people exercise self-rule, and self-rule requires self-restraint. In aristocracies, a body of nobles exercises rule, and for this rule to be effective the aristocrats may possess the virtue characteristic of democratic republics, but they also need not do so. The body of nobles may “repress itself,” either through “a great virtue that makes the nobles in some way equal to their people, which may form a great republic,” drawing the aristocracy toward democracy, or through “a lesser virtue that renders the nobles at least equal among themselves, which brings about their preservation” (SL III.4). Although this moderation is a form of virtue, it is less demanding than the kind of virtue required in democratic republics. By contrast, the virtue required in democracies entails not moderation, but an extreme renunciation of self. Montesquieu explains that “education”

“every legitimate government is republican” 17 is required to teach such self-renunciation, and that the ancient republics inculcated these lessons in virtue without any competing considerations, an accomplishment Montesquieu claims (in a nod to Machiavelli) is no longer possible in modern times because of the “education” in religion that opposes the lessons of the world (SL IV.4).8 Montesquieu writes: “It is in republican government that the full power of education is needed. Fear in despotic governments arises of itself from threats and chastisements; honor in monarchies is favored by the passions and favors them in turn; but political virtue is a renunciation of oneself, which is always a very painful thing” (SL IV.5). Montesquieu explains that political virtue can be defined as “love of the laws and the fatherland [patrie]. This love, requiring a continuous preference of the public interest over one’s own, produces all the individual virtues; they are only that preference” (SL IV.5). Strangely, his fullest definition of political virtue comes in his argument that monarchies do not require such virtue: “The state continues to exist independently of love of the fatherland, desire for true glory, self-renunciation, sacrifice of one’s dearest interests, and all those heroic virtues we find in the ancients and we know only by hearsay” (SL III.5). Whereas monarchies and despotisms do not have to rely on virtue and can instead rely on some much more reliable selfish passions, republics require nonselfish passions. Love of the fatherland and self-renunciation is “singularly connected with democracies,” Montesquieu states: “In them alone, government is entrusted to each citizen. Now government is like all things in the world; in order to preserve it, one must love it” (SL IV.5). Popular self-rule demands individual self-renunciation. Rousseau offers a very similar formulation in his essay “Political Economy” (1755): “If you want the laws to be obeyed, make them beloved, so that for men to do what they should do, they need only think they ought to do it. That was the great art of the governments of antiquity” (DPE 148). Montesquieu outlines two broad strategies used by democratic republics to infuse love of fatherland and self-renunciation: education

18 john t. scott and the management of social conditions, especially to encourage equality and frugality. In republics, “everything depends” on creating love of fatherland through education (SL IV.5). Creating such love requires “singular” or “extraordinary institutions” created by “legislators” of the likes of Lycurgus (SL IV.6). Like Rousseau after him, Montesquieu takes Sparta as the exemplar of ancient republicans: “One must regard the Greeks as a society of athletes and fighters” (SL IV.8). Proper educational institutions in a republic direct the citizens’ passions toward the good of the fatherland rather than to their individual good. This same strategy of redirecting the citizens’ passions also underlies Montesquieu’s second strategy of managing social conditions to produce equality. “Love of the republic in a democracy is love of democracy; love of democracy is love of equality” (SL V.3). Love of equality entails harnessing the individuals’ natural love of preference and directing it toward a specific goal: “Love of equality in a democracy limits ambition to the sole desire, the sole happiness, of rendering greater service to one’s fatherland than other citizens” (SL V.3). One is reminded here of Rousseau’s portraits of the male and female citizen at the outset of Emile, where a Spartan man who loses his run for office is nonetheless glad there are more worthy men than he in Sparta, and, more chillingly, where a woman Spartan is informed that her three sons have died in battle and tells the messenger that she was not asking about her sons but instead whether Sparta won (E 40). Similarly, managing what we would term economic and social conditions is also necessary in democratic republics to reinforce love of equality. “Love of democracy is also love of frugality. As each one there should have the same happiness and the same advantages, each should taste the same pleasures and form the same expectations; this is something that can be expected only from the common frugality” (SL V.3). Again, like the love of equality, the love of frugality entails managing the individual’s desire for preference, here economic advantage, and directing it toward a common goal. In Montesquieu’s analysis, love of equality and love of frugality are

“every legitimate government is republican” 19 mutually supporting: “Love of equality and love of frugality are strongly aroused by equality and frugality themselves, when one lives in a society in which both are established by the laws” (SL V.4). The issue, then, is to establish them. In this context, Montesquieu again turns to the example of the ancient republics and, in anticipation of Tocqueville, to inheritance laws that prevent the accumulation of wealth in families. Equality, and especially the equality of relatively modest circumstances, in turn produces frugality, and again we have a self-reinforcing mechanism. Yet Montesquieu here introduces the subject of commerce and argues that while the introduction of commerce into a republic can be done without corrupting mores if good mores have already been established, eventually inequalities in wealth will undermine the love of equality and love of frugality upon which the maintenance of the republic depends. In short, while the love of equality and love of frugality may be selfreinforcing once established, they are both difficult to establish and difficult to maintain. Perhaps for this reason, then, Montesquieu concludes his discussion of what legislation is appropriate to the principle of democracies with a suggestion that the creation of a senate can favor the principle. Through the example set by the virtue and example of a senate that preserved the mores needed in a democratic republic, the customs and mores that instilled the love of equality and love of frugality might be maintained (SL V.5–7). Whatever Montesquieu’s enthusiasm for ancient republicanism, that enthusiasm has its limits. Despite his Rousseaueansounding statements about the awesome accomplishments of those republics of old animated by self-renouncing virtue, Montesquieu clearly views this achievement as fragile. Their fragility is due foremost to the fact that their principle, virtue, is not natural: “political virtue is a renunciation of oneself, which is always a very painful thing.” Republics work against the grain of human nature, as opposed to monarchies and despotisms (whether for good or ill). Republics require redirecting the human passions toward “the general good” (SL III.5 n.) rather than the particular good of the individual, which

20 john t. scott is the foremost inclination of our nature. In describing this redirection of human nature, Montesquieu adopts the language of particularity and generality familiar to readers of Rousseau. “The less we can satisfy our particular passions, the more we give ourselves up to general ones” (SL V.2). Yet it is hard to imagine Rousseau continuing this passage after Montesquieu’s fashion: Why do monks so love their order? Their love comes from the same thing that makes their order intolerable to them. Their rule deprives them of everything upon which ordinary passions rest; what remains, therefore, is the passion for the very rule that afflicts them. The more austere it is, that is, the more it curtails their inclinations, the more force it gives to those that remain. (SL V.2)

For Montesquieu, this is hardly a complimentary comparison for republics. He appears ultimately to regard the requisite virtue of republics as not just fragile, but also monstrous.9 Two more ways in which Montesquieu appears to hesitate concerning republics or envisions a new sort of republicanism should be noted before turning to Rousseau. First, Montesquieu concludes his discussion of the principles of different governments by drawing a contrast between despotic governments and “moderate governments” (SL III.10). In moderate regimes, power is limited by its very “spring,” for example by honor in monarchies. Later, he will famously discuss institutional limitations on power in certain moderate regimes, such as in the English constitution as he presents it (SL XI.6). But which forms of government are “moderate”? Clearly despotism is not, and clearly monarchy – as Montesquieu conceives of it – is. What about republics? When discussing aristocratic republics, he argues that a certain kind of moderation can take the place of virtue as its principle (SL III.4). Although he will also later group at least aristocratic republics among “moderate governments” (SL VIII.8), it is not at all clear that he considers democratic republics to be “moderate.”10 This

“every legitimate government is republican” 21 implication appears to be confirmed when he argues, just before turning to the English constitution: Democracy and aristocracy are not free states by their nature. Political liberty is found only in moderate governments. But it is not always in moderate states. It is present only when power is not abused, but it has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits. Who would think it! Even virtue has need of limits. (SL XI.4)

As he later writes of his book as a whole: “I say it, and it seems to me that I have written this work only to prove it: the spirit of moderation should be that of the legislator; the political good, like the moral good, is always found between two limits” (SL XXIX.1). If democratic republics are not moderate due to their need for excessive virtue, or due to the absence of certain limitations on power and therefore absence of liberty, then it is difficult to see that Montesquieu will be able to recommend them. Second, and related to the question of the immoderation of democratic republics, if or insofar as Montesquieu presents the English constitution – a form of regime for which his earlier division of forms of governments into republics, monarchies, and despotisms did not prepare or at least fully prepare the reader – as a model to follow, then it may be the case that he is signaling that he has left behind the sort of ancient republicanism discussed in the beginning of the work (see SL XI.6 and XIX.17).11 Unlike the democratic republics of the early part of the Spirit of the Laws, the institutionally constrained and also commercial republic he depicts there may be said to work with human nature rather than against it. This sort of republic does not require the self-sacrificial virtues demanded by democratic republics and instead appeals to the more selfish motives of self-preservation and gain. Such a vision of a regime based on self-interest rightly understood and mutual dependence is precisely the sort of supposed “masterpiece of the politics of our century” that Rousseau condemns in the name of virtue in the political theorists of his time (PN 193).

22 john t. scott

every legitimate government is republican If every legitimate government is republican, then Rousseau must condemn Montesquieu both for not being a republican, or at least not a forthright republican, and for not having a clear standard of legitimacy. Rousseau’s fullest and most revealing indictment of Montesquieu comes in Emile within the section of the work “On Travel,” which contains a précis of the Social Contract. There, before summarizing the principles of political right exposed more fully in his political treatise, Rousseau situates his own political theory within modern political thought, and specifically in relation to theories of political right. “The science of political right is yet to be born, and it is to be presumed that it never will be born,” he writes in an odd statement for an author who is about to summarize his own political treatise, published a month earlier and subtitled Principles of Political Right. After citing Grotius and Hobbes as mere children in this science (and accusing Grotius of being a child of bad faith to boot), he turns to Montesquieu: “The only modern in a position to create this great and useless science was the illustrious Montesquieu. But he was careful not to discuss the principles of political right. He was content to discuss the positive right of established governments, and nothing in the world is more different than these two studies” (E 458). Rousseau’s characterization of Montesquieu is interesting for understanding his relationship to his predecessor. He suggests that the illustrious philosopher’s failure to discuss the principles of political right was the result of caution, presumably caution in the face of possible political repercussions if he had been more open. There are good reasons to believe that Rousseau may be correct in this regard; after all, the Spirit of the Laws did meet with considerable criticism, although largely due to its treatment of religious issues. Further, scholars have documented various ways in which the author pulled his punches and only allowed his readers to glimpse the critical conclusions of his arguments.12 However, Rousseau also implies that he believed that his predecessor did in fact have a theory of

“every legitimate government is republican” 23 political right that he suppressed or obscured. While a number of scholars have argued that Montesquieu is ultimately a theorist of natural right and tried to unearth the hidden foundation of his thought, this line of interpretation is controversial.13 Whatever the case may be with regard to Montesquieu’s thought or Rousseau’s understanding of it in this regard, Rousseau concludes that Montesquieu “was content to discuss the positive right of established governments.” How fair this characterization of Montesquieu may be is beyond the scope of the present inquiry. What can be said with certainty, however, is that Rousseau’s objection to Montesquieu’s supposed procedure is that focusing on positive right without a theory of political right leaves one without a standard of judgment: “Nevertheless, whoever wants to make healthy judgments about existing governments is obliged to unite the two. It is necessary to know what ought to be in order to judge soundly about what is” (E 458). Since Rousseau offers the summary of the principles of political right in Emile primarily as a means for his eponymous pupil to judge existing governments, the emphasis on judging soundly is appropriate. If Montesquieu wrote a political treatise in which he was content to discuss positive right without speaking of political right, it might be said that Rousseau wrote a political treatise in which he limited himself to discussing the principles of political right without discussing the positive right of existing governments. At any rate, it is clear that his fundamental objection to Montesquieu is that he did not ground his political thought in a theory of political right, which is precisely what Rousseau sets out to do in his Social Contract. In order to understand Rousseau’s critical engagement with Montesquieu in the Social Contract, we first have to understand the terminology he develops in the treatise. In the chapter “On the Social Compact” (I.6), the importance of which is signaled by the fact that the chapter title is nearly the same as the title of the treatise itself, Rousseau argues that only a precisely defined social contract entailing a total alienation of each associate to the whole community can

24 john t. scott satisfy the requirement where “each, united with all, nonetheless obeys only himself and remains as free as before.” This act of association produces a “moral and collective body” that he terms a “republic,” which in turn he terms the “sovereign” in its active capacity when making law (SC I.6, 173–4). The fact that Rousseau calls the state created by the social contract a “republic” already signals his argument that the only legitimate form of state, and of sovereignty, is republican. Having defined the “sovereign” and related concepts such as the “general will” in the first two books of his treatise, Rousseau turns in Book III of the Social Contract to the “government,” or executive power, which he distinguishes from the “sovereign,” or legislative power. When introducing this discussion at the outset of Book III, Rousseau warns: “Before discussing the various forms of government, let us try to determine the precise meaning of this word, which has not yet been especially well explained” (SC III.Proemium, 205). Does he mean that he has not yet explained the meaning of the term “government,” or does he mean that his predecessors – including Montesquieu – have not yet explained or understood it clearly? Recall that Montesquieu uses the term “government,” for example when discussing the various “natures” or forms of government (republican, monarchical, or despotic), or their specific “principles” (virtue, honor, and fear), to designate what might traditionally or loosely be called the “sovereign power.” Rousseau rejects this traditional usage when he insists on a precise definition of “sovereignty” as applying only to republics where the people, and only the people, collectively legislate in their capacity as “sovereign.” In the chapter “On Government in General” (SC III.1), Rousseau signals the crucial importance of the distinction drawn between the “sovereign” and the “government” when he begins: “I warn the reader that this chapter should be read with due care.” He explains: We have seen that the legislative power belongs to the people, and can belong only to it. On the contrary, it is easy to see, by the

“every legitimate government is republican” 25 principles established above, that the government cannot belong to the general public in its legislative or sovereign capacity, because this power consists solely in particular acts which are not within the province of the law nor, consequently, within that of the sovereign, all of whose acts can be nothing but laws. (SC III.1, 205)

Over the course of the next several chapters, Rousseau will discuss three forms of government: democratic, aristocratic, and monarchical. As mentioned above (p. 14), Rousseau follows Hobbes in distinguishing among these various forms by how many individuals belong to the government (one, few, many), but whereas Hobbes distinguished forms of sovereignty in this manner, Rousseau distinguishes among the forms of government, for, unlike Hobbes, Rousseau distinguishes between the legislative and executive powers. Montesquieu of course famously distinguishes among the legislative, executive, and judicial powers in the chapter of the Spirit of the Laws “On the Constitution of England” (XI.6) and in particular argues that a separate judicial power is necessary for political liberty. Further, he remarks that the legislative and executive powers (executive power being essentially power over foreign affairs) can safely be left to magistrates or to a permanent body “because they are exercised upon no individual, the one being only the general will of the state, and the other, the execution of that general will” (SL XI.6, 158). If we see an anticipation here of Rousseau’s theory in Montesquieu’s concepts and terminology, the differences are nonetheless more important. For example, if Montesquieu emphasizes the separation of the judicial power because it is exercised on particular individuals and is less insistent on the separation of legislative and executive power, Rousseau insists on the separation of legislative power (which must be general in exercise) and executive power (which is necessarily particular in exercise) and also importantly and unlike Montesquieu insists on the full primacy of the legislative power, that is of the sovereignty of the people. In short, from Rousseau’s perspective Montesquieu’s separation of the

26 john t. scott legislative and executive is not based on the proper understanding of the principles of political right. Rousseau’s specific engagement with Montesquieu comes in his discussion of democratic government, that is, where the entire people acts as the executive power as well as the legislative power. Despite his reputation as a democratic theorist, Rousseau states: “In the strict sense of the term, a genuine democracy never has existed, and never will exist.” And he also argues it should not exist: “It is not good for he who makes the laws to execute them,” since it is all too easy to confound the necessary generality in making the laws with the necessary particularity in executing the laws. “If there were a people of gods, it would govern itself democratically. So perfect a government is not suited to men” (III.4, 213–14). Rousseau is indeed a democratic theorist, but a theorist of democratic sovereignty and not of democratic governance, in his understanding of the terms. Perhaps Rousseau’s deflationary remarks here are aimed at the ancient republics for which he otherwise shows such admiration, whose main failing from his standpoint might be their failure to distinguish between the legislative and executive powers, not to mention the fact that they did not have a correct theory of political right. Perhaps his remarks are also directed at the putative admirers of these ancient republics or, if not admirers, those who conceived of republics on such improper models, which would explain why Rousseau turns in this context to Montesquieu. After outlining the difficult conditions necessary for democratic governments, and especially in a discussion of the requirements of equality and frugality that draws heavily on Montesquieu’s discussion of democratic republics, Rousseau suddenly writes: This is why a famous author has named virtue as the principle of a republic, for all these conditions could not endure without virtue. But for want of making the necessary distinctions, this noble genius has often lacked precision, sometimes clarity, and he failed to see that since the sovereign authority is everywhere the same, the same

“every legitimate government is republican” 27 principle should apply in every well-constituted state – to a greater or lesser degree, it is true, according to the form of government. (SC III.4, 214)

Rousseau’s decisive objection to Montesquieu is that he did not see that the sovereign authority is everywhere the same and, moreover, that he has confounded sovereignty with government. This conjecture that Rousseau is accusing Montesquieu of having confounded these powers is supported by a statement he makes earlier in the Social Contract in the chapter “On Law” (II.6). Having argued that the only proper source of law is the whole people legislating for itself in such a way that the sovereign will is general in form as well as in its object and then commenting that a will that is particular in its form or its object is at best a decree of magistracy, he writes: “I therefore call a republic any state ruled by laws, whatever the form of administration may be: for then alone does the public interest govern and does the commonwealth truly exist. Every legitimate government is republican. I will explain later what government is” (SC II.6, 189). To the phrase, “Every legitimate government is republican,” he adds a note: By this word [i.e., “republican”] I do not mean only an aristocracy or a democracy, but in general any government guided by the general will, which is the law. In order to be legitimate, not only must the government not be confounded with the sovereign, but it must be its minister. In this case, monarchy itself is a republic. This will become clearer in the following book. (SC II.6 n., 189)

Rousseau clearly has Montesquieu in mind here. But he offers a corrective of Montesquieu’s theory by arguing that republics are not only aristocratic or democratic in form, as Montesquieu did, but also monarchical (although he is clearly less enthusiastic about monarchy). Each of these forms of government, if properly distinguished from sovereignty, is republican if the sovereign power of the state is itself republican. He does not mention Montesquieu’s other form of

28 john t. scott government, despotism, because he is in agreement with his predecessor: despotism is the rule by sheer will and not by law, so it cannot be republican by its very nature. In short, Rousseau appropriates the three forms of government from Montesquieu that can be reconceived on a republican basis, not as different regimes but as different forms of government, that is, executive power. A hint of where Rousseau thinks Montesquieu went wrong comes earlier in this same chapter on law. Asking “But what in the end, then, is a law?” he comments: “As long as people are satisfied with attaching only metaphysical ideas to this word, they will continue reasoning without understanding one another, and when they have stated what a law of nature is, they will not thereby have any better idea of what a law of the state is” (SC II.6, 188). Rousseau seems to have Montesquieu in mind here. In the first chapter of Book I of the Spirit of the Laws, “On Laws in General,” Montesquieu begins by stating: “Laws, taken in the broadest meaning, are the necessary relations deriving from the nature of things” (SL I.1). After briefly discussing the laws of nature in the second chapter of this book, which includes a very abbreviated account of the state of nature, he turns in the third chapter to positive laws, but without positing any clear relationship between natural law (much less natural right) and positive law or political right. Indeed, after noting that the force of a political society must be put into the hands of one or many, Montesquieu ducks the question of legitimacy (at least in Rousseau’s eyes) and instead argues: “It is better to say that the government most in conformity with nature is the one whose particular disposition best relates to the disposition of the people for whom it is established.” Shortly afterward he adds: “Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it, as do political laws, or maintain it, as do civil laws” (SL I.3). From Rousseau’s perspective, then, Montesquieu does not have an adequate understanding of law because he does not understand the proper source of the law: the natural rights of individuals who have

“every legitimate government is republican” 29 alienated their rights to the sovereign of which they are members and who legislate for themselves in their capacity as citizens. An indication of Rousseau’s different procedure in this regard comes from the fact that his own definition of political and civil laws comes only after having defined the source and nature of the laws, whereas Montesquieu’s definition of these two types of laws comes at the outset of his treatise and seems to already assume that there are different forms of government by their nature and principle. Specifically, in the last two chapters of Book II of the Social Contract, Rousseau discusses the two principal objects the laws should have, namely freedom and equality. These general objects of all good institutions, he explains, should be modified according to the different circumstances of each state, and in this context he refers to Montesquieu’s extensive discussion of the different objects of different states (SC II.11). Although this reference at first glance appears to be a praise of Montesquieu, the subtext is critical: Montesquieu did not see that all properly formed states should foremost aim at the end that he himself said was the principle of republics, that is, equality. We will take up the other goal, freedom, shortly. Finally, in the last chapter of Book II Rousseau finally defines political and civil laws: political laws being the laws that regulate the action of the entire political body on itself (i.e., of the citizens considered as sovereign to the citizens considered as subjects) and civil laws being the laws that regulate the relations of the members to one another or to the entire body (SC II.12). For Rousseau, then, a correct understanding of political and civil laws can come only after having properly comprehended sovereignty and therefore law, which to his mind Montesquieu failed to do. In sum, Rousseau’s main indictment of Montesquieu is that he did not see that sovereignty was everywhere the same and therefore he lacked both a proper understanding of the basis of the state and a critical standpoint from which to judge the positive right of existing states. This much is obvious. What we need to understand, then, is how his fundamental disagreement with Montesquieu concerning

30 john t. scott sovereign authority affects how he simultaneously draws on Montesquieu’s discussion of republics and answers his reservations about them.

Rousseau’s Republic Let us begin with the similarities between Montesquieu’s and Rousseau’s conception of the republic in order to see how Rousseau draws on his predecessor. Before doing so, it must be admitted that both thinkers are indebted to the same ancient philosophical and historical sources, as well as to Machiavelli and other modern writers, for their understanding of ancient republicanism. Indeed, in his Confessions Rousseau relates how his childhood reading of Plutarch inflamed his imagination with visions of ancient virtue and childish attempts to imitate Scaevola, and all of this came long before he read Montesquieu (C 8). To this extent, then, Montesquieu is at best an intermediary inspiration for his conception of republics. What we must do, then, is focus on his explicit agreement with Montesquieu concerning republics: that the principle of republics is virtue. Rousseau’s conception of republican virtue is remarkably similar to Montesquieu’s. Recall that Montesquieu defines political virtue as “the love of the laws and the fatherland.” Such love, he explains, requires “a continuous preference of the public interest over one’s own, produces all the individual virtues; they are only that preference” (SL IV.5). Finally, Montesquieu stresses that instilling this love in the citizens is the work of education. Numerous examples of similar statements could be adduced throughout Rousseau’s writings, but his discussion of virtue in the essay “Political Economy” will suffice. “Do you want the general will to be fulfilled? Make sure that all particular wills are related to it; and since virtue is only this conformity of the particular will to the general, to say the same thing briefly, make virtue reign.” In explaining his statement, Rousseau draws upon Montesquieuian

“every legitimate government is republican” 31 language of the “spirit” (esprit) of institutions and the “spring” (ressort) that makes them act: If political thinkers [politiques] were less blinded by their ambition, they would see how impossible it is for any establishment whatever to function in the spirit [esprit] of its institution if it is not directed in accordance with the law of duty. They would feel that the greatest wellspring [ressort] of public authority lies in the hearts of the citizens, and that for the maintenance of the government, nothing can replace good morals.

Again, like Montesquieu, Rousseau explains that making virtue reign entails making the citizens love their duty, and that this is the effect of education: It is not enough to say to the citizens, be good. It is necessary to teach them to be so, and example itself, which is the first lesson in this regard, is not the only means that must be used. Love of fatherland is the most effective, for as I have already said, every man is virtuous when his particular will conforms on all matters with the general will, and we willingly want what is wanted by the people we love.

Finally, also like Montesquieu, Rousseau connects virtue with love of the fatherland: “Do we want peoples to be virtuous? Let us start by making them love their fatherland” (DPE 149–52). Rousseau’s understanding of the conditions under which such republican virtue can exist also owes much to Montesquieu. Staying with the essay “Political Economy” for a moment, after having emphasized the importance of love of virtue and the fatherland, Rousseau argues that one of the government’s chief tasks is to avoid inequalities of wealth “in order to maintain, along with good morals, respect for the laws, love of fatherland, and a vigorous general will” (DPE 154). Turning to the Social Contract, we see Rousseau explicitly cite Montesquieu on the need for equality and frugality in a democracy. As noted above (p. 26), in his discussion of democratic

32 john t. scott government, Rousseau elaborates all the difficulties entailed by a “true” democracy, that is, a state in which the people not only has the legislative power but also exercises the executive power of government. “Furthermore, think of how many things this form of government presupposes which are difficult to combine,” including a very small state where the citizens can know one another, great simplicity of morals, great equality of ranks and fortunes, and, finally, little or no luxury. Having laid out these difficulties, then, Rousseau reveals his debt to Montesquieu: “This is why a famous author has named virtue as the principle of a republic; for all these conditions could not endure without virtue” (SC III.4, 214). At this point in the Social Contract, as we have seen, Rousseau criticizes Montesquieu for having not seen that the sovereign authority is everywhere the same. But what is Rousseau’s own point in this context? He agrees with Montesquieu that a strict or “true” democracy is impossible or at least extremely fragile, but his reasons for doing so are somewhat different. Whereas Montesquieu’s focuses on the unnaturalness of virtue understood as self-renunciation, Rousseau regards democratic governance as beyond the reach of human beings because the necessarily particularistic acts of government will contaminate the generality required for true legislative acts. If virtue consists in following the general will, then democratic governance erodes virtue in this sense. More importantly, though, while Rousseau agrees in this way with Montesquieu concerning the problems of democratic government, he does not thereby join him with respect to democratic sovereignty. Rousseau thinks democratic republics possible where Montesquieu regards them as admirable but at best fragile. Rousseau believes that the virtue requisite for democratic sovereignty is in fact possible. As we have seen (pp. 16–17), Montesquieu’s doubts concerning republics center around the self-renunciation required of the virtue necessary for such republics, a renunciation that is “always painful” since it goes against the grain of human nature. Part of Rousseau’s vision of the practicability of a republic, then, relies upon his different

“every legitimate government is republican” 33 assessment of the degree to which the passions of human beings can be redirected from natural selfishness to public-spiritedness. Such a redirection of self-love is possible because of the plasticity of human nature, or what Rousseau terms the uniquely human capacity of “perfectibility.” In the Discourse on Inequality, Rousseau famously argues that human beings are distinguished by the “faculty of perfecting himself” or “perfectibility” (perfectibilité) (SD 72). Whatever else this unique faculty may entail, it is foremost a way for Rousseau of naming the malleability of our passions and faculties. Even though human beings are by nature directed by two “principles,” self-love and pity, these fundamental passions are subject to numerous modifications, especially as they develop in society along with the other faculties, notably reason. This faculty generally leads to man’s corruption, according to Rousseau, but it might also be directed by education or proper social institutions in such a way as to make men virtuous and happy. He may have been inspired in part for his argument concerning perfectibility by Montesquieu, who also appreciates the malleability of human nature. In the very first chapter of the Spirit of the Laws, in discussing laws in their most general sense, Montesquieu writes: Man, as a physical being, is governed by invariable laws like other bodies. As an intelligent being, he constantly violates the laws god has established and changes those he himself establishes; he must guide himself, and yet he is a limited being . . . Made for living in society, he could forget his fellows; legislators have returned him to his duties by political and civil laws. (SL I.1)

Unlike Montesquieu, however, Rousseau argues that human beings are not, in fact, made for society. Paradoxically, this very radical asociality, in the sense of a lack of any specific directedness of our nature beyond our self-love, makes the art of the legislator even more powerful in Rousseau’s theory in molding individuals into virtuous citizens.

34 john t. scott In the chapter of the Social Contract devoted to the legislator or lawgiver (législateur), Rousseau highlights the legislator’s task of refashioning human nature in order to make men capable of virtue and self-legislation: He who dares to undertake to establish a people’s institutions must feel that he is capable of changing, so to speak, human nature; of transforming each individual, who by himself is a complete and solitary whole, into a part of a greater who from which that individual receives as it were his life and his being . . . of substituting a partial and moral existence for the physical and independent existence we have all received from nature. (SC II.7, 191)

In Emile, at the point in the work where he gives the examples of the Spartan male and female citizens mentioned above, Rousseau terms this process “denaturing”: Good social institutions are those that best know how to denature man, to take his absolute existence from him in order to give him a relative one and transport the I [moi] into the common unity, with the result that each individual believes himself no longer one but a part of the unity and no longer feels except within the whole. (E 40)

Nonetheless, the terminology of “denaturing” is potentially misleading. In the passage from the Social Contract quoted just above, he states that the legislator must change human nature “so to speak.” “Denaturing” involves not entirely taking away our nature, but instead redirecting its very “principles” of self-love and pity toward ends that are not themselves natural. A full analysis of how the asocial nature of human beings can be redirected toward social or political ends is beyond the scope of the present analysis, but some idea of what Rousseau has in mind can be gleaned from his highly Montesquieuian treatment in the essay “Political Economy” of love of virtue and love of the fatherland.

“every legitimate government is republican” 35 Within his discussion there of the importance of education for instilling virtue and patriotism, Rousseau suggests that the natural passion of self-love can be redirected to produce virtue: It is certain that the greatest miracles of virtue have been produced by love of fatherland. By combining the force of amour-propre with all the beauty of virtue, this sweet and ardent feeling gains an energy which, without disfiguring it, makes it the most heroic of the passions. It produced the many immortal actions whose splendor dazzles our weak eyes, and the many great men those antique virtues have been thought to be fables ever since love of fatherland has been turned to derision. (DPE 151)

Similarly, somewhat further on he explains of the process of civil education: If, for example, they are trained early enough never to consider their persons except as related to the body of the State, and not to perceive their own existence, so to speak, except as part of the state’s, they will eventually come to identify themselves in some way with this larger whole; to feel themselves to be members of the fatherland; to love it with that delicate feeling that any isolated man feels only for himself; to elevate their soul perpetually toward this great object; and thereby to transform into a sublime virtue this dangerous disposition form which all our vices arise. (DPE 155)

This process of redirecting the primary human passions can be rephrased in terms of “generality” and “particularity” Rousseau utilizes foremost in the Social Contract, terminology which we also saw Montesquieu use in speaking of the self-renouncing virtue required in republics. If the individual can be taught to see himself as a part of the political whole, his passions and will are directed toward general objects – the “general will” – rather than toward particular objects – the “particular will.” This process is not precisely the self-renunciation Montesquieu describes but is rather a reconceptualization of self. In short, for Rousseau the very plasticity

36 john t. scott of human beings’ natural passions allows them to be redirected toward the virtue needed for republics. For Rousseau, civic virtue is essential for a properly functioning republic, but freedom is an equally important end, and the centrality of freedom and its specific character as self-legislation marks an important departure from Montesquieu. “The fatherland cannot subsist without freedom, nor freedom without virtue, nor virtue without citizens,” Rousseau explains (DPE 154). And in the Social Contract he writes: “If one investigates in what precisely consists the greatest good of all – which should be the end of every system of legislation – one will find that it comes down to the following two principal objects: freedom and equality” (SC II.11, 200). As for Montesquieu, he argues that equality is among the conditions necessary for a republic, but he does not associate freedom with republics. In the Spirit of the Laws, in the chapter to which Rousseau alludes when he gives its author the backhanded compliment of having lengthily discussed the various ends of different states, Montesquieu states that there is one nation whose constitution has “political liberty for its direct purpose,” namely England, or at least England as he depicts it (SL XI.5). In his lengthy treatment of the English constitution, Montesquieu specifies what he means by political liberty: “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security” (SL XI.6 beginning). Rousseau shares neither Montesquieu’s understanding of political liberty nor his positive assessment of English liberty. Indeed, Rousseau associates tranquility of mind with servitude (see SC I.4). As for England’s vaunted liberty, Rousseau is blunt: “The English people thinks it is free; it is greatly mistaken. It is so only during the election of members of Parliament; as soon as they are elected, it is a slave, it is nothing” (SC III.15, 235–6). In short, for Rousseau proper political liberty involves selflegislation of the citizens in their capacity as the sovereign. The act of association produces a collective body that “formerly took the name city, and now takes that of republic” (SC I.6, 173–4), he explains,

“every legitimate government is republican” 37 revealing in a single phrase both his debt to Montesquieu and his departure from him.

conclusion If philosophy has been said to have been a footnote to Plato, then Rousseau’s republicanism has been characterized as a footnote to Montesquieu’s political theory, a kind of republican synecdoche where a part of his predecessor’s grand political vision is extracted and made the sole focus of attention. Judith Shklar offers something like this in her consideration of the relationship between the republicanism of the two thinkers. Arguing that Montesquieu showed the impossibility of classical republicanism in the modern world, she writes: “if the republican past was not to become irrelevant it would have to be imaginatively recreated or to be explicitly replaced by a new expansive republicanism to fit the modern political world. Rousseau responded to the first of these intellectual possibilities, while the authors of The Federalist pursued the second one. Both were deeply indebted to Montesquieu.”14 Shklar proceeds to argue that Rousseau revived the classical republicanism that Montesquieu ultimately rejected as a critical device to indict modern politics, as a “mirror” of a democratic and egalitarian politics that would reveal to modern peoples the extent of their corruption, and not as a practical political proposal.15 Paul Rahe’s assessment of the relationship between the two thinkers is closer to the present analysis: “Montesquieu’s description of the ancient republics and his analysis of their character Rousseau thought entirely just, but he did not share” his misgivings about ancient republicanism: “In fact, the very features of classical republicanism that had occasioned such misgivings on Montesquieu’s part were the features that Rousseau found most attractive.”16 I have suggested that Rousseau does indeed borrow from Montesquieu’s account of democratic republics, but that he resurrects this republican theory on a new basis that enables it to be put into practice. While he agrees with Montesquieu that democratic government is impossible, he envisions a workable democratic

38 john t. scott sovereignty that molds the malleable nature of men and transforms them into civic-minded citizens and that binds virtue, freedom, and the exercise of sovereign authority together in a vision of a legitimate politics.

notes 1. Shklar 1998, 244. 2. References to Rousseau’s work will be given as follows, using the editions cited: C = Confessions (in vol. 5 of Collected Writings of Rousseau, 13 vols. Hanover, NH: Dartmouth College/University Press of New England, 1990–2010); DPE = Discourse on Political Economy (in vol. 3 of Collected Writings of Rousseau, 13 vols. Hanover, NH: Dartmouth College/ University Press of New England, 1990–2010); E = Emile, or On Education (trans. Allan Bloom. New York: Basic Books, 1979); FD = Discourse on the Sciences and the Arts (in Major Political Writings, ed. and trans. John T. Scott. Chicago: University of Chicago Press, 2012); PN = Preface to Narcissus (in vol. 1 of Collected Writings of Rousseau, 13 vols. Hanover, NH: Dartmouth College/University Press of New England, 1990–2010); SD = Discourse on the Origin of Inequality (in Major Political Writings, ed. and trans. John T. Scott. Chicago: University of Chicago Press,2012); SC = On the Social Contract (in Major Political Writings, ed. and trans. John T. Scott. Chicago: University of Chicago Press, 2012). 3. All citations to Montesquieu’s Spirit of the Laws (SL) will be parenthetical within the text by book and chapter. I have occasionally altered the translation, based on the Pléiade edition (1951). 4. See Carrithers 2001. 5. For attempts to make such an argument see, among others, Pangle 1973; Rahe 2009a; Williams 2001. 6. See Hobbes 1994 [1651], chapter 19. 7. See Kelly 2013. 8. See Machiavelli, Discourses on Livy, II.2 (Machiavelli 1998, 131): “Thinking then whence it can arise that in those ancient times peoples were more lovers of freedom than in these, I believe It arises from the same cause that makes men less strong now, which I believe is the difference between our education and the ancient, founded on the difference between our religion and the ancient.” See Rahe 2009b, 19–20.

“every legitimate government is republican” 39 9. See Pangle 1973, 88–9; Rahe 2009a, especially 73. 10. See Rahe 2009a, 69–70. 11. See Pangle 1973; Rahe 2009a. 12. See Rahe 2009a. 13. See, for example, Pangle 1973; Zuckert 2001. 14. Shklar 1998, 247. 15. Shklar 1998, 249–53. See Shklar 1969. 16. Rahe 2009b, 120.

3

What If There Is No Legislator? Rousseau’s History of the Government of Geneva Christopher Kelly

For any reader of The Social Contract, one of its most striking features is Rousseau’s insistence on the need for a legislator who – to put it bluntly – deceives the people in order to establish a legitimate government. The chapter devoted to the legislator appears immediately after the most theoretical part of the work as Rousseau turns from the exposition of the principles of political right to their implementation in practice. His insistence on the need for a legislator is unusual among social contract theorists. A contract establishing civil society and government would seem to require nothing but a number of free and equal individuals living in a state of nature without a government who enter into agreement with each other. This is, indeed, what we see in the account of the social contract given by Rousseau’s predecessors such as Hobbes and Locke. To be sure, both Hobbes and Locke need to convince their readers that humans are, in fact, naturally free and equal rather than living under obligations to any superiors, whether human or divine. Moreover, they need to show these readers what the proper terms of the contract are. In these respects, they could be understood to act as protolegislators. Nevertheless, it remains the case that their presentations of the contract itself depict a situation in which humans meet each other as equals and insist upon equal rights. In principle, no legislator external to this contract is needed.1 Rousseau, however, insists that it is necessary to imagine something like a legislator who proposes the contract to these free and equal individuals who would not be able to come up with its terms by themselves. Already in the Second Discourse, Rousseau raises 40

what if there is no legislator? important questions about how an attempt to introduce such a contract would work in fact. He presents the original social contract as “the most deliberate project that ever entered the human mind” (SD, CW 3: 53),2 but he also insists that it is a fraud practiced upon the poor by the rich who are merely seeking an effective way to defend their own possessions under the guise of a concern to establish rules that will protect everyone. The very first example of human speech presented in the Discourse involves such a representative of the rich deceiving the poor. The change from the Discourse to On the Social Contract resides, not in the practice of deception, but in the presence of someone outside of the class war who will use the deception for benevolent purposes, although it should also be mentioned that the legislator of the Social Contract proposes, not simply the terms of the contract as such, but also the specific fundamental laws under which the people will live. Montesquieu is another predecessor whose work was well known to Rousseau. Unlike Hobbes and Locke, he does devote considerable attention to legislators. In fact, in his chapter on the legislator Rousseau cites his predecessor saying, “at the birth of societies, says Montesquieu, the leaders of republics create the institutions; thereafter, it is the institutions that form the leaders of republics” (SC, CW 4: 155).3 This remark poses no theoretical problem of legitimacy for Montesquieu, who provides only a brief account of the state of nature in The Spirit of the Laws and does not suggest that a contract is necessary to remove humans from it. Moreover, Montesquieu also has no elaborated doctrine of sovereignty that would complicate the role of a legislator as it does in Rousseau. Finally, Montesquieu characteristically presents a view of incremental progress aided by legislators that is foreign to Rousseau. The two men agree that early governments were imperfect. Montesquieu, however, insists that improvements come about largely by trial and error or by working out practical problems. Even more ambitious legislators such as Louis IX institute reforms that succeed gradually. In fact, in the last five books of the Spirit of the Laws (with one of the books explicitly devoted to the

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42 christopher kelly legislator) Montesquieu traces the gradual development of primitive German laws into feudal institutions, and then to the more liberal legal system characteristic of England, illustrating his claim that the institutions of England were born in the forests of Germany. We shall see that Rousseau, too, has an interest in medieval institutions, but this interest is unaccompanied by any idea of a fundamental, if gradual, progress that takes place by anything other than accident. This is a progress that can be wiped out definitively at any moment. The need for a superior individual who establishes the laws indicates that such an establishment is neither simple nor straightforward. In On the Government of Poland, Rousseau asserts that one of the distinctive differences between ancient and modern communities is the presence of a few outstanding legislators among the former and their complete absence among the latter. Even among the ancients, Rousseau gives only the examples of Moses, Lycurgus, and Numa. This naturally raises the question of the status of existing communities that cannot point to any such legislator in their past. What should we do with our own communities? Must they be refounded through a radical revolution that then installs a legislator? This would seem to be a natural conclusion. It is not surprising that many readers of Rousseau, including some of the leaders of the French Revolution, would conclude that it is our only hope. Other readers have drawn a much more pessimistic conclusion from Rousseau’s discussion of the legislator. They argue that the combination of the need for a legislator and the unlikelihood of finding one means that Rousseau must believe that, however desirable it would be, a radical transformation of existing communities is so unlikely as to be virtually impossible. We seem to be caught between a radical pessimism that regards improvement as almost impossible and a desperate optimism that encourages reckless behavior. These alternatives are in fact represented within Rousseau scholarship, dividing a minority of those who see him as a cautious conservative and a larger number who see him as a bold revolutionary who spawned other, even bolder, revolutionaries.

what if there is no legislator? There is no disagreement among scholars or other readers that Rousseau’s treatment of the legislator in Book II, Chapter VII of the Social Contract is intended to show a practical problem with the teaching of popular sovereignty presented earlier in the work. The doctrine that the people as a whole is the only legitimate source of law seems to exclude the wisdom and prudence necessary to establish good laws. Rousseau, to be sure, has no illusions about the capacity of the people. While this problem exists for any doctrine of popular sovereignty, it is particularly acute for Rousseau’s doctrine. Since he strongly rejects the idea that humans are naturally political animals, Rousseau must argue, in effect, that human nature must be changed to make them into citizens. The laws themselves are the prime vehicle of this transformation. Rousseau indicates a vicious circle: The people are the only legitimate source of laws, but they can make good laws only if they have already been transformed by them. The differences among interpreters of Rousseau to which I have referred occur over the question of whether the discussion of the legislator shows the solution to the problem or shows that it is insoluble. Clearly, the legislator is an extraordinary figure, having “a superior intelligence,” including knowledge of all human passions but the possession of none of them. He is interested in promoting human happiness, but his own happiness does not depend on this. Not surprisingly, then, Rousseau concludes, “Gods would be needed to give laws to men” (SC, CW 4: 154). The issue is whether Rousseau believed that such superhuman figures can exist in fact. In the chapter, Rousseau mentions only two legislators by name: Lycurgus, the legislator of Sparta, and (in a note) Jean Calvin, the legislator of Rousseau’s own homeland Geneva, although he also says that ancient Greek cities and modern Italian cities have made use of legislators, either a foreigner or someone who goes into exile after giving the laws. As mentioned above, in On the Government of Poland he adds Moses and Numa to the list (Poland, CW 11: 171–3). We shall also look at Rousseau’s discussion of Lycurgus in the Second

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44 christopher kelly Discourse. I will return later to the example of Calvin, the sole modern legislator mentioned by Rousseau. The three chapters of the Social Contract following the chapter on the legislator are concerned with the sort of populace that is suitable for legislation. Nicholas Dent, for one, has argued that these chapters show that a suitable populace does not need such extraordinary abilities as those Rousseau attributes to the legislator in order to devise laws (Dent 2005, 142). Of course, even if this is true, it is little cause for optimism. In discussing the sort of people suitable for legislation Rousseau emphasizes that good legislation can take place only in the youth of peoples. “Once customs are established and prejudices have taken root, it is a dangerous and foolhardy undertaking to want to reform them” (SC, CW 4: 157). He concedes that there are some exceptions to this rule, including that of Sparta, but these exceptions require violent periods of revolution and even these can take place only once and only when the people involved are barbarous rather than civilized (SC, CW 4: 158). In these passages, and others like them, Rousseau insists that revolutions almost never lead to anything but despotism. Thus, it seems that successful founding or even reform is extraordinarily rare. In modern Europe, only semibarbaric Corsica is capable of legislation (SC, CW 4: 162). Even if Rousseau changed his mind on this point later and added Poland to Corsica, the situation in the modern world is bleak. Both sides in the dispute over the significance of the legislator can point to texts outside of the Social Contract to support their position. Those who see a revolutionary Rousseau can cite the Second Discourse where, after detailing the myriad of problems faced by nascent government, he concludes that “people incessantly mended, whereas it would have been necessary to begin by clearing the area and setting aside all the old materials, as Lycurgus did in Sparta, in order to raise a good Edifice afterward” (SD, CW 3: 56). Those who see a conservative Rousseau can respond with a passage written earlier in his responses to critics of the First Discourse in which Rousseau pronounces the “great and deadly truth” that “once

what if there is no legislator? a people has been corrupted, it has never been seen to return to virtue.” Turning to the subject of setting aside the old materials he concludes, “There is no remedy short of some great revolution – almost as much to be feared as the evil it might cure – and which is blameworthy to desire and impossible to foresee’’ (Observations, CW 2: 53). This latter passage stops just short of saying that such a revolution is impossible, but its claim that it is “impossible to foresee” indicates as clearly as one could wish that it cannot be brought about by a planned human action. The right sort of revolution can happen, but it cannot be planned. Leaving aside the question of the likelihood of a legislator and turning to the situation of a citizen who lives in a modern state, we are left with the question, what do we do when there is no legislator at hand? Is there a third alternative between a reckless gamble and gloomy despair? In order to see such an alternative, it may be necessary to change the terms of the debate between the different sorts of readers of Rousseau I have just sketched. To begin this reevaluation of Rousseau, it is worth pointing out that this extreme disagreement rests on top of several fundamental agreements between the contending views of Rousseau. First, both sides agree that a legislator is necessary for a legitimate state; they disagree only about how possible Rousseau thought it was to find one or perhaps about whether they think they can find one. Second, agreeing that a legislator is necessary, they also tend to agree that any society that lacks one cannot be legitimate. Third, the clear implication of these first two agreements is that Rousseau regards virtually every existing society as illegitimate. The issue between the readers is over whether Rousseau thinks these illegitimate states should be overturned or put up with. I propose to reopen each of these questions by means of the consideration of a less well-known, not to say entirely ignored,4 discussion of the legislator in Rousseau’s unfinished History of the Government of Geneva. This incomplete work explicitly addresses at some length the question of the significance of the legislator and what

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46 christopher kelly one can do when there is not one at hand. Thus, it gives information about an important practical application of Rousseau’s theoretical principles. I will ultimately argue that it also implicitly indicates an underexplored aspect of his account of the general will.

the history of the government of geneva One modern community other than Corsica and Poland that Rousseau discussed frequently from the beginning to the end of his career is Geneva. Not only is Geneva the subject of the dedication to the Second Discourse, Rousseau also discusses it at length in the Letter to d’Alembert, The Letters Written from the Mountain, and in the History of the Government of Geneva. The reasons that Rousseau began this last work are clear. The publication of the Social Contract and Emile in April and May 1762 opened a period of international controversy over these works. In most places, the religious opinions expressed in “The Profession of Faith of the Savoyard Vicar” were the source of the controversy and brought down legal action against Rousseau and his book. In Geneva, however, both Emile and the Social Contract were condemned, putting an end to Rousseau’s thoughts of taking refuge in his native city when he was informed that he would have to leave France immediately to avoid prosecution for Emile. A year later, Rousseau renounced his Genevan citizenship, a step which inflamed the controversy over the measures against his book. The Genevan government’s action against Rousseau’s works ultimately led to protests on the part of citizens who supported him and who insisted that the government’s peremptory action represented a dangerous violation of legal procedure. Several months later, the government position was expounded in the Letters Written from the Country by the Procurator-General Tronchin. Rousseau’s supporters urged him to make a response. When Rousseau replied that an effective response would require a greater knowledge of the history of the Genevan government than he had, his supporters provided him with a package of papers providing historical materials.5 In the letter requesting these materials,

what if there is no legislator? Rousseau does indicate that he has been reading Histoire de Genève by Jacob Spon, a work written in the seventeenth century but reissued in an improved version in 1730. Spon’s declared purpose was to write a history that was impartial on the religious disputes between Catholics and Protestants. His history pays particular attention to the threat posed to Geneva by its Catholic neighbor Savoy. Rousseau was well acquainted with Spon’s work, having read it even prior to 1739 (CW 12: 3) and its emphasis on foreign-policy questions and religious controversies was certainly useful to him. Nevertheless, whatever Rousseau’s impression of Spon’s work might have been, it is hard to detect much influence of it in his own treatment of the impact of foreign threats on the Genevan form of government. In fact, Rousseau sketched out an account of the history of the government of Geneva that departed dramatically from the ones available to him. In January 1764, Rousseau announced in a letter to his Genevan friend Jacques-François Deluc that, after looking at the material his friends had sent, “I have determined to divide my enterprise in two, with the goal of leaving [more] room for the remedy of the evil than I could have done the first time. First I will write the letters I planned and in which I propose to speak principally about myself” (CC 19: 35). These letters were published in December 1764 under the title, Letters Written from the Mountain. In this work, Rousseau does, indeed, speak principally about himself and the arguments of his books, although throughout the work he insists that the violations of both procedure and substance made by the government should be of general concern to every citizen. As he says, “everywhere that innocence is not in safety, nothing can be: everywhere that the Laws are violated with impunity, there is no longer any liberty” (LM, CW 9: 237). In short, in addition to being an important defense of Rousseau’s works, this book also contains a diagnosis of the constitutional problems faced by Geneva. In the letter to Deluc explaining the division of his task into two parts, Rousseau explains the second part by saying: “But I propose to

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48 christopher kelly meditate and work more at leisure on another – more important – writing.” He continues, “It is for this second work that all you have sent me will principally be useful, but in addition it will require the history of everything that has happened in the last five or six years” (CC 19: 36). He concludes that this longer work, relying on both distant and recent Genevan history, will require two additional years of work. At this point, he began making copies of material he had been sent and writing a draft. By March, however, Rousseau had abandoned this part of the project and was content with finishing the Letters Written from the Mountain. What remains from the other project is a draft of an introduction and two short books plus about twice as many pages of Rousseau’s extracts from the material he had been sent. Scholars have recently devoted considerable attention to the Letters Written from the Mountain and have demonstrated its importance for his political thought.6 Perhaps it is time to look more closely at what we have of the abandoned work that Rousseau had once considered to be even more important.

calvin One of the striking features of The History of the Government of Geneva is the complete absence of Calvin from Rousseau’s account. Unfortunately, the History breaks off at 1529, shortly before Calvin’s first stay in Geneva and well before he drew up the edicts for which Rousseau praises him in the Social Contract. We do not know what Rousseau might have said about Calvin had he completed the later work, but what he does say about the history of the government of Geneva leaves little room for a decisive role for Calvin. In fact, it is possible that an unwillingness to give his revisionist account of Calvin contributed to Rousseau’s decision not to complete the work, although the events of his life also clearly played a role. This is the point at which we can consider the claim in the Social Contract that Jean Calvin was the legislator of Geneva. It is no longer obvious to us today, but in Geneva itself Rousseau’s claim

what if there is no legislator? would have looked to many like a partisan one. For a long time, Geneva had been divided between partisans of the oligarchy that controlled institutions such as the Small Council and opposition who insisted that this control entailed a usurpation of the power that legitimately belonged to the larger General Council. This division regularly threatened to lead to civic conflict, and in 1737 neighboring powers intervened and imposed a settlement between the parties. This mediation outlined an understanding of the structure and power of the government and established a fragile peace in the city. This fragile peace was disrupted by the controversy over the censorship of the Social Contract in 1762. The mediation of 1737 itself could be considered as an act of legislation, and it is a subject Rousseau addresses in the Letters Written from the Mountain, but the opposing parties within Geneva had their own different candidates for more fundamental legislation. As a rule, the progovernment oligarchic faction pointed to the comprehensive edicts passed in 1568 (Rosenblatt 1997, 255 and Monter 1975, 152). For the purpose of understanding the significance of Rousseau’s statement about Calvin, it suffices to note that Calvin had died in 1564, four years before this revision of his work. Beginning in the 1720s, Jacques-Bartélemy Micheli du Crest, one of the leaders of the antigovernment faction, argued that the 1568 edicts were only temporary measures and did not change the fundamental law that had been established earlier. Moreover, later while in exile, he argued against the 1737 settlement as an attempt to overthrow the fundamental law (Rosenblatt 1997, 150). Similar positions were taken even earlier by Antoine Léger (Rosenblatt 1997, 124). There are, however, some ambiguities in the positions of the various antigovernment proponents. For example, Léger insisted on the importance of both Calvin and the Reformation in general for the establishment of Geneva’s political liberty (Rosenblatt 1997, 124). Others make vaguer references to Geneva’s “primitive” government without necessarily specifying its origins, which might have been lost in the mists of time (Rosenblatt 1997, 75 and 142).

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50 christopher kelly Whatever else might be the case, Rousseau’s assertion that Calvin was the legislator of Geneva sets him against the claims of the government. Moreover, Rousseau’s statement is carefully phrased. He makes it clear that it is the “drawing up of our wise Edicts, in which he played a large part” (SC, CW 4: 155*) for which he is praising Calvin. Rousseau explicitly distinguishes this work from Calvin’s major theological writing, the Institutes. This is entirely compatible with his statement several years later that, “Calvin, doubtless, was a great man; but in the end he was a man, and what is worse, a Theologian (LM, CW 9: 156). It is Calvin the trained lawyer, rather than Calvin the theologian, who is being praised. Even more can be said. Calvin’s strictly legislative activity in Geneva had two accomplishments. The first of these involved revising the ecclesiastical ordinance of 1537 that officially established the Reformed Church. Calvin began and completed this task shortly after he was summoned to Geneva in 1541. After that, he turned to the edicts on the structure and power of the government. This task was completed in 1543. These were the edicts that were revised in 1568. Rousseau’s statement refers only to the edicts and, therefore, could be read as restricting Calvin’s legislative accomplishment to them and excluding the ecclesiastical ordinance.7 In sum, even in a chapter in which he emphasizes the legislator’s use of religion to gain support for his laws, Rousseau stresses Calvin’s secular accomplishment. In this respect, he varies from at least some of the arguments made against the government’s position in the generations before he wrote. These arguments saw Calvin first as a theologian and then as a lawyer. In short, the account of Calvin’s action as a legislator in the Social Contract does not affirm the importance of the Protestant Reformation in this founding. Rousseau’s insistence on the importance of the edicts alone raises the question of the relation between the Protestant Reformation and Genevans’ republican liberty. Understanding his position on this depends in part on precisely what Calvin accomplished in codifying the Edicts in 1543. On this point, historians are

what if there is no legislator? somewhat divided. On the one hand, in his recent biography of Calvin, Bruce Gordon emphasizes the novelty of the Edicts. He says: “Although Geneva broke from its bishop in 1536, it was not an independent city. In addition, the revolution which had swept the new order to power required a root-and-branch restructuring of every aspect of government, including religion, education, the judicial system, the chancery and defence” (Gordon 2009, 68). On the other hand, although he asserts that Geneva was “virtually a tabula rasa” in the 1530s and 1540s, E. William Monter has concluded, “the finished product, Geneva’s 1543 edicts on offices and officials was essentially a codification of current practices” (Monter 1975, 29 and 72). On which side of this difference of opinion does Rousseau fall, and what importance does he attribute to it? The Social Contract does not settle this question, although by linking Calvin with a legislator like Lycurgus, it seems to support the former view. The History of the Government of Geneva, for its part, completely reframes the debate in a way that might not have pleased either of the parties and comes closer to Gordon’s view.

the history Both the introduction and the beginning of Book I of the History indicate the political character of Rousseau’s enterprise. The introduction begins: “In order to know the constitution of the Republic of Geneva well, it is necessary to go back to its origins” (HG, CW 9: 102). In Book I, Rousseau makes it clear that this turn to origins is not simply historical in nature. It is not the history of Geneva, a city whose origin is unrecorded, that he is undertaking, but the history of its present form of government. One might well pose the question of why the history of this government is necessary in order to understand what it is. Would it not be enough to study the way the government is structured and works now? Near the beginning of Book I, Rousseau identifies the problem of analyzing the government of a city like Geneva. Some ancient governments may have been “formed in one piece and founded so to

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52 christopher kelly speak in a single stroke” (HG, CW 9: 103). This is a clear allusion to the ancient practice of relying on a legislator. Rousseau goes on to make this point explicitly: “A single man whose functions were well beyond those of Kings was in this latter case charged with the enterprise, and adopted by the nation, his labor formed a regular system all of whose parts cooperated toward the same end since they were made for each other.” After the dissolution of the Roman Empire, however, this practice was not adopted. Instead, all modern governments “built up successively out of pieces related less in accordance with the public needs than in accordance with private aims – in their irregularities show only the peculiarity of the events that caused them.” This is an extreme example of the process of piecemeal reform that Rousseau described in the Second Discourse. There, poorly founded primitive governments are reformed on an ad hoc basis, generating a series of new problems for every one that is solved. Now, Rousseau indicates that the difficulty caused by ignorance is compounded by the domination of private aims. “There is no longer any other Legislator than force nor other laws than the interest of the more powerful.” Perhaps with a nod to Montesquieu’s discussion of the reform of criminal laws (Montesquieu 1989, 188), Rousseau grants that civil laws are occasionally reformed through the action of a single hand endorsed by the people, but he insists that such reforms never reach the structure of the government itself. Thus, the situation of Europe after the fall of the Roman Empire generated only very defective governments. What could be less promising than governments formed by self-interest and force out of irregular parts? To this point, the argument seems to confirm the view of those who think that good communities depend absolutely on good legislators at the origin. One of the constant tendencies of Rousseau’s writings on practical politics, however, is his effort to show that what looks like a disastrous situation can have benefits. This is true for Corsica and Poland, which his contemporaries tended to regard as hopeless political communities, and it also turned out to be true for Geneva.

what if there is no legislator? The application to Geneva of this description of the lack of legislators at the foundation of modern governments runs contrary to the account of Calvin in the Social Contract. As we shall see, an important part of Rousseau’s argument insists that the Genevans are wrong to understand their political liberty as deriving from the Reformation at all. Indeed, he argues that “the whole present constitution existed before the Reformation” (HG, CW 9: 125). He even goes so far as to claim that, contrary to common opinion, it was the establishment of political independence and liberty that made the success of the Reformation possible. Whatever role Calvin might have had as a legislator as opposed to a theologian would have to be a secondary one. Whether this is a conclusion that Rousseau reached only after his study of the history of Geneva is hard to say. In any event, both the Social Contract and the History of the Government of Geneva argue against the significance of the Reformation, the former by saying that it is Calvin’s legal skill that mattered instead of his theology,8 the latter by insisting that the establishment of political liberty had nothing to do with the Reformation. The clearest thing that it is possible to say is that Rousseau goes to some pains to deny a theological role in the foundation of the Genevan government, but that he takes this tendency farther in the History. He insists that politics is more fundamental in Geneva than religion. From his description of the difference in the foundings of ancient and modern states, Rousseau turns to the question of how one should study the political laws of these different sorts of states. One might expect that the study of laws derived from a legislator would involve studying the original intention of this lawgiver. Only a knowledge of the mind of the founder can give insight into how the laws can be interpreted. Rousseau, however, denies this and moves in the direction of what is now called the original meaning of the laws, a meaning that does not require scrutiny of an original intention that lies beyond the laws themselves. The point is, first of all, that the mind of the legislator is simply beyond the understanding of citizens. This remains true to a large degree even by citizens who have been

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54 christopher kelly formed by the laws. What is not inaccessible to these citizens is the body of the laws themselves. In states formed by legislators, the body of laws is “a regular system all of whose parts cooperated toward the same end since they were made for each other.” The parallel with today’s schools of American constitutional interpretation is not perfect: Rousseau does not suggest that the perception of this system depends on study of the original meaning of terms, although he does not exclude the possibility that this could be useful. The regular system of the body of the laws should remain apparent over time. The entire body of fundamental laws can shed light on the purpose of any one of them. In short, the mind of the founder is accessible in the laws themselves without studying the life of the founder. Having no original legislator, modern bodies of laws lack the systematic character that can come from being established “in a single stroke.” Is it possible to understand something that is entirely lacking in systematic character and, indeed, appears to be entirely incoherent? Such a body of laws is in no condition to be analyzed. Rousseau suggests an alternative method for studying these political institutions, saying that “one must take them at their origin and follow the order of their composition. For one cannot clearly fathom their spirit except with the aid of the circumstances that have produced them and of the effects that those who made them anticipated would arise from them” (HG, CW 9: 103–4). Rousseau begins the History by asserting the importance of a historical investigation for understanding the present Genevan situation, saying “in order to know the constitution of the Republic of Geneva well, it is necessary to go back to the origin. It is necessary to find what the political state of the City was when the present government was established” (HG, CW 9: 102). Such an investigation is meant to show how these apparently arbitrary institutions should function. In fact, establishing exactly when the present government was established turns out to be rather difficult, because there is no moment of legislation as there would have been had Geneva had a legislator. In a sense, ascertaining when the existing government

what if there is no legislator? was established is the entire point of the History. Going back to the source, however, does not mean engaging in “critical or erudite research” that might not be able to succeed (HG, CW 9: 104). The original community was decisively altered by the Roman conquest and the subsequent collapse of the Roman Empire, which left all of Europe in an unprecedented political situation. In this condition, the one stabilizing factor was Christianity, which mediated between the conquered people and the conquerors. The precise nature of the political authority of the Church at Geneva at that time is also impossible to establish with certainty. Fortunately, such certainty is unnecessary. Rousseau says that he believes that the bishop of Geneva “never enjoyed an absolute power,” because he always acknowledged the higher authority of the emperor and the pope. In this situation, he would have accorded some rights to the people. Even if one were to assume that the bishop did claim an absolute sovereignty, “the force of things alone” would have required him to make use of either the counts of Geneva or the dukes of Savoy to defend this sovereignty. This would temper the actual authority of the bishop. Most importantly, it would have increased the importance of the citizens who were needed by each side to counter the other. In sum, “the force of things alone,” without a guiding legislator, laid a foundation for what could become republican liberty. Rousseau’s method here is to adopt the hypothesis most contrary to the case he is making, that of the claim to absolute sovereignty of the bishop. He says that “from this sole hypothesis well applied one can deduce the whole system of the constitution” (HG, CW 9: 105). Even in his strongest formulations of this hypothesis, Rousseau is careful to say that the bishop exercised sovereignty rather than that he truly was sovereign. By any possible hypothesis about the origins – either an early establishment of the rights of the people or an early establishment of a supposedly absolute bishop who was unable to function absolutely – Geneva existed for several centuries with this uneasy balance. Thus, even if one cannot know

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56 christopher kelly how the government was established, “at least one will know very exactly what it was, and that is the sole object that [Rousseau] proposes for [himself] in this writing” (HG, CW 9: 105). If Rousseau’s hypothesis about the bishop is wrong and he willingly restricted his claims, Rousseau’s interpretation of events would be all the more true. Whatever his own claims about sovereignty might have been, eventually the bishop had to rely on the count of Geneva and the people against the pretensions of the dukes of Savoy. This further solidified the power of the people. Rousseau goes so far as to say that in this situation Geneva “was much more free than if it had been completely Republican” (HG, CW 9: 112). Although, as I have said, we do not know the extent of the popular franchise at any given time and the situation was certainly fluid over a period of centuries, these franchises were repeatedly affirmed by the bishop, most definitively in 1387, long before the Reformation. The last date to which Rousseau refers in the “History of the Government of Geneva” is September 14, 1529, which marked the establishment of a court of justice. What appear to be and, indeed, were the disadvantages of authority divided between the Church and the counts and the pressure from a hostile neighbor provided an opportunity. If neither Calvin nor anyone else was the legislator of Geneva, what does this tell us about both Geneva and other communities similarly situated? The point of Rousseau’s analysis of the history of the government of Geneva is not to demonstrate the working of a historical process that produces republican liberty by a sort of inevitability. Geneva could easily have been conquered by Savoy, and it could have developed a more despotic government than it did. Other small cities were in comparable circumstances and ended with different degrees of liberty. Moreover, a liberty based on accidental internal and external circumstances is unlikely to endure by itself. The circumstances will surely change over time. Even if they do not, over the long run they can produce results that are quite different from the ones they produced in the short run.

what if there is no legislator? This is particularly true if they are based on the tension of opposing forces as they were in Geneva. In the event, major changes of varying degrees of importance did occur in Geneva’s situation. The first of these changes is the gradual reduction of the threat from outside, namely Savoy. One might think that the reduction of this threat would help to solidify Genevan liberty, but Rousseau cautions against leaping to this conclusion, asking “having become independent of all foreign power, is it more free than before? It would not seem that that should be a question. Nevertheless it is a question that one must not be in a hurry to pronounce upon” (HG, CW 9: 122). The external threat of Savoy might well have served as a salutary check on the internal forces intent on dominating the others. What most people are likely to regard as a fatal disadvantage – fear of a foreign power – can help to reinforce liberty under certain circumstances. In this case, factions or individuals are kept in check by the prospect of their rivals appealing for outside help. Having called into question the benefit of independence, Rousseau turns to the most significant internal change in Geneva, namely the success of the Reformation. A large part of what is novel in the History of the Government of Geneva is Rousseau’s account of these effects. All sides in the political disputes that plagued Geneva through Rousseau’s life insisted that they were the true guardians of the political liberty that had been established on the basis of the Reformed Church. To many inside and outside of these disputes, that connection between the Reformation and political liberty is clear. It is on this issue that Rousseau takes a quite unorthodox view. Rousseau insists that republican liberty was established under and (somewhat unwittingly) by the Catholic bishops and thus preceded the Reformation. Indeed, Rousseau goes farther. Not only was the Reformation not the cause of political liberty; in Geneva, at least, political liberty was the cause of the success of the Reformation. He concludes: in sum the whole present constitution existed before the Reformation, and you will admit that these two revolutions,

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58 christopher kelly far from being linked in the way people imagine, were so in an opposite sense and that the prior establishment of liberty produced that of the reformation. For, having begun to taste independence, the Genevans wished to have it whole and turned against the Church the arms it had given them against the Dukes. (HG, CW 9: 125)

Rousseau treats the Reformation in entirely political terms. If the establishment of Protestantism was a means for securing a republican constitution after the fact, it was not the cause of the establishment of this constitution. If Geneva had remained Catholic, it would probably have been eventually swallowed by France, as Strasbourg was. If Geneva had become Protestant earlier, it would never have achieved real political liberty because it would have lost the support of the bishop of Geneva against Savoy. As it happened, purely accidental causes helped to establish republican liberty in Geneva.

the general will and geneva What are the implications of this account of the history of the government of Geneva? It might seem that we are hardly advanced if the alternative to a legislator is the fortuitous occurrence of accidents that did not need to happen. This conclusion, however, would miss the point of Rousseau’s undertaking in the History. The origins of republican liberty in Geneva might have been accidental, but the fact of this liberty is just as real as it would be if Geneva had been established by a legislator. This history can guide Genevan citizens in their current situation. By understanding how republican liberty came out of the peculiar Genevan situation, they can identify those institutions that sustain it. To be sure, citizens must do more than simply follow what has been established by chance. They must learn to distinguish institutions, laws, and practices that sustain liberty from those that are mere relics from a time when the Catholic bishop and the duke of Savoy both claimed sovereignty.

what if there is no legislator? The spirit of Rousseau’s view on this question is shown very well in the Seventh Letter of the Letters Written from the Mountain, in which he discusses the settlement imposed on Geneva from outside in 1737. This settlement hardly established republican government in Geneva, which, as we have seen, predated it by centuries. Moreover, although it ended a period of turbulence, it represented only an unstable compromise that was embraced by few. Most significantly in Rousseau’s view, it failed to identify the people as the true sovereign (LM, CW 9: 257–8). Nevertheless, Rousseau argues that in spite of its imperfections it would be dangerous to change even the bad parts: Since all the articles in a balance form equilibrium, a single article altered destroys it. The more useful the settlement is, the more harmful it would be mutilated this way. Nothing would be more dangerous than several articles taken separately and detached from the body they strengthen. It would be better that the edifice be razed than shaken. Let a single stone be removed from the vault, and you will be crushed under its ruins. (LM, CW 9: 244–5)

This settlement would surely not have been designed by a superhumanly wise legislator; nevertheless, it does maintain what is left of republican liberty in Geneva. The fact that Genevan institutions might not be as perfect as those formed at one stroke by a semidivine legislator shows that Rousseau does not draw as sharp a distinction between legitimate civil societies founded by legislators and all other civil societies that are necessarily illegitimate. In fact, even societies that are much less free than Geneva can learn from Rousseau’s History to find in their own institutions those things that tend to support their republican life. The fact that even most imperfect societies are not simply illegitimate is connected with an important part of Rousseau’s idea of the general will. The general will is often taken as a normative idea that describes the functioning of an ideal society. Whatever may be the case about this, Rousseau also means the general will to be simply descriptive of the way all societies function.

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60 christopher kelly This can be seen in Chapter I of Book IV of the Social Contract, “That the General Will Is Indestructible.” Rousseau begins this chapter by saying: “As long as several men together consider themselves to be a single body, they have only a single will, which relates to their common preservation and the general welfare” (SC, CW 4: 198). The chapter then proceeds to describe a decline from this unanimity of will to a final term in which “the social bond is broken in all hearts.” The first thing to notice about this progression is that, in every stage prior to the final one, the social bond continues to exist. Indeed, even after describing the final stage, which seems not to be a society at all, Rousseau asks: “Does it follow from this that the general will is annihilated or corrupted? No, it is always constant, unalterable, and pure. But it is subordinate to others that prevail over it” (SC, CW 4: 199). Even in this situation, the general will exists, not as a mere ideal, but as something within the members of the community that they attempt to evade. Even in their desire to be free riders, they do not hope for the destruction of the community altogether. We can put this point in terms of the lessons of the History of the Government of Geneva. Instead of looking at the account of decline of societies in the Social Contract in chronological terms, we can see it as a matter of degree: to the extent that several men together consider themselves to be a single body, and so on. This extent can vary greatly without it being possible to say that no society at all exists. The task for citizens, then, is to grasp the extent to which their community is a community and what the institutions, laws, customs are that maintain it as opposed to destroying it. They must work to maintain these institutions against their subversion by the government. As Rousseau puts it near the conclusion of the Letters Written from the Mountain, “when one knows where one is and where one ought to go, one can direct oneself without effort” (LM, CW 9: 305). A knowledge of the political history of their government can play a crucial role in this understanding.

what if there is no legislator? From the foregoing discussion, one could still conclude that communities whose laws were founded “at one stroke” by a legislator would be the optimum situation. In a sense, this is unquestionably true. It is, however, also true that even a community with a perfect legislation would suffer decline over time. As mentioned above (p. 42), Rome was one of the few communities in Rousseau’s several lists of those founded by a legislator. He also called the Roman people, “the model of all free Peoples” (SD, CW 3: 4). Nonetheless, the decline of Roman was as inevitable as that of any other community. Indeed, that decline was hastened by its devotion to its old institutions. In the Social Contract, Rousseau endorses its change from public voting to secret ballots, acknowledging that Cicero condemned this change. Rousseau says: “But although I am aware of the weight Cicero’s authority should carry on this point, I cannot share his opinion. I think, on the contrary, that the downfall of the State was hastened because more changes of this sort were not made” (SC, CW 4: 210). In any given set of circumstances, it is necessary to judge whether particular institutions and practices are continuing to support republican government. Those that are should be supported in spite of any evident flaws and those that are not should be replaced. To conclude, we can put this teaching about the proper perspective of citizens in communities that did not have the good fortune of being founded by legislators in terms from the beginning of Chapter I of Book I of the Social Contract. Rousseau famously begins, “Man is/was born free, and everywhere he is in chains” (SC, CW 4: 131). He concludes the paragraph saying, “How did this change occur? I do not know. What can make it legitimate? I believe I can answer this question.” It should never be forgotten that Rousseau does not claim that his goal is to show how to free men from their chains. Rather, the goal is to show how the chains can be legitimated. This sobering statement of the goal warns us that even the best community founded by the best legislator is still characterized by chains. What the History of the Government of Geneva shows us is that even a poorly formed

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62 christopher kelly government can have a large degree of legitimacy, which should be a consolation and inspiration for those of us who do not see a legislator on the horizon.

notes 1. I leave aside cases in which the contract is merely hypothetical, as in John Rawls’s A Theory of Justice. The considerations I am raising apply only when real consent by living people is required. 2. Individual works by Rousseau will be cited from Collected Writings of Rousseau, 13 vols. Hanover, NH: Dartmouth College/University Press of New England, 1990–2010 by the following abbreviations, with the designation CW followed by the volume number and pages of the relevant volume: Considerations on the Government of Poland: Poland; Discourse on the Origin of Inequality: SD; History of the Government of Geneva: Geneva; Letters Written from the Mountain: LM; On the Social Contract: SC; Observations by Jean-Jacques Rousseau of Geneva on the Reply Made to His Discourse: Observations. Correspondence complète: CC (Correspondence complète de Jean-Jacques Rousseau, ed. R. A. Leigh. 51 volumes. Geneva: Institut et Musée Voltaire). 3. Montesquieu makes his statement in the Considerations on the Causes of the Greatness of the Romans and Their Decline. 4. Aside from the editorial remarks to editions of the History, the one substantive scholarly treatment of the work is in Terrasse 1970, 147–55. Terrasse limits himself to correcting errors of transcription by previous editors and historical errors in Rousseau’s narrative. 5. The letter in which Rousseau says this has often been taken as evidence of Rousseau’s lack of knowledge of Genevan politics at this point in his life. Helena Rosenblatt has shown convincingly that Rousseau, in fact, had close relations with Genevan activists beginning at an early age (Rosenblatt 1997). There is no contradiction here. What Rousseau claims is that he lacks detailed knowledge of the history of the government of Geneva. That would be quite compatible with having detailed knowledge of events of the preceding twenty-five years. 6. Most notable is the collective work of Bernardi, Guénard, and Silvestrini (2005).

what if there is no legislator? 7. Even if one gives a looser reading of Rousseau’s statement, it should still be read in the light of his later claim that “the ecclesiastical Ordinance has received from the Sovereign in the general Council the same sanction as the civil Edicts” (LM, CW 9: 202). In other words, both the ordinance and the edicts depend on the General Council, which is not established by either. 8. It should be kept in mind that Calvin’s education was a legal one, not a theological one. This fact is mentioned in one of Rousseau’s transcriptions from his sources about Genevan history. See Rousseau 2012d, 148.

63

4

Rousseau’s Republican Citizenship The Moral Psychology of The Social Contract Robin Douglass

The fatherland cannot subsist without freedom, nor freedom without virtue, nor virtue without citizens. (DPE 154/259)1

Jean-Jacques Rousseau never completed his projected volume on Political Institutions, from which the Social Contract was drawn.2 In this chapter, I take seriously the idea that his “short treatise” provides us with an incomplete understanding of his wider political thought. At the end of the Social Contract, Rousseau indicated that the larger volume would have discussed matters of foreign policy and international relations (SC IV.9), but there are also places within the main text where the scope is narrowed in ways that leave his arguments tantalizingly underdeveloped. One of the most striking examples occurs in the chapter on the “Classification of Laws,” where Rousseau claims that only “political laws” are relevant to his subject, by which he means the constitutional laws that regulate the relationship between the sovereign and the state through intermediary bodies such as the government. In focusing on political laws, he clarifies that his subject is neither civil laws, nor criminal laws, nor even the “most important” laws of all that should be “engraved in the hearts of the citizens”; that is, the laws of “morals, customs, and especially of opinion – a part of the laws unknown to our political thinkers, but on which the success of all the others depends” 64

rousseau’s republican citizenship 65 (SC II.12). Rousseau was adamant that the success of political institutions depends on the character of the citizens, who must be motivated to place the common interest of the state above their private interest whenever the two conflict. Yet he did not elucidate the moral psychology of republican citizenship in the Social Contract itself, at least not in any detail. Once we recognize that there are notable gaps in the coverage of the Social Contract, the question arises: where should we turn to fill them? One of my aims in this chapter is to show that where we turn matters, for it is easy to come away with very different impressions of Rousseau’s thought by focusing on different texts. In particular, this chapter challenges liberal-egalitarian (or liberal-rationalist) interpretations of Rousseau that rely on Emile to fill in the gaps of the Social Contract. As early as 1963, John Rawls turned to the moral psychology of Emile as inspiration for his own reflections on the need for citizens to have a moral personality characterized by “the capacity for a sense of justice” (Rawls 1999a, 96–116; see also Rawls 1999b, 402–3),3 and at Harvard his students were taught that in “Emile Rousseau discusses the psychological theory which he thinks makes a well-regulated society both possible and stable” (Rawls 2007, 211). More recently, Frederick Neuhouser (2008, 19–23) has argued that Emile and the Social Contract are “complementary and compatible texts.” The aim of Emile’s education “is to produce a ‘mancitizen’ . . . who possesses the capacities required to embrace the general will,” and the project of the Social Contract is thus “constrained by the moral ideal ‘man’ that figures so prominently in Emile.” Similarly, Anna Stilz (2009, 115) draws heavily on Emile to articulate a “liberal and rationalist theory of civic solidarity,” which supports the model of freedom set out in the Social Contract and offers a solution to the problem of cultivating citizenship in modern democratic states. The appeal to Emile in Stilz’s work is coupled with a decision to turn away from other texts that offer a “cultural nationalist” account of solidarity; indeed, she maintains that the liberal-rationalist and

66 robin douglass cultural-nationalist strands of Rousseau’s account of citizenship are incompatible (Stilz 2009, especially 130–5). As we shall see, a common feature of liberal-egalitarian interpretations of Rousseau is that they focus principally on the Social Contract while downplaying the importance of other writings that cast his politics in a very different light. Consider, for example, Joshua Cohen’s (2010, 5 and passim) defense of the “egalitarian-democratic ideal of a free community of equals” set out in the Social Contract, which resists endorsing the “communitarian political sociology” found in texts such as the Considerations on the Government of Poland. To counter these interpretations, I first show that Emile’s education does not provide a model of citizenship for the Social Contract, thereby undercutting liberal-egalitarian (and also cosmopolitan) interpretations of Rousseauian citizenship. I instead argue that the Discourse on Political Economy is the most (but not only) informative text for understanding the theory of republican citizenship required to make the project of the Social Contract viable, and in doing so I elucidate the moral psychology underpinning Rousseau’s proposals for instilling love of fatherland (amour de la patrie) in citizens. Given the extent to which these proposals draw on his admiration of the public education of ancient polities, I then address the objection that this cannot have been what Rousseau had in mind for his native Geneva, which he claimed to have taken “as the model of political institutions” for the Social Contract (LM 233/809).

the social contract and emile There is a long-standing debate about the relationship between Emile – in particular, the character Emile – and the Social Contract (for a helpful overview, see Warner 2015, 28–32). At one extreme, Geraint Parry (1988, 249) stresses that Emile’s education is set out “in total and intended contrast to the education for citizenship.” At the other extreme, Maurizio Viroli (1988, 105) claims that it “is easy to imagine Emile in Sparta or Rome during the republic or still

rousseau’s republican citizenship 67 more so the just republic envisaged by the social contract.” Neuhouser offers one of the strongest defenses of the view that Emile’s education provides a model of political citizenship for the Social Contract, even if not for ancient polities such as Sparta and Rome. Neuhouser’s argument rests on an ingenious reinterpretation of a passage that is often taken as decisive evidence against his position. Having outlined three forms of education (coming from nature, men, and things), Rousseau argues that ideally they should all be combined toward the same goal, but when the goals of each are opposed then “their harmony is impossible. Forced to combat nature or the social institutions, one must choose between making a man or a citizen, for one cannot make both at the same time” (E 163/248). This passage appears to indicate a choice between two mutually exclusive options: Emile is to be educated either as a man or as a citizen. Neuhouser argues otherwise by focusing on the last few words. When Rousseau claimed that you cannot educate a man and a citizen “at the same time,” Neuhouser contends, he did not mean that these are two irreconcilable alternatives, but only that they cannot be pursued simultaneously. Emile is to be educated as a man first and then as a citizen (Neuhouser 2008, 20–1, 172, 260; see also Stilz 2009, 118–19).4 At one point, Rousseau suggests that we shall later discover whether Emile “is a man or a citizen, or how he goes about being both at the same time” (E 165/250), which lends some support to Neuhouser’s argument that Emile could be a “man-citizen.” Yet the explanatory emphasis Neuhouser places on “not at the same time” does not fit so well with the rest of the passage in question. Most notably, it would seem to entail that Emile will have the worst – not the best – of both educations, given that they are opposed and their “harmony is impossible” (a claim not temporally qualified). To attempt to preserve the sentiments of nature in the social order, Rousseau further explains, would leave the individual “in contradiction with himself, always floating between his inclinations and his duties, he will never be either man or citizen” (E 164/249–50).

68 robin douglass The choice between educating a man or a citizen maps onto Rousseau’s distinction between “individual and domestic” education (for a man) and public education (for a citizen). His examples of public education are drawn from ancient Rome and Sparta, which demonstrate that: Good social institutions are those that best know how to denature man, to take his absolute existence from him in order to give him a relative one and transport the I into the common unity, with the result that each individual believes himself no longer one but a part of the unity and no longer feels except within the whole. (E 164/249)

This idea of ancient citizenship echoes an infamous passage from the Social Contract, where Rousseau writes that the lawgiver must feel himself capable “of transforming each individual, who by himself is a perfect and solitary whole, into part of a larger whole from which this individual receives, in a sense, his life and being” (SC II.7). The public education of the ancients, however, no longer remains a possibility in states such as eighteenth-century France, where Emile is raised: “Public instruction no longer exists and can no longer exist, because where there is no longer fatherland, there can no longer be citizens. These two words, fatherland [patrie] and citizen, should be effaced from modern languages” (E 165/250). This is another passage that echoes the Social Contract: in this case, Rousseau’s claim that the word citizen “has been almost entirely lost among modern men” (SC I.6 n). He appears to have thought that the words fatherland and citizen could still have some place in Geneva, even if their meaning had largely been lost in France. Neuhouser recognizes that Emile’s education is incompatible with ancient citizenship but instead sees Rousseau as offering a model of modern citizenship that navigates the tensions between man and citizen. Even if we grant that Emile is a model of modern citizenship, however, the question remains whether this model informs the arguments of the Social Contract. Here, it counts against Neuhouser’s

rousseau’s republican citizenship 69 interpretation that the closest textual parallels between the two works – both published in 1762 and which (Rousseau at least wanted his French publisher to believe) “together make a complete whole” (CC10, 281) – concern passages on ancient citizenship; most notably, the discussions of transforming individuals so that they come to identify their existence with that of the larger unity. In support of his interpretation, Neuhouser also turns to Book Five of Emile where the tutor summarizes the main points of the Social Contract. Emile requires this knowledge to judge the governments under which he could live while touring Europe, for it “is necessary to know what ought to be in order to judge soundly about what is” (E 649/836–7; Neuhouser 2008, 21, 157). Stilz (2009, 119) too draws on this episode, inferring that “Emile learns the doctrines of the Social Contract and himself becomes a citizen.” But Rousseau suggests nothing of the kind and instead draws a very different conclusion. Having completed his travels, Emile comes to realize that nowhere is the social contract observed or the law respected. The fact that he has no fatherland would make it meaningless to teach him about “the duties of the Citizen,” yet Emile is instead supposed to learn that “he who does not have a fatherland [patrie] at least has a country [pays].” Emile’s freedom “is found in no form of government; it is in the heart of the free man” who follows the “eternal laws of nature” rather than the positive laws of any states (E 666–7/857–8). This is a far cry from the civil and moral freedom secured by living under the legitimate laws of a well-constituted state (SC I.7). There is little evidence to suggest that Emile would make a good citizen for a republic modeled on the Social Contract, and plenty to indicate that this was not Rousseau’s intention. This considerably undermines liberal-egalitarian interpretations of Rousseauian citizenship that draw heavily on Emile. Neuhouser (2008, 22) argues that modern citizens “value themselves as individuals” and “submit to the general will only on the basis of their own rational insight into the goodness of the laws,” thereby displaying “rational selfsufficiency” even when socially dependent. Stilz (2009, 119, 125–30)

70 robin douglass likewise stresses the importance of citizens’ rational understanding of how the state secures their equal freedom, such that they are educated “to reflectively free citizenship.” Neuhouser and Stilz both contrast this modern education, based on Emile’s upbringing, with the education of the ancients and consider that the latter imperils the possibility of rational and reflective citizenship. But the relevant passages from Emile indicate that it is the public education of the ancients – and not Emile’s domestic education – that is more likely to underpin the project of the Social Contract, a text where Rousseau was more than happy to turn to republican Rome to “consider what can be done on the basis of what has been done” (SC III.12). The more general lesson to take from the foregoing analysis is one of skepticism toward interpretations of Rousseauian citizenship that draw largely on Emile’s education. In addition to the points about rational and reflective citizenship, this should leave us cautious about accepting the related thesis that the moral psychology of the Social Contract relies on harnessing the sentiment of pity (pitié) in the same way that Emile’s upbringing does – a view sometimes endorsed by liberal-egalitarian interpretations (e.g., Cohen 2010, 124–7). In Emile, Rousseau explains how humans become sociable creatures through the development of pity, which involves extending the love that every individual naturally feels for themselves (amour de soi-même) to others. All our sentiments originate in love of self (E 363/491), but, as our imagination develops, we start to extend this love outside of ourselves to identify with the sufferings of others. We imagine how we would feel if we were in someone else’s place and start to experience their suffering ourselves (E 374/505). This is how we first come to care for others in something like the way we care for ourselves. Rousseau’s claim that all our sentiments originate in love of self concerns human nature in general, not Emile specifically. As we shall see, his explanation of how love of self can be extended beyond the individual and toward others is key to understanding his theory of republican citizenship, and there is a sense in which psychological mechanisms similar to those of pity are at play.5 But the pivotal role of

rousseau’s republican citizenship 71 pity in Emile’s education should not lead us to conclude that Rousseau’s account of patriotism is also based on pity (cf. Masters 1968, 48–53),6 precisely because Emile is not educated for republican citizenship. Indeed, in Emile Rousseau focuses more on how pity can lead us to develop a general love of humanity rather than love for our particular state. He argues that pity should “be generalized and extended to the whole of mankind” so that we “have pity for our species still more than for our neighbor” (E 409–10/548). This is one of several occasions where Rousseau appeals to a sense of justice and humanity that transcends the common interest and general will of any particular state (see Rosenblatt 2008; Cavallar 2012; Neidleman 2012). What is striking, however, is that none of these cosmopolitan moments appear in either the Social Contract or other writings where Rousseau sets out his political proposals in detail.7 Even if Emile is educated to be a cosmopolitan who loves humanity, then, it is unclear that this would be the case for citizens of a republic modeled on the Social Contract. Indeed, Rousseau repeatedly insists that cosmopolitanism and patriotism are incompatible (pace Cavallar 2012, 489). His most unequivocal statement to this effect occurs in the first of his Letters from the Mountain, when defending his argument from the Social Contract that Christianity is “pernicious for society” because it inspires “humanity rather than patriotism” and tends “to fashion men rather than Citizens.” He notes that: Patriotism [patriotisme] and humanity, for example, are two virtues incompatible in their energy, and especially among an entire people. The Legislator who wants them both will get neither one nor the other. This compatibility has never been seen and never will be, because it is contrary to nature, and because one cannot give the same passion two aims (LM 149/706; see also DPE 151/254–5; SC IV.8)

If we are forced to choose between patriotism and humanity – as Rousseau also affirms in Emile when discussing the difference between educating a man or a citizen (E 163–4/248–9) – then evidence

72 robin douglass for reading Emile as a cosmopolitan should count against reading him as a model citizen for the Social Contract. Emile may reveal a great deal about the moral psychology of someone with humanitarian sentiments living in a corrupt society, but it tells us far less about the moral psychology of a patriotic citizen living in a wellordered republic. My conclusions thus far have been negative. We should not turn to Emile’s education to fill in the gaps regarding republican citizenship from the Social Contract. This counts strongly against prominent liberal-egalitarian interpretations of Rousseau’s theory of citizenship, as it does the idea that citizens of a legitimate republic may be moved by a cosmopolitan love of humanity. Republican citizenship instead relies on patriotism. To understand its moral psychology, we must look elsewhere.

the social contract and discourse on political economy In the Social Contract, Rousseau rebukes Montesquieu for failing to see that political virtue must be the principle of all legitimate states (SC III.4).8 Montesquieu ([1748] 1989, iv.5, also v.2) defined political virtue as “love of the laws and the fatherland [patrie],” and Rousseau conceptualizes virtue in very similar terms.9 Yet he has relatively little to say about how to instill and maintain virtue in the Social Contract itself, this being a theme he explores in far greater detail in other works, most notably the Discourse on Political Economy and his proposals for Corsica and Poland. These are the texts that offer us the most illuminating picture of Rousseauian citizenship. For present purposes, I focus predominantly (although not exclusively) on Political Economy. The relationship between the Social Contract and Rousseau’s writings on Corsica and Poland is more complex. Even though he claims in the Social Contract that Corsica is the one place in eighteenth-century Europe still capable of receiving good laws (SC II.10), he clearly did not write the work for Corsica. Nor did he write it for Poland, even if he refers the reader of

rousseau’s republican citizenship 73 his Considerations on the Government of Poland to the Social Contract no fewer than six times. The proposals for Corsica and Poland are, by their nature, intended for a very specific political context and we should thus be careful about reading too much from them back into the Social Contract.10 Political Economy, by contrast, was commissioned as the entry on the topic for the fifth volume of Jean d’Alembert and Denis Diderot’s Encyclopedia, where it first appeared in 1755. Its topic is political economy in general, not the politics of any given state. Where the Social Contract sets out Rousseau’s most general account of a legitimate constitutional order, Political Economy supplies his most general account of the maxims of legitimate government. There are strong overlaps between the main arguments of the two works – most notably, that it is to law in accordance with the general will that “men owe justice and freedom” (DPE 146/248) – but in Political Economy Rousseau focuses more on public education, citizenship, and economic policies.11 Political Economy outlines three maxims of legitimate government. First, the government must follow “the general will in all matters” (DPE 145/247). This not only entails the government ruling in accordance with the law, but also ensuring that all citizens obey and respect the law. The latter goal leads into the second maxim – our main concern presently – which Rousseau sets up in a striking passage: If it is good to know how to use men as they are, it is better still to make them what one needs them to be. The most absolute authority is that which penetrates to the inner man and is exerted no less on his will than on his actions. It is certain that people are in the long run what government makes them. . . . If you want the laws to be obeyed make them beloved, so for men to do what they should, they need only think they should do it. That was the great art of the governments of antiquity, in those remote times when philosophers gave laws to peoples, and only used their authority to make them wise and happy. . . . But our modern governments,

74 robin douglass which think they have done all there is to do when they have collected money, don’t even imagine that it is either necessary or possible to go that far. (DPE 148–9/251–2)

The second maxim is thus concerned with ensuring that citizens act and will in accordance with the general will, for which they must come to love the laws. Since “virtue is only this conformity of the private will to the general, to say the same thing briefly, make virtue reign” (DPE 149/252). The key to making citizens virtuous is instilling love of fatherland (amour de la patrie), which produces “the greatest miracles of virtue” and the ecstasies of which are “a hundred times more ardent and delightful than that of a mistress” (DPE 151/254–5). But how to inculcate love of fatherland among the citizens? Part of Rousseau’s answer is to guarantee that the laws protect all citizens, justice is observed, and extreme inequalities of wealth are avoided. Only under such conditions would the laws truly be in the common interest of all. Arguably the most important part of his answer, however, is to teach children their duties from the earliest age, and public education (of the very sort he eschews for Emile) is “therefore one of the fundamental maxims of popular or legitimate government” (DPE 156/260–1). As in Emile, Rousseau’s examples of successful public education all come from the ancient world: Rome, Sparta, and Macedonia. While Rousseau spends some time detailing the policies that could cultivate love of fatherland, his remarks on the psychological mechanisms to which they appeal are relatively brief. Nonetheless, I think there are at least two psychological mechanisms at play.12 The first can be inferred from his claim that love of fatherland combines the “force of amour-propre with all the beauty of virtue” (DPE 155/255). In a note to the Discourse on the Origin of Inequality (first published in 1755, the same year as Political Economy), Rousseau distinguishes between two forms of self-love: amour de soi-même and amour-propre. While the former “is a natural sentiment which inclines every animal to watch over its own preservation,” the latter

rousseau’s republican citizenship 75 “is only a relative sentiment, artificial and born in Society, which inclines each individual to have a greater esteem for himself than for anyone else” (DOI 91/219). Amour-propre is concerned with our relative standing in comparison to others and, crucially, depends on how other people think of us. If others regard us highly then our amour-propre is satisfied.13 In a well-constituted state, amourpropre could motivate political virtue. If our private wills are aligned with the general will and we do “what is wanted by the people we love,” then our fellow citizens will regard us highly, thereby satisfying our desire for esteem. When virtue itself is held in high esteem, ambition is best served by performing our duties (DPE 150–1/254). This idea recurs throughout Rousseau’s proposals for Corsica and especially Poland, where public education should accustom children “to living under the eyes of their fellow citizens and to desiring public approval” (Poland 181/968; more generally, see Corsica 153–4/937–8; Poland 176, 222/962, 1019). As is now well known, Rousseau argues that amour-propre has the potential to be directed toward either vice or virtue. In societies characterized by economic inequality and competition, amour-propre leads us to become deceitful and vicious, but in societies based on the general will, amour-propre could motivate us to become public spirited and virtuous. This is why public opinion is so important for Rousseau’s politics: the object of amour-propre is the opinion of others, so the content of that opinion is crucial in determining whether the passion leads to virtue or vice (see also LA 300/61–2; SC IV.7). This appeal to amour-propre, however, could be taken to imply that the moral psychology of political virtue is purely instrumental: being virtuous is in our (enlightened) self-interest because others will then think highly of us. Seen this way, Rousseau’s theory of citizenship is less about denaturing or transforming individuals and more about redirecting their amour-propre toward a common good (Maloy 2005, 249–50; Hanley 2008, 226–30). While this certainly captures part of his theory, it does not tell the full story. Here, it is worth noting that in the Plan for a Constitution for Corsica Rousseau

76 robin douglass distinguishes between vanity (vanité) and pride (orgueil) as “the two branches of amour-propre.” The main distinction is that vanity is concerned with superficial and frivolous objects, whereas pride can extend to “objects great and beautiful.” Rousseau also claims that where “vanity is individual,” pride can be “the instrument of such a great thing as forming the body of the nation” (Corsica 154/937–8). His argument here could simply be that appealing to the citizens’ pride can lead to the good of society, which is not true of their vanity. Another possibility, however, is that citizens take pride in the glory of their fatherland itself, and this satisfies their amour-propre; indeed, this is a much more plausible understanding of what love of fatherland really entails. What is more, the possibility that amour-propre can take a more general object than the reputation of the individual alone fits well with the second psychological mechanism at play in cultivating love of fatherland: the extension of one’s sense of selfhood to the level of the state. Earlier, I quoted passages from the Social Contract and Emile on how public education and the lawgiver should denature individuals and transform their existence into a common unity. Rousseau’s discussion of public education in Political Economy anticipates those later passages: But it must also be granted that although men cannot be taught to love nothing, it is not impossible to teach them to love one object rather than another, and what is truly beautiful rather than what is deformed. If, for example, they are trained early enough never to consider their persons except as related to the body of the State, and not to perceive their own existence, so to speak, except as part of the state’s, they will eventually come to identify themselves to be members of the fatherland; to love it with that delicate feeling that any isolated man feels only for himself; to elevate their soul perpetually toward this great object; and thereby to transform into a sublime virtue this dangerous disposition from which all our vices arise. (DPE 155/259–60)14

rousseau’s republican citizenship 77 At the heart of Rousseau’s theory of public education is the idea that citizens cease to think of themselves solely as individuals and come to identify their existence with a larger whole (see also Poland 179/ 966). Although our passions cannot be destroyed, they can be directed toward many different objects. It is in this context that Rousseau proposes cultivating love of fatherland through an extension of that “delicate feeling that any isolated man feels only for himself” to the level of the state. The “delicate feeling” in question appears to be our natural love of self (amour de soi-même) (see also Trachtenberg 1993, 134). When discussing pity in Emile, Rousseau shows how the love we feel for ourselves can be extended outward so that we identify with the suffering of others. But here he seems to be suggesting something more radical: it is the very sense of selfhood that is being extended outward so that citizens come to identify themselves as a part of a larger whole. In Emile, Rousseau points out that the sentiment of pity involves a certain level of detachment: it “is sweet because, in putting ourselves in the place of the one who suffers, we nevertheless feel the pleasure of not suffering as he does” (E 373/261). None of this detachment is found in Rousseau’s account of the virtuous citizen, however, who truly loves the fatherland with the same passion that “any isolated man feels only for himself.” When “children are raised in common in the midst of equality,” public education can shape the development of their passions so that they come to identify themselves first and foremost as citizens, not as individuals (DPE 156/261). Such citizens would truly internalize the “moi commun” instigated by the social pact that brings a legitimate state into being (SC I.6). The Social Contract is rightly taken as Rousseau’s most important statement of what freedom entails in the civil state, yet in Political Economy he declares that freedom cannot survive “without virtue, nor virtue without citizens” (DPE 154/259). The constitutional framework set out in the Social Contract will prove viable only if citizens do actually will the general will, which is precisely why political virtue – the “conformity of the private will to the general” (DPE 149/252) – is so crucial. The model of virtuous citizenship that

78 robin douglass Political Economy offers, however, is very different from the liberalegalitarian one discussed in the previous section (as proponents of the latter acknowledge), precisely because the level of identification it requires seems in tension with, and may even preclude, the ability to stand back and rationally reflect upon one’s relationship with the state. Stilz (2009, 136) captures this point nicely when she writes that Rousseau’s appeals to cultural identification “threaten to subvert the politics of pure self-determination that he values.” Yet, if I have been right to argue that Political Economy is the most informative text for filling out the moral psychology of the Social Contract, then we should question the extent to which the Social Contract was ever committed to the politics of pure self-determination in the first place, at least if the self in question is supposed to be that of a rational and reflective individual.

political virtue in geneva? If Political Economy supplies the model of republican citizenship underpinning the Social Contact, is it one that Rousseau deemed relevant for understanding politics in the modern world? This question is particularly important given the place of Geneva in his thought. In the previous section, I claimed that Political Economy and the Social Contract both provide us with general accounts of Rousseau’s political thought, at least compared with his writings for Corsica and Poland. To this, however, it could reasonably be objected that I have neglected the extent to which the Social Contact was written with Geneva in mind. Attending to the Genevan context might seem to offer a different vision of the moral psychology underlying his politics.15 Where Political Economy and other works look to the republics of antiquity as exemplars of political virtue, Rousseau, according to some commentators, thought that “ancient politics had no place even in the relatively small-scale setting of a city like Geneva” (Sonenscher 2017, 313). Indeed, it has recently been argued that Rousseau’s politics is instead based on “commercial sociability” (Hont 2015; cf. Douglass 2018), an idea which draws on Adam Smith’s

rousseau’s republican citizenship 79 ([1759] 1982, 86) famous remark that society “may subsist among different men, as among different merchants, from a sense of its utility, without any mutual love or affection.” Evidence in support of this reading comes from the ninth of Rousseau’s Letters from the Mountain, written in defense of the Social Contract: Ancient Peoples are no longer a model for modern ones; they are too alien to them in every respect. You above all, Genevans, keep your place, and do not go for the lofty objects that are presented to you in order to hide the abyss that is being dug in front of you. You are neither Romans, nor Spartans; you are not even Athenians. Leave aside these great names that do not suit you. You are Merchants, Artisans, Bourgeois, always occupied with their private interests, with their work, with their trafficking, with their gain; people for whom even liberty is only a means for acquiring without obstacle and possessing in safety. . . . Your Citizens, completely absorbed in their domestic occupations and always cool about the rest, consider the public interest only when their own is being attacked. (LM 292–3/881)

This passage is regularly cited as conclusive evidence that Rousseau did not aim to revive the politics of antiquity in modern states such as Geneva (Cohen 2010, 36; Tuck 2016, 141–2; Sonenscher 2017, 329; Tuck 2017, 58; Viroli 2017, 12). For present purposes, its importance rests on the fact that it challenges the idea that the politics of Geneva – and, by implication, the Social Contract – relied on citizens being motivated by love of fatherland in anything approaching the way suggested by my analysis of Political Economy. To address this objection, it helps to remember that by the mid1760s Rousseau had become a lot more disillusioned with Geneva and pessimistic about its prospects. This is unsurprising given that the government banned Emile and the Social Contract soon after their publication and issued a warrant for Rousseau’s arrest, leading him to go into exile in Neuchâtel and renounce his Genevan citizenship. Indeed, commentators who cite the passage above rarely note the

80 robin douglass extent to which it appears to contradict some of his earlier writings and that in the late 1750s he had defended himself against the criticism that his invocations of the republics of antiquity were irrelevant for understanding Genevan politics. As we have seen, the strongest invocations in Political Economy are found in Rousseau’s discussion of public education, where he claims that when “the world became divided into nations too large to be well governed, this method was no longer practicable” and has thus never been tried among modern peoples (DPE 156/260–1). Geneva, however, was not a large nation but a small city, and government reform of education had become a divisive issue there during the early 1750s. As Helena Rosenblatt (1997, 209–19) has shown, Rousseau’s discussion can thus be read as an intervention in these debates by arguing for an education based on civic concerns rather than on promoting the commercial interests prioritized by the government at the time. Many of its early readers considered Political Economy especially relevant for Genevan politics, and it was first published in a standalone edition there in 1758.16 This was the same year as the publication of Rousseau’s Letter to d’Alembert, which provides the clearest indication of the extent to which he thought ancient politics remained relevant for Geneva. The Letter – a response to Jean d’Alembert’s article on Geneva in the seventh volume of the Encyclopedia (1757) – is mainly devoted to arguing that Geneva should not establish a theatre. In doing so, Rousseau praises the “antique simplicity,” “austere parsimony,” and “hard work, economy, and moderation” of his fellow citizens, all of which the theatre would corrupt. Yet Genevans would not even attend a theatre were one established “because the good of their Fatherland is dearer to them than their amusement,” and they have “motives of morals, of virtue, and of patriotism” to restrain them (LA 319–22/85–9). Rousseau instead offers a qualified defense of the Genevan cercles, the small societies where men come together to socialize and which “still preserve some image of ancient morals among us,” for there citizens “dare to speak of fatherland and virtue without passing for windbags” (LA 328/96). While the theatre has no

rousseau’s republican citizenship 81 place in a republic, Rousseau concludes the Letter by proposing public festivities and entertainments modeled on those that Lycurgus instigated for Sparta, “which I shall have never cited enough as the example we ought to follow” (LA 349/122). In response to the Letter, Théodore Tronchin wrote to Rousseau criticizing his advocacy of Spartan public education and claiming that what was appropriate for Greek republics is no longer so for Geneva, where all the citizens are artisans. Tronchin insisted that the cercles and public festivals that Rousseau praised are instead sources of distraction, which harm the domestic education appropriate for a city like Geneva by separating fathers from their children (CC 5, 219–21). The fact that Tronchin focused some of his attention on public education suggests that he probably had both Political Economy and the Letter to d’Alembert in mind. In his reply, Rousseau defends the morals of Genevan artisans, who, unlike their French counterparts, remain good citizens; “at twelve I was a Roman,” he remarks, reminiscing about his own upbringing as the son of a watchmaker. He grants that Geneva is very different to ancient Greece, but, against Tronchin’s insistence that public education has no place in the former, he instead recommends that Geneva forge a middle path “between the public education of the Greek Republics and the domestic education of Monarchies, where all the subjects must remain isolated and have nothing in common except obedience” (CC 5, 241–42; see also Miller 1984, 34; Rosenblatt 1997, 230–1). Rousseau had, in fact, both anticipated and answered Tronchin’s objection in the Letter to d’Alembert itself, acknowledging that “whatever esteem I have for my fellow citizens, I know too well how far it is from them to the Lacedaemonians; and I propose for them the Spartan institutions of which they are not yet incapable” (LA 350/122, also 300/61). This remark probably best captures the degree to which Rousseau considered ancient politics relevant for eighteenthcentury Geneva. Although he clearly recognized that Geneva was no Sparta, ancient polities like Sparta and Rome remain exemplars,

82 robin douglass which Geneva should try to approximate as far as possible. In this respect, there is nothing incoherent about looking to the republics of antiquity to understand how to instill political virtue in citizens through public education, festivals, or other means. These are not examples that Geneva (or even Corsica or Poland) could replicate perfectly, but they are the best examples from which such states could learn if they were to have any chance of creating citizens worthy of the freedom that the Social Contract prizes. The Letter to d’Alembert, then, indicates that Rousseau thought that his ideal of republican citizenship, inspired by the ancients, could still be approximated in a small city-state republic like Geneva, which had not yet been (irredeemably) corrupted by modern arts, luxury, and inequality.17 If this is the case, however, then what are we to make of Rousseau’s claim in the Letters from the Mountain that ancient societies are no longer a model for modern ones? It is important to notice that this claim immediately follows his reminder that in the Social Contract he had in fact offered the example of ancient Rome as a model of political liberty for Genevans (LM 291–2/879–80), yet now he advises them not to “go for the lofty objects that are presented to you in order to hide the abyss that is being dug in front of you.” The passage, it should be clear, is an indictment of the current situation in Geneva. The fact that citizens are mostly self-interested imperils rather than safeguards their freedom. This is quite consistent with the Social Contract itself, where Rousseau argues that the “better constituted the State, the more public affairs dominate private ones in the minds of the citizens” (SC III.15). It is only once love of fatherland is replaced by private interest that the people’s sovereignty is alienated and its freedom lost. While the Social Contract was clearly written with Geneva in mind, it nonetheless sets out a more general model of a legitimate constitution, hence its subtitle: principles of political right. Rousseau never pretended that eighteenth-century Geneva embodied those principles. To the contrary, he maintained that although nothing “is

rousseau’s republican citizenship 83 more free than your legitimate state; nothing is more servile than your actual state” (LM 237/813). The passage from the ninth letter is a withering comment on Geneva’s actual state; the Social Contract a theorization of its legitimate state. By 1768, Rousseau appears to have accepted that, in the case of Geneva, “peace is better than liberty,” resigning himself to being content with the freedom that resides “in the heart of the just man” rather than fighting for anything more (CC 35, 180–1; see also Whatmore 2012, 94).18 When confronted with the reality of Genevan politics as the 1760s progressed, then, Rousseau’s response was not to compromise the principles of the Social Contract (or Political Economy, for that matter), but rather to give up on Geneva. It is less clear the degree to which, in the 1750s, Rousseau thought that Geneva could still revive the legitimate political institutions set out in the Social Contract, or whether that political vision was only ever really suited for the myth of Geneva that had become largely divorced from its reality. Either way, Rousseau’s interventions into Genevan politics up to and including the Social Contract presuppose that virtuous citizens motivated by love of fatherland could still be found, irrespective of how realistic that had become.

conclusion In this chapter, I have challenged a prominent way of reading the moral psychology of the Social Contract, advanced an alternative interpretation, and defended this against the objection that it cannot make sense of the place of Geneva in Rousseau’s thought. Whatever one makes of my overall interpretation, I hope to have demonstrated why we need to think very carefully about the relationship between Rousseau’s different works. There is a prominent way of reading and teaching his political philosophy that turns to the first two Discourses for his critique of modern society, and then to the Social Contract and Emile for his remedies (for a recent example, see the organization of Grace and Kelly 2019, part II). While this approach is not without its merits, if it leads us to read too much of Emile into the Social

84 robin douglass Contract, then it deeply distorts our understanding of the latter text. There are many better places to turn to help us make sense of Rousseau’s political philosophy, chief among which is Political Economy, at least insofar as we hope to understand the moral psychology of republican citizenship upon which the success of the Social Contract’s politics depends. How we understand the relationship between Rousseau’s different works, then, is one of the factors that shapes our interpretation of his political thought. This is only one of many factors, of course, but its implications are considerable. In reassessing that relationship, my general target has been interpretations that take the Social Contract as an inspiration for thinking through what political legitimacy and citizenship could look like in modern states. Some liberal-egalitarian philosophers today are drawn to the Social Contract because it provides a demanding account of political legitimacy, perhaps even anticipating Rawls’s two principles of justice (Cohen 2010, 2; cf. Rawls 2007, 234, and for discussion, see Brooke 2016). If what I have argued here is broadly accurate, we may conclude that the challenge Rousseau poses for us is that of whether you can have demanding accounts of legitimacy without demanding accounts of citizenship. For those attracted to his theory of legitimacy, that challenge is all the more pressing to the extent that his theory of republican citizenship now strikes us as either undesirable or anachronistic. This is not to criticize Rousseau, for it is far from evident that he thought the political vision of the Social Contract could even be approximated in the large modern states of eighteenth-century Europe. It is our mistake, not his, if we too readily assume the enduring relevance of the Social Contract for thinking about modern politics.

notes 1. Most references to Rousseau are given in this form, listing an abbreviated form of the title, followed by page number in English (CW = The Collected Writings of Rousseau, 13 vols., ed. Roger D. Masters and Christopher Kelly.

rousseau’s republican citizenship 85 Hanover, NH: University Press of New England, 1990–2010) and French (OC = Œuvres complètes de Jean-Jacques Rousseau, 5 vols., ed. Bernard Gagnebin and Marcel Raymond. Paris: Gallimard, 1959–95) editions. The following abbreviations are used: C = The Confessions of J.-J. Rousseau (CW 5/OC 1); Poland = Considerations on the Government of Poland and on Its Planned Reformation (CW 11/OC 3); DOI = Discourse on the Origin and Foundations of Inequality Among Men (CW 3/OC 3); DPE = Discourse on Political Economy (CW 3/OC 3); E = Emile, or On Education (CW 13/OC 4); Geneva = The Geneva Manuscript (CW 4/OC 3); LA = Letter to d’Alembert on the Theater (CW 10/OC 5); LM = Letters Written from the Mountain (CW 9/OC 3); Corsica = Plan for a Constitution for Corsica (CW 11/OC 3); SC = On the Social Contract, or Principles of Political Right (CW 4/OC 3). References to SC are given to book and chapter numbers alone. References to Rousseau’s correspondence are given as CC (Correspondance complète de Jean-Jacques Rousseau, 52 vols., ed. Ralph Alexander Leigh. Geneva/Oxford: Institut et Musée Voltaire/Voltaire Foundation, 1965–98) followed by volume and page numbers (translations are my own). 2. Rousseau announces this in a foreword to SC. For additional details see C 339–40, 432/404–5, 516. 3. More generally on Rawls’ attempt to recast Rousseau as a precursor of his own version of political liberalism, see Brooke 2016; Spector 2016; Warner and Zink 2016. 4. For incisive criticism of Neuhouser’s interpretation, some of which I develop here, see O’Hagan 2010, 219–25. 5. In Political Economy, for example, Rousseau claims that “interest and commiseration must in some way be compressed to be activated,” which could then generate love of fatherland (amour de la patrie) by concentrating the “feeling of humanity” among citizens (DPE 151/254–5). More generally, however, references to pity or commiseration are conspicuous by their absence from the Social Contract and other works where Rousseau sets out his political proposals. 6. On the idea that Rousseau invented political or democratic compassion, see Arendt 1963, 68–73; Bloom 1979, 18–19; Orwin 1997. For a nuanced and wide-ranging analysis of pity, see Hanley 2017, 66–103. While I agree with Hanley’s remarks on patriotic love (70–1), I think he is too quick to draw implications from Emile for the moral psychology of the Social Contract (91).

86 robin douglass 7. One possible exception is a passage from the draft Geneva Manuscript, where Rousseau claims that we “conceive of the general society on the basis of particular societies” and “do not really begin to become men until after we have become citizens” (Geneva 81/287; see also Rosenblatt 2008, 66–7; Neidleman 2012, 90). Aside from the fact that this passage did not make the final cut of the Social Contract, it concerns only how we can conceive of a general society of the human race – when no such society has ever existed – and not the sentiments that would bind it together. Rousseau proceeds to argue that the idea of natural right being generalized to a “brotherhood of all men” was developed only by Christianity and was unknown to ancient peoples, for whom the words foreigners and enemies were synonymous (Geneva 81/287–8). See also SC IV.8, where Rousseau claims that the words “Christian Republic . . . are mutually exclusive.” 8. Montesquieu ([1748] 1989, iii.3–4) had famously argued that political virtue is only the principle of republics, where either the entire people (democracy) or a part of the people (aristocracy) are sovereign. Rousseau argues that the state would be legitimate only if the people are sovereign, and thus all legitimate states are republican (SC II.6). 9. In the foreword to the 1757 edition of The Spirit of the Laws, Montesquieu emphasized that political virtue should not be confused with moral or Christian virtue. Although Rousseau never draws this distinction explicitly, keeping it in mind may help to explain why he offers different criteria for virtue in different places (see also Douglass 2015a, 171–2). 10. On the relationship between the Social Contract and Plan for a Constitution for Corsica, see Hill 2017. On Rousseau’s theory of citizenship in his proposals for Corsica, see Schaeffer 2012 and Daly 2021; for Poland, see Smith 2003. 11. On the relationship between Political Economy and the Social Contract, see also Maloy 2005, although I disagree with the extent to which he draws on Emile in support of his argument (at 238 and 252–4). 12. While I distinguish these mechanisms for analytical clarity, many of Rousseau’s proposals work by appealing to both at the same time. See also Trachtenberg 1993, 131–43; Douglass 2015a, 160–7. 13. Liberal-egalitarian readings of Rousseau typically argue that amourpropre could be satisfied by the equal standing established in the Social Contract. See Dent 2005, 71–2, 157–8; Rawls 2007, 198–200; Neuhouser 2008, 115–16; Stilz 2009, 128–9; Cohen 2010, 100–4. The textual evidence

rousseau’s republican citizenship 87 in support of this interpretation, however, is surprisingly thin, on which see Douglass 2015b, 371–4; Spector 2016, 166; Inbar 2019, 473–7. 14. I think this passage counts against Hanley’s (2013, 53) argument that Political Economy does not advocate the denaturing found in Rousseau’s later works. 15. My account of the Genevan context in this section is especially indebted to Miller 1984; Rosenblatt 1997; and Whatmore 2012, 54–97. 16. Elsewhere in the text, Rousseau praises the Genevan administration of public granaries and claims that “to present the economic system of a good government” he has often looked to “the example of wisdom and happiness” found in his native city (DPE 161/267). 17. Rousseau laments that Geneva may be close to becoming irredeemably corrupt and speculates as to whether “inequality has not reached among us the last limit to which it can go without shaking the Republic” (LA 336/105). 18. See also Mendham 2020, who situates the letter within “a later quietest turn” in Rousseau’s relationship with Geneva, in contrast to a more “activist moment” between 1762 and 1765.

5

Rousseau’s Negative Liberty Themes of Domination and Skepticism in The Social Contract Michael Locke McLendon

According to a well-worn narrative, Rousseau occupies a pivotal role in modern European political thought. He serves as a bridge between seventeenth-century Anglo social contract theory and nineteenth-century German idealism. Although he utilizes the same terminology as social contract theorists, he alters the meaning of their fundamental concepts in revolutionary ways. This is especially true of freedom. Rousseau is often credited with inventing or at least reviving what is now termed “positive” liberty. Whereas social contract theorists such as Hobbes define freedom merely as noninterference or protection from external coercion, often referred to as “negative” liberty, Rousseau more robustly conceives of it as rational self-determination or self-legislation. Individuals are free, in other words, when they devise moral principles through reason that serve their true interests and act on such principles. Rousseau’s “positive” liberty or moral freedom is an internal freedom dependent upon the development of specific cognitive faculties. It relies not on protection from external threats but individual empowerment. However problematically moral freedom is presented in his works, Rousseau helped define freedom for much of continental Europe. Many philosophers agree, including Immanuel Kant and G. W. F. Hegel, that freedom is a function of rationality. Numerous liberals have been suspicious of Rousseau for precisely this reason. On the right, there is concern that Rousseau’s positive liberty justifies the creation of an intrusive welfare state. If individuals are only free when they are exercising their reason, then the state is 88

rousseau’s negative liberty 89 morally obligated to provide resources for all citizens to develop their intellectual faculties. To do so, the state might be forced to levy considerable taxes on the haves to ensure the have-nots have access to education, health care, and other resources deemed necessary to develop rationality. Freedom, in short, has to be bankrolled by the rich. In addition, there is a surprising amount of skepticism of Rousseau from left-leaning liberals. Since the Second World War, a chorus of intellectuals have blamed Rousseau for establishing the ideological structures that resulted in fascism and other movements inimical to individual rights and liberal institutions.1 Rousseau, consequently, has been linked to both Hitler and Soviet Marxism.2 Isaiah Berlin is the most notable of these intellectuals and makes the most in-depth criticism of him – one that remains influential. Having lived through the Bolshevik Revolution and Second World War, Berlin was convinced that he knew an authoritarian when he saw one and was committed to exposing Rousseau as the muse behind the political mayhem in the first half of the twentieth century. Berlin’s characterization of Rousseau as a protoauthoritarian theorist of positive liberty, however, is deeply unsatisfying for several reasons. Among these is that, insofar as the negative–positive liberty dichotomy applies to Rousseau, it places him in the wrong camp. While Rousseau articulates a theory of positive liberty in The Social Contact, he nonetheless primarily defends the negative freedom of noninterference and protection of individual autonomy to which liberals like Berlin are so firmly attached.

berlin’s deconstruction of rousseau Despite being the inspiration behind Berlin’s critique of positive liberty,3 Rousseau is largely absent in Berlin’s works. Strangely, he goes unmentioned in the “Two Concepts” lecture famous for detailing the distinction between negative and positive liberty and receives substantive examination in only two of Berlin’s works.4 In these considerations, however, Berlin constructs an alluring recipe for interpreting Rousseau as a dangerous positive libertarian.

90 michael locke mclendon First, Rousseau is, like many social contract theorists, dedicated to the value of freedom. Unlike his predecessors, however, Berlin insists that Rousseau is uncompromising and zealous in his support of it. Berlin accuses Rousseau of “always fighting for that limitless liberty” and believes it to be “an absolute good.” Accordingly, “any attempt to curtail it, to touch it, is sacrilege.”5 In Freedom and Its Betrayal, Berlin claims Rousseau’s commitment to liberty borders on religious fundamentalism.6 In Political Ideas in the Romantic Age, Berlin’s rhetoric becomes even more overheated. He describes Rousseau as “fanatical,” as “a maniac,” and as a “lunatic.”7 Berlin is plainly befuddled by Rousseau’s paradoxes and stubbornly insists on reading them as the ravings of a madman. He seeks to contrast Rousseau’s “Calvinist” zeal on behalf of the value of freedom with his own skepticism and commitment to pluralism. His Rousseau is a dangerous moral monist convinced he knows the whole truth. Second, Berlin’s Rousseau is equally committed to the value of moral responsibility, which is defined as living the correct way and knowing one’s true interest. The “good” lifestyle or true interests of individuals reflects the natural goodness of humanity. Berlin asserts that this makes Rousseau a cosmopolitan, as humans participate in a common nature. It also makes Rousseau a theorist of right, as there are right and wrong ways to live. The premises of cosmopolitanism and right, Berlin concludes, imply conformity. Moreover, since Rousseau insists upon absolute liberty, he likewise demands absolute conformity.8 Third, similar to Ernst Cassirer’s famous interpretation of Rousseau as a proto-Kantian,9 Berlin argues that Rousseau’s notion of moral responsibility is intertwined with rationality. Knowing human nature and a person’s authentic interests requires rationality. For “if a man knows what will satisfy him, he is endowed with reason.”10 So, any rational person will choose to live a certain way in order to live freely. Berlin is aware that his portrait of Rousseau as a lover of reason is in tension with the romanticism that is often attributed to him. In The Roots of Romanticism, he makes a few

rousseau’s negative liberty 91 attempts, albeit halfhearted, to relax the tension. Berlin’s first move is to cast Rousseau’s commitment to rationality as the core of his romanticism; that is, he argues for a “reign of universal reason.”11 In this respect, Berlin closely aligns Rousseau with the philosophes. Rousseau only meaningfully differs from them in that he thinks civilization must be razed to the ground in order to recover the “reign” of reason and had no patience with Diderot’s and Voltaire’s lobbying Russian and Prussian monarchs to achieve an enlightened society.12 In addition, Berlin downplays Rousseau’s attack on the arts and sciences in the discourses and the resulting tiff with the philosophes. Despite Rousseau’s disgust with Parisian intellectual life, Berlin believes he is as committed to a priori, mathematically elegant solutions to social problems as d’Holbach and d’Alembert.13 Rousseau’s hand-wringing about the arts and sciences is either disingenuous or revealing of a shocking lack of self-awareness. Finally, Berlin claims that Rousseau’s commitment to rationality implies the existence of an authentic self, which is represented by the general will. Rousseau assumes that people have two natures: a higher represented by the general will and a lower one by particular will.14 According to Berlin, this true self usually does not reflect what people empirically desire. Rather, it represents what they ought to desire based on the essential elements of their nature, that is, their rationality. Even if people bristle at being forced to live in a certain way, it is assumed by Rousseau that they secretly wish for it. In the case of The Social Contract, people do not naturally choose the general will. Berlin cites Rousseau’s assertion that a lawgiver is charged with teaching “a blind multitude to know what it wants” (SC III: 380).15 Occasionally, Berlin adds Rousseau’s defense of the natural goodness of humans from the Second Discourse to his narrative and suggests it in part constitutes the “higher self” that is used to oppress people. Berlin thus establishes Rousseau as a defender of a particularly noxious form of positive freedom. He identifies a cocktail of ingredients in Rousseau’s thought – a devout commitment to freedom as understood as rationality, a belief in an authentic self that is

92 michael locke mclendon contrasted with an empirical self, and a motive to assume responsibility for others – that denies people the right to make their own choices and determine their ends of life. To be sure, Berlin is fully aware that Rousseau also subscribes to a theory of negative liberty. In The Social Contract, Rousseau defends natural freedom, which is the freedom found in the state of nature and implies “an unlimited right to everything that tempts him and that he can reach; of which he earns” (SC III: 364). Such freedom, Rousseau concedes, is always precarious because unrestrained individuals can use their freedom of movement to coerce others.16 He thus assumes that individuals will seek to maximize negative freedom by consenting to a social compact, which prohibits individuals form harming their neighbors. Although this artificial “civil” liberty is not as expansive as natural liberty, as the state may prohibit certain actions, it does allow for more natural freedom than in the state of nature. Individuals are protected from others and may do anything not specified as illegal under the law.17 Berlin, however, is unimpressed with Rousseau’s defense of civil liberty. He believes that it is intertwined with and results from positive freedom. If a free being is one who rationally chooses to live in accordance with their nature, then any obstruction of a person attempting to do so amounts to tyranny. This obviously includes individuals who physically prevent someone from making a choice. Berlin thinks that Rousseau assumes acting on a choice is as important as the ability to make it: “not to act is not to be a human being.”18 The same holds true for economic power. If someone can force others to perform certain behaviors because of financial necessities, then they cannot be said to be free. Sure enough, Rousseau writes, “no citizen should be rich enough to be able to buy another and no one poor enough that he is forced to sell himself” (SC III: 391–2). This coupling of negative and positive liberty, Berlin argues, creates serious problems for Rousseau. If he argues that it is wrong for people to coerce their fellow human beings, he also refuses to tolerate those who fail to live in accordance with their natural

rousseau’s negative liberty 93 rationality. That is, Rousseau believes in both absolute liberty and absolute right and refuses to compromise either value.19 Berlin concludes that Rousseau was tortured by this contradiction and dishonestly turns to clever puzzle-solving to dissolve it. In The Social Contract, this is expressed by the paradox of living under a government while retaining the negative freedom of the state of nature. Rousseau premises his argument by claiming that freedom is impossible in the state of nature because stronger individuals are free to coerce weaker ones. A government is thus required to prevent such domination. The state, however, can also act coercively by preventing subjects from exercising individual choice. Rousseau solves this problem, Berlin contends, through the creation of a participatory democracy. If everyone ruled by the government is also endowed with sovereignty, then they cannot be said to be oppressed by the government because they are the government. In simpler terms, if everyone has a voice in the decision-making process, then they remain as free as they were in the state of nature. The one difference is that they are protected from being coerced by others, as is the case in the state of nature. Rousseau, Berlin concedes, understands the potential fatal flaw of his brainteaser. It is possible to manipulate government policy as a means to coerce other citizens or profit at the expense of them. Rousseau thus outlines some policies to avoid this potentiality, such as preventing factions by prohibiting citizens from discussing politics outside formal political forums and so on. His primary means, however, is to eliminate the desire of people to impose their will upon others. To do so, he socializes individuals to privilege their general will over their particular will. This, however, only further reveals Rousseau’s inability to protect negative freedom. In the name of freedom, Rousseau argues that people must have the same priorities and subscribe to the same ends; that they prioritize the collective good over the individual good. Rousseau then excuses this obvious eradication of negative freedom by claiming that he is only advocating for what nature intended for humans. Since everyone has the same

94 michael locke mclendon nature and has a natural interest in being free, the general will does not limit anyone’s freedom. The only reason people care for their particular interests is because they are disconnected from their nature. Thus, if humans choose chains that reflect their nature, then they have not forfeited their negative freedom. Berlin thinks this is nothing more than Calvinistic sophistry. It is akin to preventing someone from smoking and then claiming they are still free because smoking is bad for them. Rousseau’s attempt to reconcile freedom and right is therefore a failure. It opens the door for authoritarianism and totalitarianism, as those who know right can do no wrong.

deconstructing berlin Given Berlin’s dissolute rhetoric and uneven discussion, some of the better commentators, such as Ian Shapiro and Alicia Steinmetz as well as Christopher Brooke, have not engaged with the substance of his critique of Rousseau.20 This makes sense, as Berlin himself explicitly states that Rousseau is not a legitimate political philosopher.21 If Berlin does not take Rousseau seriously, presumably there is little reason to treat his particular criticisms seriously either. Yet, given the popularity of Second World War–era criticisms of Rousseau, it is still important to prove that he is mostly innocent of Berlin’s charges. In so doing, it becomes possible to partially disassociate Rousseau from Hitler and Stalin as well as to identify his unique contributions to republican thought. To begin, Berlin’s first two criticisms, that Rousseau is an uncompromising absolutist in his commitments to freedom and moral responsibility, are highly questionable. Rousseau’s endorsement of positive liberty itself is presented as a compromise. In Book I, chapter 8 of The Social Contract, Rousseau concedes that humans have more negative (or natural) freedom in the state of nature. Upon quitting the state of nature and joining the general will, Rousseau accepts that humans will lose some natural freedom.22 That is, he walks back from his attempt to create a state in which people remain as free as they were in the state of nature and engages in the weighing

rousseau’s negative liberty 95 and balancing that is the hallmark of Berlinian liberalism (SC III: 364). To make this trade-off palatable, Rousseau contends citizens gain two new freedoms not available in the state of nature: civil freedom and moral freedom. Civil liberty, as previously discussed (p. 92), includes individual rights such as legal property protections and safeguards against stronger persons depriving weaker ones of life, liberty, and property. Moral freedom refers to the positive liberty of rational self-determination or self-legislation that so concerns Berlin. Upon entering the social contract, Rousseau speculates that human nature will become transformed. Through reason, citizens will gain control over their passions and appetites. Rousseau’s language here is Platonic: moral freedom “alone makes man truly the master of himself; because the impulse for appetite only is slavery” (SC III: 365). This ability to resist inclination and act out of duty represents a step forward in the moral development of humanity. It “enlarges” minds, “ennobles” sentiments, and “elevates” souls. In short, it transforms humans “from a stupid animal” into “an intelligent being and a man” (SC III: 364). Moreover, Rousseau does not argue that the general will is sacrosanct and compromises its authority. In numerous writings throughout his career, Rousseau argues that there are two governing structures: a sovereign general will that makes laws and an administration that executes them (SC III: 395–7; DPE III: 244; LM III: 809). In republican fashion, Rousseau is careful to weigh and balance the authority of each.23 More specifically, he carefully balances the private wills of the subjects, the corporate will of government administrators, and the general will of the sovereign, all the while acknowledging that a perfect mathematical or technocratic solution is impossible. That is, Rousseau believes that the values of order and efficiency ought to be balanced with the freedom and democratic sovereignty provided by the general will. In addition, in other writings Rousseau adjusts his proposals to meet the challenges of the specific states. The weighing and balancing that takes place in Poland differs from the weighing and balancing in Corsica and Geneva.

96 michael locke mclendon Second, Rousseau is far less enamored with rationality than Berlin supposes. Even in The Social Contract, which sheds the hostility against reason prominent in the first two discourses, Rousseau’s attitude is at best equivocal. For one, he is much more concerned with civil freedom than with rational or moral freedom that enlarges minds and transforms humans. If Book I, chapter 8 is read carefully, it is clear that Rousseau has only a passing interest in moral freedom and is not fanatically attached to it.24 In fact, he concludes the chapter by directing his reader not to take this argument too seriously, claiming that he has “already said too much on this topic, and the philosophical sense of the word freedom is not my subject here” (SC III: 365). To say the least, this is a peculiar qualification. It is possible to argue, as Charles Hendel has, that Rousseau is only suggesting that he has already sufficiently dealt with the topic in other writings, such as Julie or Emile.25 It is just as plausible, however, to interpret him as arguing that he does not want his discussion of moral freedom to distract readers from the negative freedom of nondomination that serves as the foundation of his political values. Additionally, it is clear from books III and IV that Rousseau thinks any transformation of human nature is incomplete and temporary. Individuals never become models of rationality and invariably revert back to their natural state of narrow, short-term individual selfishness. Rousseau is deeply impressed with the power of selfishness. In the Geneva Manuscript, he criticizes Diderot (though not by name) for naively assuming that the general will can silence primitive self-interest (Geneva III: 286–9). It is a problem with which Rousseau himself claims to struggle mightily: “Let not particular interest make me unjust. It is, of all our inclinations, the one I guard against the most and that I hope to best resist” (LM III: 893). Rousseau thus directs the lawgiver to slow this decline through censorship and civil religion. However, he is resigned to the fact that the lawgiver cannot stop it, as both these mechanisms are of limited effectiveness. Censorship can do no more than nudge the public to accept an emerging public consensus and civil religion sets loose parameters on religious

rousseau’s negative liberty 97 doctrines, requiring that they promote the public good and sociability as well as the Christian doctrine of the punishment of sin. The denaturing education provided by the lawgiver is therefore destined to fail. Thus, there is no teleological march to perfectibility in The Social Contract. Rousseau opts for the classical formula of managed decline. No state can escape the fate of Rome and Sparta (SC III: 424). If reason is a moral ideal, Rousseau never fully trusts it as a political psychology.26 Furthermore, by Book IV, Rousseau provides a radically different conception of rationality than the “enlarged” and “elevated” Platonic one in Book I. Insofar as the citizens are rational, they are not so in a philosophical a priori way. Rousseau’s model of civic discourse is a “band of peasants” using provincial common sense to collectively solve their political problems.27 Throughout his life, Rousseau strongly identified with the common person and believed they possessed a humble, practical knowledge that allowed them to solve real-world problems without becoming arrogant (LA V: 55; E IV: 470–80). If he himself used some clever brainteaser to explain the general will, it is not part of his vision of healthy political discourse. And it is crucial to note that, in his other writings, Rousseau’s moral psychology extends beyond rationality. In “The Profession of Faith of the Savoyard Vicar,” Rousseau provides an exposition of conscience that is rarely interpreted as primarily reason-based.28 In the Geneva Manuscript, he claims that people stop doing evil to one another “by nature, by habit, by reason” (Geneva III: 329). Reason is thus only part of a healthy moral psychology. Rousseau’s lukewarm commitment to rationality is likewise reflected in his discussion of the general will, which is neither based on nor learned through reason (either Kantian a priori rationality or Hegelian a posteriori reasoning found in his “lordship/bondage” passage). As Rousseau argues in Book I, chapter 8, rationality and moral freedom are the consequence of the contract, not the cause. Rather, Rousseau treats the general will as a cultural concept and a matter of socialization; it is phenomenal, not noumenal. It results from

98 michael locke mclendon inculcating the proper moeurs and customs into a society rather than from individual rational contemplation or moral responsibility. Moeurs and customs, he argues, are the most important form of laws and the foundation “upon which the success of all the others depends” (SC III: 394).29 Rousseau fully understands that government cannot force people to be free – people have to believe in the legal and political system or it will collapse. The general will, then, is not so much a form of reasoning as an identity and a “social spirit” designed to replicate the unity of ancient Greek city-states (SC III: 383).30 Rousseau demands that citizens identify and see themselves as part of a collective united by the same social spirit. Establishing such a spirit is no simple matter and occurs, as Christopher Bertram observes, “only after living within a set of common social institutions over a very long period of time.”31 The task of creating this identity and social spirit falls to the lawgiver, who has to transform people who are naturally selfish, teeming with amourpropre, into a collective whole dedicated to justice. According to Rousseau, this requires a full root-and-branch remodeling of human nature. It is easy to surmise why this language terrified Berlin and indeed most people who first read the book. Rousseau, however, is not directing the lawgiver to create a higher self. Rather, the lawgiver is a heuristic designed to circumvent history and culture. His job is to teach people corrupted by decadent societies how to be public-spirited and think beyond their own narrow self-interest. He must, in other words, artificially inculcate cultural attitudes and moeurs that are typically inherited from tradition.32 So, the lawgiver’s role is to be an understudy for history and culture, which are the true sources of obedience to the general will or any principle of public reasoning. Once the cultural foundations of the general will are understood, it is relatively simple to imagine Rousseau’s reply to the common charge that the lawgiver brainwashes people. According to Rousseau, the lawgiver is merely providing people with the knowledge necessary to make an informed choice. Naturally, egocentric people living in a social environment that rewards selfish behavior

rousseau’s negative liberty 99 would never choose to live under the general will. To make a choice of the magnitude of living under a society structured on a fundamentally different set of values requires humans to possess substantive experiential knowledge. As Rousseau puts it, “men would have to be before the laws what they become by them” (SC III: 383). That is, someone living in a Lockean society would never seriously consider living under the general will, just as someone imbibed with Homeric values of valor and honor would never choose to live in a commercial society with no appreciation for military glory. Therefore, according to Rousseau, people can only choose the general will after having been socialized into it. A classical liberal approach that insists individuals should be left completely free to choose their ends of life leaves them at the mercy of the dominant values and does not appreciate the gravity of the choice presented by the social contract. Emile’s all-consuming education is another means of attaining the knowledge necessary to make a substantive choice. Against the criticism that Emile has been thoroughly brainwashed by his tutor, Rousseau believes Emile is finally equipped to make a true choice. This is why Emile exclaims to his tutor at the end of his education, “Of what am I dedicated! To remain what you have made me . . .” (E IV: 855).33 Thus, true choice is an after-the-fact ratification of one’s education or socialization. To make this argument clearer, consider individuals who enlist in the army in order to become soldiers (though the socialization process is less intensive than Emile’s education). They are not choosing to become a soldier at the time of enlistment because they have little idea whether or not the identity and lifestyle suits them. To know whether or not they want to be a soldier, they first have to go through basic training and spend some time in the military. After such time, Rousseau would argue that they are finally free to accept or reject their new identity. Many consider basic training to be an overbearing socialization process that remakes personalities and brainwashes enlistees. Rousseau, however, would argue the contrary: people can only choose to become soldiers after experiencing military life and being socialized into it. Invariably,

100 michael locke mclendon some will choose to become what the military has made them, and some will not. Plenty of soldiers spend a few years in the military and repudiate the culture and identity of a soldier. Once they are discharged, they go back to who they were or find a new identity. Importantly, in all these socialization processes, the old self does not disappear. It is only matched against a new self. This is not to say that Rousseau’s argument here is without problems. As Patrick Riley correctly argues, the lawgiver’s use of religious manipulation creates serious issues for Rousseau’s commitment to voluntarism.34 Indeed, it is difficult to argue that consent based on such trickery is legitimate. However, it should be recognized that Rousseau’s directions to the lawgiver are a consequence of his claim that moral freedom is the effect of the social contract and not its cause. The lawgiver thus cannot appeal to the rationality of the populace because it does not yet exist. As such, they have to find some method of persuasion that lies between coercion and moral freedom. Rousseau’s position may be wrong, but it is not a cynical or underhanded attempt to forward a totalitarian agenda. Rousseau simply believes what many intellectuals both before and after him have concluded: the average person is deficient in moral reasoning and cannot be expected to endogenously or spontaneously develop it. Moreover, Rousseau is candid that he does not expect the general will to reliably be rational. It can and does err. In another of his cryptic remarks, he insists that “the general will is always upright, but the judgment that guides it is not always enlightened” (SC III: 380). This does not mean that the general will is infallible. Rather, Rousseau is only claiming that the general will is morally right when guided by the proper intentions – the desire to identify the collective interest. It still can make poor decisions; self-determination is often not rational self-determination. Even if all justice comes from God, as Rousseau claims, he is all too aware that humans will not be able to access God’s will and implement it in the human world (SC III: 378). In this instance, Rousseau is far more skeptical than Locke, who argues that all but children, idiots, and madmen can glean divine

rousseau’s negative liberty 101 natural law. Berlin, however, is unsympathetic to this concession and assumes that it does little to derail the all-powerful collective from trampling on the rights of individuals and minorities. He views it only as a weak attempt to depress factious behavior.35 A more compelling reading, however, is that Rousseau shares some of Berlin’s skepticism. Rousseau is warning the reader not to trust the general will too much. It is not a hyperrational body that always makes good decisions; it is not omniscient, omnipotent, and omnibenevolent. Rousseau divides political power between executive and legislative, or sovereignty and administration, precisely because he does not trust the wisdom of the sovereign, especially in matters of implementation. In addition, Rousseau does not believe that the general will typically results in harmonious decisionmaking. He knows that there will be competing visions of the common good and relies on majority vote to settle disputes and that governing is a fraught process that cannot be made good through rationality. It is important to realize that the general will is not merely a metaphor or an analytic construct with which to metaphysically define freedom. It has a practical, real-world existence that is determined by voting procedures in which citizens determine the set of public goods that society ought to provide its members.36 In fact, Rousseau is highly skeptical toward his own project. As has been pointed out frequently enough, he basically admits that his political program in The Social Contract is a nonstarter. The lawgiver tasked with denaturing humans of their selfishness, he concedes, is a historical rarity; his existence a “true miracle” (SC III: 384). Even if one could be located, the only people in Europe capable of the transformation he is calling for are the Corsicans. The message is quite clear for those willing to listen: there will be no general will in Europe. Too many commentators, Berlin included, fail to appreciate the underlying skepticism in The Social Contract and instead focus on the formalisms of the general will.37 Like Aristotle’s Politics, The Social Contract begins with a powerful analytic discussion that is followed by smart, commonsensical practicality. The practical

102 michael locke mclendon elements of the text not only soften the abstract paradoxes that make the book so seductively dangerous but also reveal Rousseau’s skeptical orientation. Rousseau has his values. He believes in virtue and goodness and is dedicated to protecting provincial life against the forces of Enlightenment and commerce. Yet he was decidedly less certain when his musings turned to the practical. Ernst Cassirer rightly notes that Rousseau “never felt completely at home in any profession, in any science or doctrine, in any religion.”38 In addition, Rousseau was more than aware of the tensions within his value set and never sought to reconcile them through a clever formula. He freely admits to holding incommensurable values of virtue and goodness, collective rule and volunteerism, private property and a rough economic equality, participatory democracy and aristocratic administration, and so on. Rather than find a happy solution, he accepts that he has to make choices that have costs. Arguably, he adopts a tragic approach to politics reminiscent of Berlin’s.39 Third, Berlin’s assertion that Rousseau defends an authentic, higher self is misleading. The moi commun is not motivated by some higher virtue or cognitive trait of humanity. Like the particular self, it is driven by self-interest. One premise of Rousseau’s social contract is that he is “taking men as they are” (SC III: 351). He is only attempting to persuade people to define their interests in a collective manner to protect negative freedom, thereby aligning justice and interest. Such concerns are best explained through Rousseau’s call to “force people to be free.” Specifically, Rousseau is trying to address two problems resulting from selfishness. First, Rousseau worries about free-rider problems, which is hardly a radical concern. People tend to get annoyed when others game the system at their expense and avoid contributing their fair share. Free riding can spell the end of collective action and public goods. In Rousseau’s case, it can undermine the social contract and thrust people back into the state of nature. Second, and more important, “forcing people to be free” is an attempt to protect negative liberty by preventing selfish individuals from manipulating the legislative processes to promote those interests

rousseau’s negative liberty 103 and force others to become an extension of their will. In Rousseau’s formula, someone who neglects their public duties in favor of private desires is empowered to coerce others. When people join the contract, they agree to surrender their rights against others. This puts everyone in a vulnerable condition, as they have no rights left to defend themselves against encroachments made against their persons and property. This vulnerability is only acceptable if everybody complies by renouncing their individual rights and powers. If everyone does so, nobody is capable of harming or coercing others. If some shirk their public duties, however, they upset the delicate balance that sustains the contract and are at a tremendous advantage vis-à-vis the other citizens. While faithful citizens aim to secure the common good, contract breakers secretly manipulate public deliberations to their own advantage and usually at the expense of their fellow citizens. They will use republican language of the common good, but their proposals are designed to benefit themselves. Not only are good citizens defenseless against their scheming, selfish neighbors, they are unaware of the harm being done to them. For Rousseau, this is nothing less than an act of tyranny. Thus, “forcing people to be free” has nothing to do with creating an authentic self. It is designed to prevent selfishness from becoming coercive. Berlin also wrongly accuses Rousseau of providing no room for the satisfaction of private wills.40 Like most classical liberals, Rousseau supports the idea that each citizen has a zone of privacy protected from external interference. In this space, everyone “can fully dispose of his goods and freedom as are left by these conventions” (SC III: 375). Only the public self is alienated to the sovereign. Granted, when private wills and the general will conflict, the latter overrides the former. And the general will is responsible for determining how and when private interests may be satisfied. Nevertheless, the general will contains disincentives to unduly restrict private freedoms and is designed to be self-limiting. Every limit that citizens propose for others obtains to themselves as well. Rousseau reasonably assumes that his sovereign-citizens will not place limitations on

104 michael locke mclendon others that they personally would not be willing to accept. The general will thus probably will not penetrate as deeply into private lives as Berlin assumes. And Rousseau plainly is not proposing that the state ought to be the only care and obligation in life, as Arthur Koestler

and 41

communism.

Bertolt

Brecht

wrote

of

twentieth-century

It is crucial to remember that general will is paradox-

ically designed to protect individual rights and not to promote some collective good.42

the social contact and freedom from domination A persuasive case can be made that the true purpose of The Social Contract is to eradicate domination and cruelty. In the opening chapters of Book I, Rousseau charges several theorists – Grotius, Hobbes, Aristotle, and Filmer – with providing ideological justification for despotism. With regard to Grotius and Hobbes, he thinks they both deny rights and sovereignty to the people and are de facto supporters of tyranny. He even accuses them of theoretically justifying Caligula. He is most critical of Grotius, who favorably analogizes slavery to governance. In Emile, Rousseau calls him “a child of bad faith” (E IV: 836). He is equally critical of Aristotle’s defense of slavery and Robert Filmer’s defense of patriarchy, though his tone is muted. Most likely, this is because he loves the ancients in Aristotle’s case and knows that patriarchy is a dying ideology in Filmer’s. He mostly teases Filmer, mockingly suggesting that according to Filmer’s theory he himself might be the true king of the earth (SC III: 353–4). In the remainder of The Social Contract, Rousseau draws a sketch of a society free from domination of all sorts – political, social, and economic. Political domination is neutralized directly through the general will, which requires that all citizens are stripped of all their rights and powers and have equal status as citizens. If no one has rights and power, then no one has rights and powers to coerce their fellow citizens. The details of how the general will can be constructed are complicated and provocative, but the underlying message is simple enough: no one ought to have the means and the

rousseau’s negative liberty 105 motive to invade the rights of others. Or, more simply put, selfishness combined with asymmetry in power inevitably results in domination and cruelty. The one figure who can be said to have power, the lawgiver, is exiled from the state as soon as it is established. Social domination is prevented through the same process. Everyone partakes equally in the most important public identity, that of citizen. Rousseau nullifies economic power by insisting upon rough economic equality, though everyone is allowed property and to manage their economic lives as they see fit within certain bounds: no one should “be rich enough to be able to buy another, and none so poor he be compelled to sell himself.” While the lack of detail is unsatisfying, Rousseau has a powerful message to liberal republicans. Commercial societies cannot sustain republican freedom because they allow people to accumulate unhealthy levels of economic power, which invariably will be used to coerce others. Rousseau explicitly makes this argument in the Second Discourse. In their competition to become the richest, the wealthy turn much of the population into pawns to be used for their own ends and find all sorts of ways to get them to serve their own interests (SD III: 175–6). Moreover, corrupted by their riches, the wealthy lose all sense of compassion and develop powerful motives to harm their fellow citizens. They become overwhelmed by amour-propre and delight in depriving people of their needs and wants. Rousseau describes them as “ravenous wolves” who can only enjoy their riches by being cruel to those beneath them (SD III: 175–6).43 Rousseau, in short, shines a bright light on the inequities, corruptions, and domination ubiquitous in commercial life. He understands that protecting even a thin version of liberty, one that promotes noninterference or nondomination, is impossible unless there is robust equality. If some possess inordinate amounts of power or privilege, as is allowable in most liberal commercial democracies, then the existence of many citizens will be defined by coercion and domination. In case there is any remaining doubt about his intentions, Rousseau explicitly defines freedom as nondomination in Letters Written from the Mountain, which in part summarizes the arguments

106 michael locke mclendon in The Social Contract. He writes, “liberty consists less in doing one’s own will than in not being subject to that of others; it also consists in not subjecting another’s will to ours” (LM III: 841). Berlin should be more sympathetic to Rousseau’s republicanism, as such concerns can be found in his writings as well. Berlin similarly acknowledges that economic inequality is a source of domination and can render negative freedom useless. As he succinctly puts it, “to offer political rights, or safeguards against the intervention by the state, to men who are half-naked, illiterate, underfed, and diseased is to mock their condition.”44 He is also aware that inequality easily translates into domination: “Both liberty and equality are among the primary goals pursued by human beings through many centuries, but total liberty for wolves is death for the lambs, total liberty of the powerful, the gifted, is not compatible with the rights to a decent existence of the weak and the less gifted.”45

pettit contra rousseau In the Anglo world of political philosophy, Berlin’s portrayal of Rousseau remains popular. Even those who hold nondomination as the preeminent political value try to purge Rousseau from their ranks. Most notably, Philip Pettit, who has long argued that nondomination is a core value of republican theory, anxiously dismisses Rousseau’s republican bona fides.46 Like Berlin, he thinks Rousseau gets tripped up by his own paradoxes and cannot make good on his commitment to liberty. Like Berlin, Pettit interprets Rousseau as a proto-Kantian who develops a perverse form of republicanism that he terms “populist” or “Franco-German,” which departs from classical Roman republicanism in two crucial respects. First, Rousseau rejects the model of a mixed constitution. Second, he does not permit a “contestatory” citizenry that has the right to challenge the sovereign.47 The general will, he argues, is set up to be a unified sovereign that cannot err and hence cannot be challenged. These alterations to Roman republicanism, Pettit argues, undermines Rousseau’s own republicanism

rousseau’s negative liberty 107 and lend support to antirepublican defenses of positive liberty.48 Pettit sharply makes his point by linking Rousseau to the two great theorists of absolute monarchy, Jean Bodin and Thomas Hobbes. Pettit, however, grossly overstates the importance of these positions and is incurious to the numerous ways Rousseau seeks to constrain popular will and protect individual liberty. He, like Berlin, downplays the significance of Rousseau’s commitment to rule of law, checks and balances, and the sovereign–administration distinction that shows up repeatedly in his political writings. He ignores the ways in which Rousseau constrains the sovereign and protects citizen-sovereigns in numerous ways unavailable to Hobbesian subjects, whose lives can be terminated by the sovereign on a whim. Similarly, Pettit’s discussion of Rousseau’s sovereign–administration distinction is too brief to address the republican assumptions central to it. Pettit vaguely concludes that it is “very different” from a mixed constitution and is “quite consistent with the indivisibility of the sovereign.”49 Yet by separating legislative from executive power, Rousseau limits sovereign power as well as providing a balance to it. Indeed, it bears repeating, Rousseau attempts to carefully balance the powers of the citizen-sovereigns, the magistrates who populate the state or administration, and the subjects regulated by the magistrates to prevent state domination (SC III: 397–8). In Considerations on the Government of Poland, moreover, Rousseau advocates both dividing administrative power and rotating magistrates in and out of office (Poland III: 975–6). And, depending on national circumstances, Rousseau is even willing to endorse a mixed administration (Corsica III: 907). Pettit likewise glosses over the weaknesses that Rousseau attributes to the sovereign, which he believes will inevitably decline. Far from being a coercive force, the strength of the sovereign will constantly be sapped by particular wills, which draw citizens away from their political duties and makes them prone to factions that are easily exploited by the magistrates. “It must happen sooner or later,” Rousseau laments, “that the Prince ends up oppressing the sovereign and breaks the social contract” (SC III: 421).50 Thus, Rousseau takes

108 michael locke mclendon republican concerns about domination very seriously. He just focuses his attention on the executive rather than the sovereign. Pettit’s second argument, that Rousseau, in Hobbesian fashion, denies citizens the right to contest sovereign decisions, also distorts the argument in The Social Contract. Pettit oddly discounts the builtin opportunities to participate in legislation afforded by the structure of the general will. Rousseau never portrays the edicts of the sovereign general will as infallible. Indeed, he repeatedly argues that general will is imperfect and always a work in progress. Aside from Rousseau’s wellknown claim that the general will is not always enlightened, in Book III he calls the executive the “brain” of the state (SC III: 424). Presumably, any actions taken by the general will can be altered by future legislation. Indeed, there is no reason why poor legislation will not immediately be revisited. In addition, as previously mentioned, there are built-in protections against attempts to abrogate individual rights. Given that Rousseau’s citizens never stop being subjects, they likely will not pass legislation that results in individual harm. A citizen’s general will does not eradicate a subject’s particular will, even if the former takes precedence over the latter in the mind of the individual. The political experience of Rousseau’s citizen-subjects, therefore, is nothing like Hobbes’s subjects, who have no rights under the sovereign except to life and have no voice in government. If Rousseau rejects aspects of the Roman republican formula, he nonetheless fashions credible alternatives designed for the same end. Despite Pettit’s protestations, Rousseau is a consistent republican who never wavers from his commitment to freedom as nondomination. Finally, Pettit elides Rousseau’s creative and insightful application of republican principles to modern liberal life. Rousseau sees domination in spheres of life that “liberal” republicans such as Pettit tend to minimize. He has a sharp eye for inequality and appreciates the vicissitudes of modern life, which he describes as “unsettled and restless” (E IV: 252). As earlier argued, Rousseau is particularly sensitive to the dangers of economic asymmetries that Pettit insufficiently addresses. Such asymmetries are especially dangerous and leave large

rousseau’s negative liberty 109 swaths of the population vulnerable to a life of coercion and domination akin to Pettit’s example of housewives who are financially dependent on their husbands. He forces republican theorists to consider a discomfiting question: is commercial capitalism compatible with republican freedom? Pettit’s unconvincing solution to economic equality, which consists of dispensing state-welfare payments to poor individuals so that they have enough independence to avoid selling themselves to the wealthy,51 serves to highlight the importance of Rousseau’s concern that “no citizen should be rich enough to be able to buy another and none so poor that he is compelled to sell himself.” Yet, the welfare payments he champions may not sufficiently prevent wealthy people from economically dominating their neighbors. Pettit disregards Rousseau’s insight that economic desires cannot be decoupled from amour-propre and hence the concerns of personality corruptions that animate Rousseau’s works.52 To reiterate, Rousseau worries that the rich will not only seek to get their hands on all the wealth in society but thanks to amour-propre take great pleasure in dominating and being cruel to their fellow citizens. Rousseau, as such, would probably contend that the wealthy, driven by amour-propre, would assume control of state power and then proceed to destroy Pettit’s welfare state. To reliably prevent domination, disempowering the rich is as important as empowering the poor.

conclusion Rousseau deserves some blame for the uncharitable interpretations of The Social Contract found in so many twentieth-century commentators, including Berlin and Pettit. As he was well aware, his perverse taste for paradox (FME IV: 98; E IV: 323) and desire to shock his readers almost guarantees that he will be misread.53 He once even conceded that he himself did not understand The Social Contract, his most famous text: that “those who boast they fully understand it are brighter than I am.”54 Furthermore, Berlin is probably right to contend that Rousseau’s rhetoric is dangerous and supplies would-be tyrants

110 michael locke mclendon ample justification for coercing their populations. He is also right that Rousseau advances some alarming proposals, such as manipulation of religion as a tool of persuasion, promotion of censorship, distrust of citizen judgment, and so on, which deserve careful scrutiny. The Social Contract is far from a problem-free book and the general will is far from a problem-free concept. Rousseau has things to answer for. None of this, however, makes Rousseau the ideological soulmate of Hitler, Stalin, or even Jean Calvin. He is not that scary. When carefully analyzed in the context of his practicality, Rousseau’s paradoxes lose their sting. It is important to recognize that there is an underlying reasonableness to Rousseau’s political thought. Alongside his indignant denunciations of modern European life and devilish epigrams is a commitment to realism and republicanism. Rousseau cares about many of the same things as the people who criticize him, Berlin included, and does so for similar reasons. Indeed, Rousseau and Berlin are thus not as far apart as Berlin likes to think.

notes I would like to thank Alicia Steinmetz for her many helpful comments. 1. Rousseau has also been blamed for the French Revolution, though this linkage is far more understandable. 2. For the Rousseau–Hitler connection, see Berlin 2002, 41; Russell 1972, 685; d’Entrèves 1994, 142–3. For the Rousseau–Marxist linkage, see Shapiro and Steinmetz 2018; Brooke 2016a, 91–4; Müller 2008, 52 and 56; Cherniss 2013, chapter 3. 3. See Cherniss 2013, 161. 4. The substantive two selections are Berlin 2002 and 2014. 5. Berlin 2014, 136, 138, 144, and 139. 6. Berlin 2002, 31. 7. Berlin 2014, 141–2, 146–7, 169–70. Brooke notices Berlin’s polemical language. See Brooke 2016a, 90. 8. Berlin 2014, 142 and 150. 9. See Cassirer 1932 and 1963. 10. Berlin 2002, 31. 11. Berlin 1999, 7.

rousseau’s negative liberty 111 12. Berlin 1999, 53–4; Berlin 2014, 160–1. 13. Berlin 2014, 143–4. 14. Ibid., 171. 15. Citations to Rousseau’s writings are to volume and page number of the Pléiade Œuvres complètes (Paris: Gallimard, 1959–95), with individual titles taking the following abbreviations: SD = Discourse on the Origin and Foundations of Inequality Among Men; SC = Social Contract; Geneva = Geneva Manuscript; DPE = Discourse on Political Economy; Poland = Considerations on the Government of Poland; Corsica = Plan for a Constitution for Corsica; LM = Letters Written from the Mountain; E = Emile; FME = Favre Manuscript of Emile; LA = Letter to d’Alembert on the Theatre. All translations are my own. 16. Berlin 2002, 32. 17. For the relationship between natural and civil freedom, see Simpson 2006b, 52–6. 18. Berlin 2002, 32. 19. Berlin 2002, 35–6. 20. One prominent exception is Robert Wokler, who has persuasively argued that Rousseau can be a proponent of both negative and positive liberty. Like Berlin’s better critics, he rightly points out that negative and positive liberty are not binary opposites and that theorists who defend the latter often support the former. See Wokler 2012. 21. Berlin 2014, 162. 22. Again, see Simpson 2006b, 52–6. Reisert offers a compelling case for a differing interpretation, claiming that rechanneled amour-propre promotes a civic identity that makes up for the loss of individual freedom. See Reisert 2003, 124–7. 23. See Melzer 1990, chapter 11, especially 210–13. 24. D’Entrèves, like Berlin, cites moral freedom as the source of Rousseau’s zealotry. See d’Entrèves 1994, 142. 25. Hendel 1962, 188. Riley identifies other passages in Rousseau’s writings that hint at Kantian moral duties, though none are linked to rationality. See Riley 1982, 102–3. 26. As part of his discussion of the “detachability thesis,” Masters argues that Rousseau’s concept of moral freedom may be ignored as it is based on an unsupportable metaphysical dualism. See Masters 1968, 73. For a refutation of Masters, see Williams 2007, 106–14. 27. See McLendon 2009.

112 michael locke mclendon 28. See Riley 1982, 103; Marks 2006. 29. See also Poland III: 955. 30. See Riley 1982, 99 and 108. 31. Bertram 2004, 129 (italics mine); Keohane 1980, 438; Dent 1988, 215, 220–3; Trachtenberg 1993, 130–1; Scott 1997, 803; Wolin 2001, 177–80. 32. In Considerations on the Government of Poland, Rousseau suggests using children’s games, public festivals, and religious ceremonies to produce public-spirited Poles who identify as Polish citizens and love virtue. See Poland III: 956–70. 33. See Riley 1986, 248–9. 34. See Riley 1982, 117. 35. Berlin 2014, 179. 36. See Trachtenberg 1993, 7–8, 217–20. 37. For a similar claim, see Neidleman 2016, 107. 38. Cassirer 1945, 3. 39. See Niedelman 2020. 40. See Marks 2005, 79–80. 41. See Koestler 2019, 91; Brecht 1965, 81–2. 42. See Yack 1992, 63. 43. For a more in-depth discussion of my views, see McLendon 2018, 105–11. 44. Berlin 1969, 124. 45. Berlin 1998, 12. 46. For his most substantive discussion of the distinction, see Pettit 1997, 21– 7 and 51–73; 2014, xiii–xviii; chapter 1; 2013, 170–3. In addition, Frederick Neuhouser demonstrates that Rousseau subscribes to freedom as nondomination in the Second Discourse. See Neuhouser 2014, 123–37. 47. Pettit 2013, 169, 184–8, 193–4. 48. Pettit 1997 30; 2013, 199; 2014, 12–13 and 48–9. For a helpful discussion, see Trojan 2019, chapter 4. 49. Pettit 2013, 184–85. 50. See also Poland III: 977. 51. See Pettit 1997, 158–63. 52. See Neuhouser 2014, 203–8, 216. 53. See also Sonenscher 2020, 1–4, 10. 54. Damrosch 2005, 476.

6

Rousseau’s Ancient Ends of Legislation Liberty, Equality (and Fraternity) David Lay Williams

One of the defining features of early modern social contract theory is how it frequently centers on the concepts of liberty and equality. For Thomas Hobbes, the state of nature is characterized by a natural equality of strength and mind,1 while natural individuals are at liberty to act as they see fit without legal constraints. John Locke likewise describes the natural condition of humanity as existing in a state of equality, where “creatures of the same species and rank . . . [are] equal one amongst another without subordination or subjection” – while also finding there “a state of perfect freedom,” where individuals are free to “dispose of their possessions and persons, as they think fit, within the bounds of the laws of nature.”2 It is perhaps thus unsurprising that Jean-Jacques Rousseau also paints natural humanity as free and equal. Natural human beings are free in the Hobbesian and Lockean sense – that there are no legal constraints on their actions. They are equal in the “moral” or “political” sense, as he records in his Discourse on the Origin of Inequality, insofar as there exist in nature no conventions that would attach unequal distinctions upon anyone. Yet in the case of these three central figures of the social contract tradition, both liberty and equality are subjected to significant alteration as they work their way from the state of nature to civil society. For Hobbes, natural liberty is replaced by the liberty left to subjects in a commonwealth in those zones free from governmental regulations.3 And natural equality is replaced by his tenth law of nature, against pride, which counsels subjects to “acknowledge another for his equal by nature,” as well as the eleventh, which insists 113

114 david lay williams upon their legal equality before the law.4 For Locke, the “natural liberty” found in the state of nature is to be replaced by “a liberty to follow my own will in all things, where the [government’s] rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”5 Meanwhile, his conception of natural equality is replaced in civil society by “that equal right, that every man hath, to his natural freedom, without being subjected to the will or authority of another man.”6 But there is something different at work in Rousseau from the approaches adopted by his early modern predecessors, both in the degree to which he emphasizes these two political principles, and in the degree to which he links them to one another. He opens Book 2, chapter 11 of The Social Contract with this sometimes-overlooked passage: that “the end of every system of legislation . . . comes down to the following two principal objects, freedom and equality” (SC, 80 [III:391]).7 Rousseau’s insistence that freedom and equality are the primary objects of legislation, thus, distinguishes him from Hobbes insofar as Hobbes identifies peace as the ends of legislation as to “direct and keep them [subjects] in such a motion as not to hurt themselves by their own impetuous desires, rashness, or indiscretion.”8 That is, the purpose of the law is not centrally to promote liberty, or equality, for that matter, but rather to constrain liberty, thereby protecting subjects from one another. Similarly for Locke, while he imagines a sphere for a kind of liberty and equality in his civil society, he does not define these as the central aims of legislation. For Locke, the “great and chief end” of government “is the preservation of their property.”9 While Locke surely considers the protection of property to be a form of liberty, we will see that this conception of liberty is relatively narrow in comparison to Rousseau’s approach. For Rousseau, civil liberty is central to his conception of legislation; and equality is necessary “because freedom cannot subsist without it.” To this extent, he places both principles at the very foundation of his political system, and at the same time he insists on their interlocking natures. In this way, it is obvious that while he

rousseau’s ancient ends of legislation 115 employs some of the same vocabulary as his early modern predecessors, he is doing something very different. Rousseau’s unique approach to liberty and equality, thus, deserves more careful scrutiny. This is true not only because of the novelty of his analysis, but also because it provides a greater appreciation of his political theory as a whole. To understand Rousseau’s conception of the relationship of liberty and equality reveals his intellectual debts, as well as providing greater clarity of what each term means and how it sustains his larger political vision. In this essay, I explore two of Rousseau’s most important ancient influences, Plutarch and Plato, who both occupy considerable real estate in his mind.10 Counterintuitively perhaps, I argue that we can best understand this modern thinker only in terms of his ancient influences. Once this is appreciated, Rousseau’s modern appropriation of these concepts become more apparent.

plutarch and plato Rousseau’s affection for the ancients is well known by now. And while Rousseau read and was surely influenced by multiple ancient thinkers in a variety of respects, it is plausible to argue that his two greatest ancient muses were the ones he cited the most: Plato and Plutarch.11 He reveals his affection for Plutarch with moving clarity in his Confessions: Above all Plutarch became my favorite reading. . . . From these interesting readings, from the discussions they occasioned between my father and myself, was formed that free and republican spirit, that indomitable and proud character, impatient with the yoke and servitude which has tormented me my whole life in situations least appropriate for giving vent to it. (Confessions, 8 [I:9])

One finds similarly impassioned passages in Rousseau’s works testifying to the power of Plato’s dialogues. In his Emile, he describes Plato’s Republic as “the most beautiful educational treatise ever written,” and he subsequently speaks of him as that “noble genius”

116 david lay williams (Emile, 40 [IV:250], 362 [IV:700]). It is on the basis of such repeated remarks throughout his oeuvre that Patrick Riley, for example, claims that “his political ideal was the ancient polity,” drawn from Plutarch’s accounts of Sparta and Rome.12 Before him, Charles Hendel summed up Rousseau’s career as the “inevitable ‘imitation’ of the supreme moralist of ancient days,” namely, Plato.13 The influence of Plutarch and Plato has been traced to many elements of Rousseau’s philosophy. For Abraham C. Keller, Plutarch’s influence can be found in Rousseau’s appreciation of virtue and patriotism, as well as his distaste for luxury and the arts and sciences.14 For Judith Shklar, Plutarch’s influence is especially powerful in Rousseau’s account of political authority in the form of a “Great Legislator” – and is the likely source of his own account of the lawgiver from the Social Contract.15 Maurizio Viroli has attributed Rousseau’s specific brand of moralism to Plutarch’s moral writings.16 More recently, Alexandra Oprea has argued that Plutarch’s influence over Rousseau is particularly acute in his effort to combat the problems of unwieldy pluralism.17 Also recently, Rebecca Kingston has argued that Plutarch exercised decisive influence over Rousseau with regard to education, exemplarity, and the republican ideal.18 Scholars have also observed Plato’s influence in a number of realms. M. J. Silverthorne has drawn attention to the degree to which Rousseau embraced Plato’s advocacy of the rule of law,19 in addition to a number of specific policy ideas concerning education policy. Roger D. Masters and Laurence D. Cooper have both commented on striking parallels between the “three waves” of Book V of Plato’s Republic and Book V of Rousseau’s Emile.20 Zev Trachtenberg interprets Rousseau as following Plato in rejecting politics.21 Echoing Shklar, to some degree, Brent Cusher finds extensive parallels in both Plato’s and Rousseau’s conceptions of the lawgiver, especially regarding the role of persuasion.22 Indeed, these texts only touch the surface of an enormous literature on Rousseau’s sources. Despite Plato’s and Plutarch’s acknowledged influence over Rousseau, little has been said about their potential role in shaping

rousseau’s ancient ends of legislation 117 his thought concerning the “two principal objects” of his legislation: liberty and equality.23 This oversight is particularly surprising insofar as Rousseau himself has provided his readers with exceptionally vibrant clues. He cites Plutarch’s account of the ancient Greek lawgivers Lycurgus and Solon as providing a model for lawgiving generally, but expressly including their attention to preventing the kind of inequality that undermines successful republics (SC, 2.3.4 [III:372]).24 And in the opening paragraph of SC, 2.8, he insists on the importance of understanding a people before attempting to legislate for them, where he cites the example of Plato, who refused to legislate for the Arcadians and Cyrenians, “since he knew these two peoples were rich and could not tolerate equality” (SC, 2.8.1 [III:384–5]). Rousseau knew that Plato had the opportunity to legislate for at least two city-states and declined because those states were insufficiently committed to equality. Given these clues, it is worth the effort to understand what Plato, as well as Plutarch’s accounts of Lycurgus and Solon, has to say about those “two principal objects” of legislation – before then turning to see what Rousseau might have learned from them. What needs to be explained here is what Plato, as well as Plutarch’s Lycurgus and Solon, meant by liberty and equality, and why it matters for legislation. It is only then that Rousseau’s readers can begin to appreciate the depth of their influence on his fundamental principles of legislation.

Lycurgus and Solon on Liberty, Equality, and Fraternity Among the most striking themes emerging from Plutarch’s accounts of both Solon and Lycurgus is the debilitating economic inequality that necessitated their legislative interventions. Plutarch’s narrartive of Lycurgus is particularly direct: “There was an extreme inequality amongst them [the Spartans], and their state was overloaded with a multitude of indigent and necessitous persons while its whole wealth was centered upon a very few.”25 This inequality was perceived to be so extreme, for Lycurgus, that it pitted citizens against one another. The profit of one citizen was the loss of another; the loss of one citizen was the profit of another. The only means of personal success was the

118 david lay williams failure of another. Such was the logic of a polis that featured such radical inequality. It was for this reason that he embarked on his radical economic reforms: To the end, therefore, that he might expel from the state arrogance and envy, luxury and crime, and those yet more inveterate diseases of want and superfluity, he obtained of them to renounce their properties, and to consent to a new division of the land, and that they should live all together on an equal footing; merit to be their only road to eminence, and the disgrace of the evil, and credit of worthy acts, their one measure of difference between man and man.26

By confiscating all property and redistributing it in equal amounts, Plutarch’s Lycurgus sought to eliminate the corrosive zero-sum logic of his unequal society. In doing so, he was expressly seeking to promote fraternity. Lycurgus is reputed to have remarked, upon observing this equal distribution in practice, “Methinks all Laconia looks like one family estate just divided among a number of brothers.”27 This reveals his motivating principle: civic harmony or fraternity. Plutarch seems to confirm this in his conclusion to the Life of Lycurgus: “he thought that the happiness of a state consists chiefly in the exercise of virtue, and in the concord of the inhabitants.”28 To be sure, Plutarch’s Lycurgus employed a number of other devices to bring about this fraternity – including common meals, the banishment of luxury, and the abolition of gold and silver currency, since the very point of gold and silver, according to Lycurgus, was to facilitate “odious distinctions of inequality.”29 But in all cases, this fraternity was sought by promoting greater equality, which made the redistribution of property the central feature of his political reforms. Plutarch’s Solon likewise arrives as a lawgiver amidst a great crisis of inequality, when economic disparities and associated debts led to citizens selling themselves and their children into slavery: The Athenians . . . fell into their old quarrels about the government, there being as many different parties as there were diversities in the

rousseau’s ancient ends of legislation 119 country. The Hill quarter favored democracy, the Plain, oligarchy, and those that lived by the Seaside stood for a mixed sort of government, and so hindered either of the other parties from prevailing. And the disparity of fortune between the rich and the poor, at that time, also reached its height; so that the city seemed to be in a truly dangerous condition, and no other means for freeing it from disturbances and settling it to be possible but a despotic power. All the people were indebted to the rich; and either they tilled the land for their creditors, paying them a sixth part of the increase, and were, therefore, called Hectemordii and Thetes, or else they engaged their body for the debt, and might be seized, and either sent into slavery at home, or sold to strangers; some (for no law forbade it) were forced to sell their children, or flee their country to avoid the cruelty of their creditors; but the most part and the bravest of them began to combine together and encourage one another to stand to it, to choose a leader, to liberate the condemned debtors, divide the land, and change the government.30

Amidst this crisis, the Athenians appealed to Solon, not only because he was “the wisest of the Athenians,” but also because he was “the only one not implicated in the troubles, that he had not joined in the exactions of the rich, and was not involved in the necessities of the poor.”31 Solon’s most dramatic reform was to issue the seisactheia, or the remittance of all debts. This initially had the effect of disappointing both rich and poor. The wealthy had hoped that their debts would be protected and interpreted his reform as an affront to their property. The poor had hoped that Solon might have chosen a reform along the lines of Lycurgus, in confiscating all property and redistributing it equitably among all citizens. The effect, however, was to achieve a greater equality for all citizens – far greater than any recent generation of Athenians could recall.

120 david lay williams Plutarch later explains in greater detail why Solon thought that the polis could only be salvaged by reducing inequality: The remission of debts was peculiar to Solon; it was his great means for confirming the citizens’ liberty; for a mere law to give all men equal rights is but useless, if the poor must sacrifice those rights to their debts, and, in the very seats and sanctuaries of equality, the courts of justice, the offices of state, and the public discussions, be more than anywhere at the beck and bidding of the rich.32

Insofar as some citizens have substantially more than others, those with less suffer in loss of liberties. Their debts constrain their freedom – they must always work to satisfy their creditors. And in the most extreme cases, they must sell their liberty wholesale and become slaves to the rich. But even where they do not become slaves, they still suffer the loss of civil liberties in courts of law, for Plutarch’s Solon, since courts always favor those of greater means. They also lose much of their political liberty, insofar as the wealthy inevitably exercise greater political authority in the form of amplified voices in public discussions. So for Plutarch’s Solon, greater economic equality is a means to greater liberty.

Plato on Equality and Fraternity In a memorable passage from Book 8 of Plato’s Republic, Socrates describes the transition from oligarchic regimes to democratic ones: Since the rulers rule in it [oligarchy] because they own a lot, I suppose they are not willing to enact laws to prevent young people who have become intemperate from spending and wasting their wealth, so that by buying and making loans on property of such people, the rulers themselves become even richer and more honored.33

This passage, of course, describes almost precisely what had happened centuries earlier in Athens that required Solon’s reforms in the first

rousseau’s ancient ends of legislation 121 place. It was a crisis of economic inequality, and Plato’s attention to this civic challenge is important. It is easy to read the Republic without noticing the references to inequality throughout the dialogue. But on close inspection, his concern about inequality is readily apparent. For him, the city characterized by extreme economic inequality is, in fact, “two [cities] . . . which are at war with one another: the city of the poor and that of the rich.”34 This division of citizens against one another highlights precisely the most alarming consequence of inequality for Plato’s Socrates. As with Plutarch’s Lycurgus, it disrupts civic harmony or fraternity. The greatest good of any city, Socrates insists, is that which “binds it together and makes it one.” To achieve this, he describes a community of pleasures and pains, in which “all the citizens feel more or less the same joy or pain at the same gains and losses.”35 A city characterized by economic inequality, by contrast, pits citizens against one another and detaches their own sense of the good from the welfare of their neighbors. Plato significantly develops his thoughts on inequality in his Laws, a dialogue that also insists on the priority of civic harmony or friendship. The point of the laws, according to Plato’s Athenian Stranger, is “securing their [citizens’] friendship with one another.” Successful legislators must always “bring harmony to the city,” as well as promoting “friendship” and “reconciliation.”36 Given that the laws must promote friendship, it is easy enough to understand the dangers posed by radical economic inequality: “We assert that if (as we presume) the city must avoid the greatest of all plagues, which has been more correctly termed ‘civil war’ than ‘faction,’ that neither harsh poverty nor wealth should exist among any of its citizens. For both these conditions breed both civil war and faction.”37 Extreme economic inequality turns citizens against one another – perhaps first as factions, but eventually as enemies in a civil war. Plato would have known about such wars all too well, as Athens suffered multiple class-based revolutions during the Peloponnesian War years that constituted his youth.

122 david lay williams Inequality’s tendency to subvert fraternity and produce class conflict means that legislators must prioritize equality. While Plato’s Athenian Stranger introduces several measures to combat inequality, perhaps his most striking innovation is his insistence that ideal republics cap wealth at no more than four times that held by the city’s poorest citizens – a radical equality compared to what characterized Athens in Plato’s lifetime.38

rousseau: liberty, equality, and fraternity Shortly after introducing the Lawgiver in Book 2, chapter 7 of the Social Contract, Rousseau immediately turns to the conditions necessary to introduce effective laws. This passage is rarely discussed but deserves careful attention: Just as a wise architect, before putting up a large building, inspects and tests the soil to see whether it can support the weight, so the wise founder does not begin by drawing up good laws in themselves, but considers first whether the people for whom he intends them is fit to bear them. This is why Plato refused to give law to the Arcadians and Cyrenians, since he knew that these two peoples were rich and could not tolerate equality: this is why there were good laws and wicked men in Crete, for Minos had done no more than to discipline a vice-ridden people. (SC, 2.8 [III:384–5])

For Rousseau, there is little point in legislating unless the people are ready to receive those laws. One of the clearest indications that a populace is ill prepared for good laws is the presence of concentrated wealth and inequality. Rousseau’s citation of Plato here is telling and almost entirely ignored in the literature. It is worth noting Rousseau’s possible sources here, as it will help clarify the lessons he draws from Plato. Victor Gourevitch has recently observed that one likely source is Plutarch’s Life of Lucullus, in which it was reported that Plato once had the opportunity of legislating for the Cyrenians but declined because they were abounding “in wealth and plenty.”39 It is also likely that Rousseau examined Diogenes Laertius, who reports that “the

rousseau’s ancient ends of legislation 123 Arcadians and Thebans, when they were founding Megalopolis, invited Plato to be their legislator; but . . . when he discovered that they were opposed to equality of possessions, he refused to go.”40 These two ancient reports provide Rousseau with the combination of “Arcadians and Cyrenians” that he cites in the opening paragraph of SC, 2.8. Beyond this, however, is Rousseau’s own awareness of Plato’s concern about excessive wealth and inequality in the Laws. As M. J. Silverthorne has noted, Rousseau paid “particular attention” to this dialogue above all of Plato’s writings.41 And among the passages that we know interested Rousseau in Plato’s Laws was this: that an excess in “the possession of money and property . . . create[s] enmities and civil strife both in cities and in private life.”42 So Rousseau was clearly attuned to Plato’s concerns about excessive wealth and inequality. While it is no mystery that Rousseau was himself deeply concerned about inequality, the vast majority of scholarly interest has focused on his Discourse on the Origin of Inequality.43 This is only appropriate, since inequality constitutes that essay’s central theme. Economic inequality pits the rich against the poor – and stimulates the rich to pursue the “pleasure of dominating” above all other pleasures, such that they think only of subjugating and enslaving their neighbors; like those ravenous wolves which once they have tasted human flesh scorn all other food” (SD, 171 [III:175–6]). It is also inequality that fosters civil war and the disastrous social contract of the Second Discourse that cements “the law of property and inequality,” subjecting the vast majority of humankind to “servitude and misery” (SD, 173 [III:178]). Finally, it is this sustained economic inequality in which “a handful of powerful and rich men at the pinnacle of the greatness and fortune while the masses grovel in obscurity and misery,” and where “the former value the things they enjoy only to the extent that the others are deprived of them” (SD, 184 [III: 189]). Rousseau’s critique of inequality in the Second Discourse has resonated with generations of readers for his attention to its psychic

124 david lay williams costs.44 Yet his plan for addressing inequality has been almost completely ignored. Frederick Neuhouser, among the most accomplished scholars of Rousseau and inequality, has commented that his proposals for addressing inequality are “not very relevant to modern, market-based economies.”45 And, to be sure, Rousseau’s most detailed plans for addressing inequality are to be found in his Political Economy and his Plan for a Constitutional Project for Corsica, rather than in his Second Discourse or Social Contract. But there is still much to be gained from examining his thoughts about economic inequality in the Social Contract, because they tell us a great deal about the centrality of equality to his legislative project. The first passage in which Rousseau addresses economic inequality in the Social Contract comes in the final chapter of Book 1, at the conclusion of a chapter on property rights, where he emphasizes equality’s importance to the entire treatise. The social contract, he explains, replaces the “natural equality” of individuals in the state of nature with a “moral and legitimate equality.” In the immediate sense, this is an equality of rights – that no citizen should be denied any rights enjoyed by others. To this discussion, however, he adds a crucial footnote: Under bad governments this equality [of rights] is only apparent and illusory; it serves only to keep the poor in his misery and the rich in his usurpation. In fact the laws are always useful to those who possess something and harmful to those who having nothing: It follows that the social state is advantageous to men only insofar as all have something and none of them has too much. (SC, 1.9 [III:367])

This passage should resonate with readers of the Second Discourse, insofar as the poor of the ill-fated social contract of that essay believed they were “securing their freedom” but had in fact “transformed a skillful usurpation into an irrevocable right” (SD, 173 [III:177–8]). The lesson Rousseau had drawn from his earlier essay was that, in order to secure a genuine “freedom,” it would first be necessary to

rousseau’s ancient ends of legislation 125 establish greater economic equality – where “all have something and none of them has too much.”46 But beyond this, it is also precisely the same concern that troubled Plutarch’s Solon: “for a mere law to give all men equal rights is but useless.” Legal inequality is meaningless, for him, where economic inequality predominates. And it is precisely this concern that animates Rousseau in the Social Contract. The second substantial passage addressing economic inequality in the Social Contract comes in Book 2, chapter 11 – the same chapter in which Rousseau identifies freedom and equality as the two objects of legislation. There are three paragraphs here, including a footnote to the first paragraph: I have already said what civil freedom is; with regard to equality, this word must not be understood to mean that degrees of power and wealth should be absolutely the same, but that, as regards power, it be devoid of all violence and never be exercised except by virtue of rank and the laws, and that as regards wealth, no citizen be rich enough to buy another, and none so poor that he is compelled to sell himself: which assumes moderation in avarice and covetousness in the part of the lowly. Do you, then, want to give the State stability? bring the extremes as close together as possible; tolerate neither very rich people nor beggars. These two states, which are naturally inseparable, are equally fatal to the common good; from one come the abettors of tyranny, and from the other tyrants; it is always between these two that freedom gets trafficked; one buys it, the other sells. This equality, they say, is a chimera of speculation that cannot exist in practice: But if abuse is inevitable, does it follow that it ought not at least be regulated? It is precisely because the force of things always tends to destroy equality that the force of legislation should always tend to maintain it. (SC, 2.11 [III:392])

These paragraphs provide unambiguous evidence that Rousseau desires a substantial economic equality.47 And his justification for

126 david lay williams this equality is instructive: “no citizen [should] be rich enough to buy another, and none so poor that he is compelled to sell himself.” Knowing his affection for Plutarch, it is easy enough to see ancient Athens in this passage shortly before Solon’s arrival, where impoverished debtors were compelled to sell themselves – literally selling their freedom – to their wealthy creditors. Extreme inequality creates precisely the circumstances where such transactions might occur. So for Rousseau, this inequality must be prevented in the first place. This is surely why he makes a point of praising Solon for preventing inequality (SC, 2.3 [III:372]).48 The above paragraphs also suggest a link to Plato, concerning the dangers of inequality. In the Republic, Socrates warns about a specific danger that threatens democracies – the temptation on the part of the poor to install a populist tyrannical ruler, who appeals to their poverty by dropping “hints about the cancellation of debts and the redistribution of land.”49 Such “hints” are, Socrates suggests, never more than hints because the true animating force of tyrants is not debt relief, but rather their own pleonexia, or insatiable greed. The role of inequality here is crucial in Plato’s account. The tyrant ingratiates himself to the numerous poor with “hints” of economic redistribution. In more equal societies, such false promises would have little appeal. Rousseau clearly understands the problem of inequality in these terms: “These two states [wealth and poverty], which are naturally inseparable, are equally fatal to the common good; from one come the abettors of tyranny, and from the other tyrants.” Clearly paralleling Plato’s account in the transition from democracy to tyranny, the wealthy supply the aspiring tyrant while the poor are easily seduced into adopting the tyrant as their champion because of their own suffering and dissatisfaction. Rousseau is keenly aware of this problem from his knowledge of Athenian history. In a discussion of Athenian democracy in his Political Economy, he cites the danger of the people being “seduced by private interests which some few skillful men succeed by their reputation and eloquence to substitute for the people’s own interest.” For him, the Athenian “democracy” was often

rousseau’s ancient ends of legislation 127 in reality “a tyrannical aristocracy” (PE, 8 [III:247]). He could hardly be more direct in depicting this danger: “What is most needful and perhaps most difficult in government is a strict integrity to render justice to all, and above all to protect the poor from the tyranny of the rich.” For this reason, above all, he emphasizes that it is “one of the most important tasks of government to prevent the extreme inequality of fortunes” (PE, 19 [III:258]). Extreme inequality, for both Plato and Rousseau, paves the way for tyranny. Reducing inequality reduces this specific threat. There is yet another Platonic element to be found in the above excerpt from the Social Contract. Rousseau seems to concede that the perfect solution to the problem is more or less impossible. But this impossibility is no excuse for shirking the effort to do something to address the problem of inequality: “if abuse is inevitable [viz., economic inequality itself], does it follow that it ought not at least be regulated?” This concession parallels Plato’s own approach to inequality in the Laws. While Plato’s Athenian Stranger outlines his plan for an ideal distribution of material resources in Magnesia (viz., a 4:1 ratio, the wealthiest households to the poorest), he acknowledges that the opportunities to bring this about are rare, largely limited to brand-new colonies in unoccupied territories. In practical legislation, in crafting laws for peoples who already exist, ideal solutions are largely unattainable. But as the Stranger insists, the legislator must nevertheless “contrive to bring about whatever is closest to this.”50 For the Stranger, this involves not so much the relatively radical measures of Lycurgus and Solon – “redivision of land, cancelling of debts, and redistribution” – as “small, careful transformation that gradually produces a small result over a long period of time.”51 This incremental approach may be less immediately appealing to many among the poor, but it is animated by two concerns: (1) a desire not to undermine the civic harmony states need to thrive, and (2) a steadfast commitment, nevertheless, to reducing inequality, placing the polis on a sturdier foundation over the long term. Part of this process, for Plato’s Stranger, must include reshaping the public

128 david lay williams morals, shaming both greed and the possession of massive fortunes. A parallel measure can also be found in Rousseau’s Social Contract, where he speaks of the “fourth” kind of law that it falls to lawgivers to shape – “the most important [law] of all; which gets engraved not in marble or in bronze but in the hearts of the Citizens. . . . I speak of morals [moeurs], customs, and above all of opinion” (SC, 2.12 [III:394]).52 Elaborating in his Political Economy, Rousseau explains that this task necessarily includes reducing economic inequality and the values that accompany it: Venality pushed to such excess that reputation is reckoned in cash, and the virtues themselves are sold for money: such are the most perceptible causes of opulence and of misery, of private interest replacing the public interest, of the citizens’ hatred of one another, of their indifference to the common cause, of the corruption of the people, and of the weakening of all the springs of government. Such are, consequently, evils difficult to cure by the time they make themselves felt, but which a wise administration must prevent in order to maintain, by means of good morals, respect for the laws, love of fatherland, and the vigor of the general will. (PE, 20 [III:259])53

As Rousseau would subsequently elaborate in his Emile, morals tend to be corrupted by “the inequality of fortunes” (Emile, 468 [IV:850]).54 When citizens are poor, they find themselves in a position where they sometimes feel compelled to compromise their virtue in order to provide for their basic needs. The rich tend to vice because it feeds their amour-propre. Consider, for example, stories about wealthy high-school students who hire smart, but poor, students to take their standardized exams for them. The morals of both rich and poor are severely compromised, and they are so precisely because of the underlying inequality. The poor feel it necessary to survive; the rich feel it necessary to satisfy their insatiable lust for status. The lesson to be learned from both Plato and Rousseau on this point seems to be that public morals and equality must work together.55

rousseau’s ancient ends of legislation 129 One of Rousseau’s major concerns about inequality, as described above (p. 123), is its fueling of mutual animosity. If inequality can pit citizens against one another, it threatens Rousseauian republicanism. For this, it is instructive to consider his warning in the Social Contract: When the social knot begins to slacken and the State to grown weak; when private interests begin to make themselves felt and small societies to influence the large one, the common interest gets diluted and meets opposition, votes are no longer unanimous, and the general will is no longer the will of all, contradictions and disagreements arise, and the best opinion no longer carries the day unchallenged. (SC, 4.1 [III: 438])

Reading this passage in the context of his concern about the dangers of economic inequality highlights the true danger of inequality for Rousseau. Where there are both very rich and very poor citizens, they inevitably adopt different and opposed interests. And where citizens of the same state come to embrace two very different and opposed conceptions of the general will, there is not only a breakdown in the general will itself, but also threats to the republic’s long-term viability. This is surely why Rousseau insists that the “particular will tends by its nature to partiality and the general will to equality” (SC, 2.1 [III:368]).56 As he would elaborate in his Emile, “the more we are removed from equality, the more our natural sentiments are corrupted” (Emile, 406 [IV:764]). This clarifies why, for him, it becomes easy for the rich to prey on the poor in unequal societies: “the rich are consoled about the ill they do the poor, because they assume the latter to be stupid enough to feel nothing of it” (Emile, 225 [IV:509]). Once inequality creeps into a republic, the “social knot” dissolves, and citizens’ natural pity has been disabled with regard to the opposing class. This is why Shklar insists that, for Rousseau, “once there are rich and poor, all is lost.”57

130 david lay williams As Rousseau is outlining a republic in the Social Contract, it is also important to note a particular threat of inequality that he describes in his Letter to d’Alembert: Never in a monarchy can the opulence of an individual put him above the prince;58 but, in a republic, it can easily put him above the laws. Then the government no longer has force, and the rich are always the true sovereign. On the basis of these incontestable maxims, it remains to be considered whether inequality has not reached among us the last limit to which it can go without shaking the republic. (d’Alembert, 336 [V:106])

For Rousseau, ascendance in wealth corresponds with legal impunity and even the usurpation of legal authority. As he succinctly states in his Letters Written from the Mountain, “the rich man holds the Law in his purse” (Mountain, 300 [III:890]).59 And insofar as this behavior is tolerated, the rich have effectively replaced the legitimate sovereign in Rousseau’s republic – the general will – with their own authority, undermining the rule of law, since as he insists in his Second Discourse, “if there is a single person . . . who is not subject to the rule of law, all the others are necessarily at his discretion” (SD, 115 [III:112]). This attention to the “social knot” also, once again, reveals the extent to which Rousseau had internalized the lessons of Plato and Plutarch regarding fraternity. This “social knot” is the principle of fraternity adopted by the classics-obsessed early French Republic.60 But its origins reside in the earliest republics of ancient Greece. Recall that for Plutarch’s Lycurgus, “the happiness of a state consists chiefly in the exercise of virtue, and in the concord of the inhabitants.”61 To achieve this concord, for Lycurgus, it was necessary to eliminate the disharmony engendered by inequality. This was precisely why he pursued the radical course of property confiscation and redistribution. Recall that for Plato’s Athenian Stranger in the Laws the purpose of the laws was to “bring harmony to the city.”62 And, further, that the problem of economic inequality, for the Stranger, is that it “create[s]

rousseau’s ancient ends of legislation 131 enmities and civil strife.”63 Therefore, he promoted greater equality in order to facilitate the civic harmony and friendship that characterizes successful republics. Rousseau himself observes in his Government of Poland that the “spirit of the ancient institutions” was to forge “bonds that might attach the Citizens to the fatherland and to one another” (Poland, 181 [III:958]). Drawing from these models, a healthy republic for him is one in which there are “so many reasons [for citizens] to like one another” and where there is a real prospect of them remaining “forever united.” Such affection and unity, Rousseau insists, is undermined by inequality (d’Alembert, 343 [V:343]). He is writing in precisely this spirit in the Social Contract when he seeks to “bring the extremes as close together as possible.”64 Thus, while perhaps valuable on its own terms, for Rousseau, equality is also necessary in order to bring about the other desired objects of legislation: liberty and fraternity. Drawing from Plutarch’s Solon, Rousseau had learned that liberty is almost meaningless without a relatively equal distribution of economic resources – that liberties would be bought and sold, so long as some had enormous wealth and others had almost nothing.65 And drawing from Plato and Plutarch’s Lycurgus, Rousseau had learned that fraternity requires greater equality – that it would be impossible to unite with others whose interests are almost entirely distinct from one’s own. This is why equality has such high highest legislative priority – because both liberty and fraternity are impossible without it.

conclusion, or rousseau’s modifications of ancient lessons While I have endeavored to demonstrate the depths of Rousseau’s lessons drawn from the ancient past, I do not want to suggest that he in no way developed their thoughts, particularly as regards the effects of inequality. Rousseau was writing in a different historical context and about importantly different people. Whereas the inequality of ancient societies was largely ascribed by birth, inequalities in eighteenth-century Europe, including Geneva and Paris, increasingly

132 david lay williams resulted from disparate talents. This is, of course, an important theme of the Discourses, in which Rousseau describes citizens who have come to be praised for their wealth, rather than for their virtue. In creating a commercial economy where people are assumed to be responsible for their lot in life, citizens began to measure one another’s value in wealth assessments.66 If one had amassed great wealth, one was assumed to be talented and successful. Those who lingered in poverty, by contrast, did so because they were taken to be stupid and lazy. The meritocratic dimensions of the new economy thus only accelerated the problems that so concerned Plato and Plutarch’s Solon and Lycurgus. This served, for many, to justify the suffering of the poor, who were now somehow personally responsible for their own misery. And it simultaneously, to Rousseau’s great alarm, excused the predations of the wealthy, who in preying on the poor were merely reaping the rewards of their talents. In the mad rush to achieve and reward distinction, modern society had created a social environment in which citizens “can only live together by obstructing, supplanting, deceiving, betraying, and destroying one another.” Modernity had sought, to his mind, to replace the affective fraternal bonds prioritized by Lycurgus and Plato with social ties planted in the weak soil of “self-interest.” But this elevation of self-interest in an environment of extreme inequality ultimately pits citizens against one another where “rich men” are the “enemies of virtue. . . . The multitude grovels in poverty; and all are slaves of vice” (Narcissus, 100–1 [III:968–69]).

notes 1. Though as I have argued elsewhere, Hobbes is undervalued as a theorist of material or economic equality. See Williams 2021. 2. Locke 1988, 2.4. 3. Hobbes [1651] 2011, chapter 21. 4. Hobbes [1651] 2011, 15.21. 5. Locke 1988, 4.22. 6. Locke 1988, 6.54.

rousseau’s ancient ends of legislation 133 7. All citations to Rousseau’s texts are to page number, followed by corresponding volume and page number of the French Pléiade edition (Oeuvres complètes de Jean-Jacques Rousseau, ed. Bernard Gagnebin and Marcel Raymond. 5 vols. Paris: Gallimard, 1959–95). I use the following abbreviations: SC = Social Contract; SD = Discourse on the Origin of Inequality; Poland = Government of Poland; PE = Discourse on Political Economy; PF = Political Fragments; LM = Letters Written from the Mountain; Corsica = Constitutional Project for Corsica; Narcissus = Preface to Narcissus. All other Rousseau citations should be self-evident. 8. Hobbes [1651] 2011, 30.21. See Hoye 2019, 199, 206. 9. Locke 1988, 9.124. 10. Weirich (1992) has suggested that Aristotle is Rousseau’s pervasive ancient influence when it comes to understanding his conception of equality. Yet Weirich provides no evidence to suggest that Rousseau was attentive to Aristotle on these matters, and he exaggerates the degree to which Rousseau is comfortable with economic inequality by failing to address the many ways in which Rousseau thinks it threatens republics. 11. According to Marguerite Reichenberg, Rousseau cites Plutarch sixtyeight times and Plato fifty-six (Reichenberg 1932, 174–5). That is more than any other source, other than the Bible. 12. Riley 1982, 99. 13. Hendel 1934, 2.321. 14. Keller 1939. 15. Shklar 2001. It should be noted that, even as Shklar is especially attuned to both Rousseau’s attention to inequality and his affection for the ancients, she does not comment on the connection of the two. 16. Viroli 1988, 158. 17. Oprea 2019. 18. Kingston 2019. 19. Silverthorne 1973, 244. 20. Masters 1968, 99–105; Cooper 2008, 175–99. 21. Trachtenberg 2001. 22. Cusher 2016. 23. I have made one modest previous effort describing Plato’s conception of economic equality and its potential influence over Rousseau (Williams 2007, 174–5).

134 david lay williams 24. To be sure, he also cites Plutarch’s accounts of Numa and Servius in the same passage. 25. Plutarch, Lives, vol. 1, 59. 26. Plutarch 2001, 1.159. 27. Plutarch 2001, 1.59. 28. Plutarch 2001, 1.80. 29. Plutarch 2001, 1.60. Plato’s Athenian Stranger banishes private holdings of gold and silver for similar reasons (Laws, 742a), a passage that Rousseau marked with a vertical line in his personal Latin Ficino translation of Plato’s dialogues. Rousseau cites Lycurgus’ currency reforms in his Government of Poland, as a model to which healthy republics could aspire, insofar as it made wealth less appealing to citizens (Poland, 233 [III:1008]). He goes further in Corsica in banning currency, since “money is a sign which has a genuine effect only by the inequality of distribution . . . It is useful only as a sign of inequality” (Corsica, 140 [III:921]). 30. Plutarch 2001, 1.114. 31. Plutarch 2001, 1.114. 32. Plutarch 2001, 1.145. 33. Plato, Republic, 555c. 34. Plato, Republic, 422e–423a. 35. Republic, 462b. Plato sometimes explains the priority of this fraternal love by warning against its opposite: “do we know of any greater evil for a city than what tears it apart and makes it many instead of one?” (Republic, 462a–b). 36. Laws, 627e. Previous scholars have observed and commented on the role of fraternal love in Plato (e.g., Vlastos 1981, 11–19; Seung 1996, 99–106). 37. Laws, 744d. 38. I have elaborated substantially on Plato’s approach to economic inequality, including his many proposals for addressing it, in Williams 2020. 39. Gourevitch 2019, 305; Plutarch 2001, 1.661. 40. Diogenes Laertius 1972, 1.299. Matthew W. Maguire and I have noted this previously in Maguire and Williams 2018, 238 n. 2. 41. Silverthorne 1973, 241. 42. Plato, Laws, 728e–729a. Rousseau underlined this passage and placed a “+” in the margin in his personal copy of the Ficino Latin translation of

rousseau’s ancient ends of legislation 135 Plato’s Laws, indicating special interest. Rousseau’s copy of Plato’s Dialogues can be found in the British Library, documents #G.16721–5. 43. E.g., Neuhouser 2013. Neuhouser makes scattered references to the Social Contract but does not take up any sustained examination of the text in this essay or his subsequent book on Rousseau and inequality (Neuhouser 2014). 44. Most recently along these lines, see McLendon 2018. 45. Neuhouser 2014, 207 n. 42. Neuhouser, to his credit, acknowledges that Rousseau offers a plan. Yet his quick dismissal of Rousseau’s plans ignores one reason this might be the case – that Rousseau’s criticisms of the market economy are so foundational to that very system. As such, perhaps his arguments deserve more careful attention for precisely these reasons. See Douglass 2015b, 373. 46. I want to note here that Rousseau does not mean to establish a perfect economic equality, where all citizens have precisely the same holdings. As he clarifies in his “Political Fragments,” it is “a waste of time to stop at a supposition as chimerical as that of the equal distribution of riches. This equality cannot be conceded even hypothetically, because it is not in the nature of things” (PF, 49 [III:522]). Yet he proceeds in the very next paragraph to outline the various ways in which the rich menace the poor. 47. The equality Rousseau demands is, I think, more rigorous than Samuel Fleischacker’s claim that he was only interested in a very moderate equality (Fleischacker 2004, 59). Another scholar, John P. McCormick, has gone so far as to suggest Rousseau is not egalitarian at all. See McCormick 2007, 2018. See Rousselière’s essay in this volume (Chapter 11) for a response to McCormick’s arguments. 48. While Rousseau clearly approves of Solon’s efforts to restore equality to Athens, it must be noted that he had concerns about his seisactheia, or remittance of debts, which he used to bring it about. In a discussion of the general will in Emile, Rousseau explains that “the sovereign has no right to touch the possessions of one or more individuals. But it can legitimately seize the possessions of all, as was done at Sparta in the time of Lycurgus; the abolition of debts by Solon, on the other hand, was an illegitimate act” (Emile, 462 [IV:841]). This is a technical rejection of Solon’s methods, insofar as, it seems for Rousseau, it violates the general will’s prescription that it legislate only generally and not “on a particular man or fact” (SC, 2.4.6 [III:374]). It is unclear whether or not Rousseau is

136 david lay williams following his own rule here, as the seisactheia was not aimed at a “particular man” or even any class of men, any more so than a law mandating seatbelt use applies primarily to those who would not wear them of their own accord. Scholars, at any rate, have noted serious difficulties in Rousseau’s rule and its applications. See Simpson 2006a. 49. Plato, Republic, 566a. 50. Plato, Laws, 746c. 51. Plato, Laws, 736a. 52. The first three categories of the law include constitutional, criminal, and civil laws. 53. As Maurizio Viroli has observed, “For Rousseau . . . the only way to incline men to virtue and to discourage them from the vanity of wealth is for there to be a transformation in the customs, that is to say, the criteria used by a community, in order to assess the relative worth of its members” (Viroli 1988, 93). Along these lines, see Rousseau’s Political Fragments, 36 (III: 502–3). 54. The ways in which great personal wealth threatens one’s own morals is the dominant theme of Rousseau’s “On Wealth and Fragments on Taste.” This treatment, again, parallels Plato’s striking statements in his Laws, for example, as when his Athenian Stranger insists, “it is impossible that those who become very rich also become good” (Laws, 742e; see also Laws 743a, 743c). 55. The evidence just presented suggests that Maurice Cranston is correct when he claims that Rousseau “is hardly more egalitarian than Plato” (1984, 116) only because he severely underestimates the egalitarian commitments of both Plato and Rousseau. 56. See also Emile, 463 (IV:842); Poland, 220 (III:994); and LM, 301 (III:891); as well as Williams 2014, 260–3. 57. Shklar 1969, 187. 58. Rousseau here differs from Hobbes, who thinks that monarchies can be similarly threatened by particularly wealthy subjects. See Williams 2021, 42–4. 59. See also Corsica, 155 (III:939). 60. It is noteworthy that while the French Republic attempted to adopt social and political equality, it did not take serious steps toward addressing the underlying economic equality (Piketty 2014, 365; Piketty 2020, 116–25). As J. S. Mill similarly noted, “In the very height of the French Revolution

rousseau’s ancient ends of legislation 137 no private property was touched” ([1837] 1982, 401). For Rousseau, such half-measures are destined to fail, since social and political equality require a foundation of economic equality, as described at SC, 1.9 {III:367]. This fact alone suggests that if the revolutionaries were Rousseauists, they were not very good ones. 61. Plutarch 2001, 1.80. 62. Plato, Laws, 627e. 63. Plato, Laws, 728e–729a. 64. I outline Rousseau’s many objections to inequality, as well as his plans for addressing them in Williams 2017. 65. Allen Wood has observed that it was Rousseau’s connection of economic equality to liberty that influenced and shaped Kant’s, Fichte’s, and Marx’s views of the same (Wood 2014, 255–6). 66. I draw here partly from McLendon 2018, 7, 109.

Property and Possession in Rousseau’s Social Contract

7

Rafeeq Hasan

1. What is Rousseau’s attitude toward private property? Complex, to say the least. On one hand, Part II of his Discourse on Inequality begins with the memorable salvo: The first person who, having enclosed a plot of ground, bethought himself to say this is mine, and found people simple enough to believe him, was the true founder of civil society. How many crimes, wars, murders, how many miseries and horrors Mankind would have been spared by him who, pulling up the stakes or filling in the ditch, had cried out to his kind: Beware of listening to this imposter; You are lost if you forget that the fruits are everyone’s and the Earth no one’s. (DOI, 165/OC 3, 164; emphasis in original)1

On the other hand, when Rousseau turns from social critique to constructive political theory, he suggests that property protection is integral to a just state. In the Discourse on Political Economy, for example, property is “the true foundation of civil society . . . the most sacred of all the citizens’ rights, and in some respects more important than freedom itself” (DPE, 23–4/OC 3, 263). Further, in The Social Contract the fundamental political project is “to find a form of association that will defend and protect the person and the goods of each associate with the full common force, and by means of which each, uniting with all, nevertheless obey only himself and remain as free as before” (SC, I.6.4/OC 3, 360; emphasis mine).2 138

property and possession in rousseau’s social contract 139 Is there a coherent theory of property underlying these seemingly disparate remarks? Close examination of property’s role in The Social Contract, especially the dense chapter entitled “Of Real Property,” can shed light on this question.3 Rousseau’s treatment of property in The Social Contract, I propose, makes a nuanced intervention into the familiar debate about whether property rights are conventional or natural. Let me briefly summarize the terms of this debate. For the conventionalist, property rights are entirely products of human arrangements such as social practices, law, and state; absent such arrangements, there is no moral obligation to respect another’s possessions. For the natural lawyer, by contrast, individuals have a moral entitlement to property that obtains independently of conventional arrangements and so constrains the forms such arrangements may take.4 (Said in contractarian language: property rights obtain in “the state of nature.”) According to the conventionalist, respecting someone’s property is like stopping at red lights; both obligations depend for their legitimacy on the existence of a social order. Whereas according to the natural lawyer, refraining from interfering with someone’s property is like refraining from assault; both obligations prohibit actions that are wrong in themselves, not wrong simply by law. Conventionalism about property is often associated with Hobbes and Hume; the natural rights view with Locke.5 Where is Rousseau in this venerable debate? A cursory reading of The Social Contract might take Rousseau to be a conventionalist. After all, he suggests that there are no “property relationships” or “stable property” (propriété constante) in the natural condition (SC, I.4.8/OC 3, 357), and that it is only via the social contract that man gains “property in everything he possesses” (SC, I.8.2/OC 3, 364). Yet in the “Of Real Property” chapter, Rousseau also refers to a natural or prepolitical dimension of property. He discusses the “right of the first occupant,” speaks of an original “community of goods,” and suggests, in an explicitly Lockean vein, that “labor and cultivation” are “the only sign of property that others ought to respect in the absence of legal titles” (SC, I.9.2–3/OC 3, 365–6).

140 rafeeq hasan The complexity of Rousseau’s views on property comes to a head in a key passage on the “transition” (SC, I.8.1/OC 3, 364) from the state of nature to political community: What man loses by the social contract is his natural freedom and an unlimited right to everything that tempts him and he can reach; what he gains is civil freedom and property in everything he possesses. In order not to be mistaken about these compensations, a clear distinction has to be drawn between natural freedom that has no other bounds than the individual’s force and civil freedom that is limited by the general will, and between possession that is merely the effect of force or the right of the first occupant and property that can only be founded on a positive title. (SC, I.8.2/OC 3, 364–5; emphasis mine)

This passage seems a clear endorsement of conventionalism: property emerges only through the social contract. In the absence of political institutions, Rousseau appears to say, there are no genuine obligations to respect the property of others, only a diffuse and conflictprone entitlement to take what one wants (“an unlimited right to everything that tempts him and he can reach”). Read carefully, however, this passage intimates a more complex relationship between the conventionality of “property” and the natural status of “possession.” For it also says that in the state of nature possessory claims are not only (or at least not always) obtained through mere “force” but can also be expressions of a “right of the first occupant.” It appears then that for Rousseau property rights are not created solely by state and law but instead represent some kind of transformation of prepolitical rights concerning the use of things. But what exactly this means is precisely what awaits explanation.6 Reconstructing Rousseau’s views on property is important for understanding his broader position within the history of political thought. (Is Rousseau’s vision of a just society liberal, republican, or socialist in spirit?) But such an exercise is also of independent philosophical interest. This is because both positions in the property

property and possession in rousseau’s social contract 141 debate speak to something compelling. The attractions of conventionalism are perhaps more obvious. Why think that just by nature people have rights to own parts of the earth, especially when recognizing their proprietary claims often comes at the cost of great human immiseration? Since most property is maintained by social arrangements – what good is a car without roads on which to drive it? – it seems natural to conclude that society should have the authority to construct property rights in a manner that best advances its own ends, not least of which is the pursuit of distributive justice. Behind conventionalism stands laudable aspirations for social reform.7 Still, the natural rights position is not without plausibility. To see why, imagine two individuals encountering one another in the wilderness, far beyond the reach of law and state. Many (myself included) will hold that these individuals have duties not to murder and assault one another, duties that stem from their shared personhood. But once one recognizes the moral centrality of personhood, it becomes significant that persons’ essential activities characteristically involve the use of land, natural resources, and tools. Thus, the very same considerations that justify protections of the person might also justify protections of the material substratum or expression of the person’s activities. In other words, if one of these individuals interferes with the crops or dwelling of the other, it seems that the wrongness of their actions, just like the wrongness of assault, does not depend on the existence of a shared public order or social conventions that declare theft or vandalism a crime.8 Such state of nature scenarios may appear irrelevant to the modern world. But then make one of these individuals an Indigenous person and the other an artificial person such as a state or multinational corporation. In such cases, the conventionalist view could easily justify colonial occupation and territorial expansion. Since both the conventionalist and natural rights views of property speak to important moral truths, we should examine with great interest Rousseau’s attempt to reconcile them. As we will see, a proper grasp of his position requires considering property in its

142 rafeeq hasan broadest possible senses: not just as the possessory claims of individuals backed by legal sanction, but also as the resources of the earth and the territory of states.

2. My assertion that Rousseau recognizes a “natural” (i.e., prepolitical) dimension to property rights, and so is indeed attempting to reconcile natural rights with conventionalism, may meet with suspicion. This is because The Social Contract’s central philosophical concept – the “general will” – seems to imply that all rights, property rights included, are constructed by the political community. Indeed, Rousseau appears to announce his rights-conventionalism at the outset of the Social Contract: “The social order is a sacred right that serves as the basis for all others. Yet this right does not come from nature; it is therefore founded on conventions” (SC, I.1.2/OC 3, 352). In this section, I explain the connection between the general will and conventionalism; in the next, I show how the property chapter challenges that connection. As is well known, the fundamental task of The Social Contract is to reconcile individual freedom with political authority. Rousseau’s bold claim is that one can be both free and yet subject to the state’s laws only when political authority emanates from the collective will of the community – that is, from the general will – rather than from the personal will of the ruler.9 Political power, Rousseau writes, must derive from an agreement where: “Each of us puts his person and his full power in common under the supreme direction of the general will; and as a body we receive each member as an indivisible part of the whole” (SC, I.6.9/OC 3, 361; emphasis in original). This rudimentary description of Rousseau’s fundamental thesis already suggests conventionalism. If collective agreement is the fount from which all political norms flow, then individual rights appear to be determined through democratic deliberation. Such a view is very different from one in which individuals arrive at the scene of

property and possession in rousseau’s social contract 143 deliberation, as it were, already armed with basic rights and protections. In other words, Rousseau’s conception of the general will seems to entail that rights derive from the political process, rather than being conceptually antecedent to it. It is important not to misunderstand the kind of conventionalism at issue here. Rousseau’s view is adamantly not that your rights are just whatever any particular community decides. He is not a protopopulist for whom individual protections may always be legitimately subverted through democratic force.10 Rather, Rousseau’s position is that the general will, by its very nature, must create a sphere of rights protections for the individual. In other words, if a community crafts laws empowering the majority to tyrannize minorities, its decision is not an expression of the general will. Why must the general will create individual rights? To answer this difficult question, let me draw on the often-made point that Rousseau does not understand the social contract to be a contract in the ordinary sense.11 Typical contracts are bilateral agreements in which parties transfer goods or services: for example, I agree to purchase your horse for $100. But such contracts are effective only if there already exists a coercive body – for example, a state or community – to hold each party to the terms of their agreement. Since ordinary contracts presuppose social and political institutions, they cannot be used to justify them.12 If the social contract is not about contracts, what is it about? In my view, it is centrally about the thought expressed in this terse passage: A people, says Grotius, can give itself to a king. So that according to Grotius a people is a people before giving itself to a king. That very gift is a civil act, it presupposes public deliberation. Hence 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. For this act, since it is necessarily prior to the other, is the true foundation of society. (SC, I.5.2/OC 3, 359; emphases mine)

144 rafeeq hasan Rousseau is making an important point here about relations of conceptual priority. Agreements between two parties obviously depend on both parties actually existing prior to the exchange. (One does not make contracts with ghosts.) So, Rousseau suggests, logically prior to any commission of rulers by the people is the question of what makes a collection of individuals into a unified entity – a people – in the first place. Rousseau’s answer, of course, is that for a collection of individuals to form a people it must have a general will.13 The essential point about rights is that rational individuals will not participate in the construction of such a will unless they receive certain guarantees from the collective agent they are making. The rights of the individual are those guarantees. Let me illustrate through an example, one which draws on Rousseau’s discussions of public deliberation and popular assemblies as expressions of the general will.14 Imagine many individuals in a closed room, each shouting at the top of their lungs. This scene is clearly not one of group deliberation or debate, even if they happen to be shouting about the same topic. What would resolve this cacophony into a debate? For one, a transformation in mindset: each individual must come to think of what they are shouting as in relation to what others are shouting, thereby conceptualizing their own activity in relation to a broader whole. But a change in mindset, while necessary, is not sufficient. Collective debate also requires shared norms of speech: rules about who can speak when and what topics are fit for discussion. Moreover, if these rules are to function, they must carry sanctions. If someone abruptly changes the subject, there must be some basis for the others to say, “Stay on topic,” and enforce a punishment if they decline (e.g., refusing to engage further or perhaps removing them from the room). Roughly speaking, from these elements of social reality – mental attitudes, actions, sanction-based rules – emerge a general will.15 But why would anyone in the room agree to participate in the debate unless they were guaranteed that the rules eventually established will afford them a voice in the conversation? Any set of

property and possession in rousseau’s social contract 145 rules that arbitrarily excludes some people from speaking – where arbitrary means not essential to the shared goal of the debate – could never be agreed to by everyone in the room. Think then of rights as what allows each participant to remain distinct persons in the constructed whole.16 Of course, the state can tax you, conscript you into the army, and put you in jail, not just eject you from the room. Since the power of the state is literally a matter of life and death, the rights of citizens must be far more robust than the rights of our imagined debaters. In figuring out the content of these rights, human nature enters the picture. Because human beings have vulnerable bodies and cannot survive without the use of things, they will not participate in the construction of a general will unless rights to property and person are among its guarantees. (If we scurried across the earth in protective shells or lacked opposable thumbs, the terms of the general will might be different.) But while these rights have an essential connection to our nature, they are not, for all that, natural rights. That is, Rousseau does not think that human beings just come into the world with rights to person and property that the state must protect. Rather, Rousseau’s view is that our nature merely sets the agenda for discussion, highlighting the areas about which citizens should reach a genuinely deliberative decision. In sum, Rousseau’s view is that the general will must create rights to person and property. Any group decision that fails to do so cannot count as an expression of the general will. But such rights do not in any sense precede the general will.

3. This understanding of rights, while attractive, faces a philosophical problem. In my view, “Of Real Property” is Rousseau’s attempt to solve it. To appreciate the problem, let me suggest an important criterion for a general will that was omitted from my previous discussion. In addition to a collective mindset, a set of sanction-based rules, and actions conducted in light of those rules, a general will needs to be

146 rafeeq hasan realized somewhere – usually, a location on the earth. (In this regard, general wills are no different from individual wills, which are not ethereal presences but are housed in human bodies.) With respect to the general will of the state, the name for this location is “territory.” Now here is the problem: what gives the state the right to its territory? Conventionalism struggles to answer this question. The individuals who comprise a given community find themselves in a particular corner of the earth. History, usually a violent one, explains why. But how could the artificial being such individuals create – that is, the people – just give itself the moral authority to conduct its affairs in that particular spot? (Returning to our previous example: all the individuals may have found themselves in the same room, but what authorizes them to conduct their debate there?) The idea that the people can retroactively transform the facts of history into rightful entitlement looks like sheer moral alchemy. Perhaps alchemy is the best we can do: the land grab at the foundation of the state must either be accepted as brute fact or retroactively legitimized.17 But in the property chapter, Rousseau explores the more optimistic possibility that the relation between state and territory is one of right and not sheer force. If he is correct, then underneath (both literally and conceptually) the rights constructed through political agreement is a prior moral framework governing the relation between persons and land. Questions of territory and jurisdiction help contextualize the otherwise quite mysterious opening paragraph of “Of Real Property”: Each member of the community gives himself to it the moment it gets formed, such as he then is, himself with all his forces, of which the goods he possesses are a part. Not that by this act possession changes in nature by changing hands and becomes property in the hands of the Sovereign. But just as the City’s forces are incomparably greater than a private individual’s, so, at least in relation to foreigners, does public possession in fact have greater

property and possession in rousseau’s social contract 147 force and is more irrevocable without being any more legitimate. For with regard to its members, the State is master of all their goods by the social contract, which serves as the basis of all rights within the State; but with regard to other Powers it is master of all its members’ goods only by the right of the first occupant, which it derives from private individuals. (SC, I.9.1/OC 3, 365)

This passage moves between two seemingly distinct issues. First, it treats the relation between persons and possessions in the state of nature – that is, before the state constructs property rights and becomes “master of [everyone’s] goods.” Second, it treats the relation of states to one another, specifically, the relation of one state to the property holdings of another state’s citizens. Regarding the first issue, Rousseau goes against his apparent conventionalism, suggesting that people come to state formation with their “goods” already in hand. The possessions of individuals do not simply “change hands” through the social contract and become property of the state. This is all surprising enough. But what do the natural possessory claims of individuals and the international order have to do with one another? We can reconstruct Rousseau’s somewhat tortured reasoning as follows: 1. States do not form social contracts with one another. 2. There are rightful relations between states. 3. So there are some rightful relations that do not derive from social contracts. (1, 2) Assuming (3) is true – and one could of course deny it by contesting premise (1) and/or (2) – why should it illuminate the relation between persons and their possessions in the state of nature? It does so on a further assumption: 4. The relation between individuals in the state of nature is sufficiently similar to the relation between states, so that the same kinds of rights govern both domains.

148 rafeeq hasan Since Rousseau repeatedly describes states as moral persons, (4) can plausibly be attributed to him.18 In short, Rousseau is here reasoning by analogy: because states have a duty to recognize the territory of another – a duty not derived from any explicit agreement – individuals in the state of nature have a duty to respect others’ possessions. I take this to be why Rousseau says that the rightful relation between state and territory is “derived” from individuals’ natural occupancy rights.19 How does Rousseau understand the nature and justification of the right of occupancy? The second paragraph of the property chapter explains: The right of the first occupant, although more real than the right of the stronger, becomes a true right only after the right of property has been established. Every man naturally has the right to everything he needs; but the positive act that makes him the proprietor of a given good excludes him from all the rest. Once he has received his share, he has to limit himself to it, and he has no further right to the community of goods. That is why the right of the first occupant, so weak in the state of nature, is respected by everyone in civil society. In this right one respects not so much what is another’s as what is not one’s own. (SC, I.9.2/OC 3, 365)

Evidently, Rousseau’s state of nature is not devoid of moral norms concerning the use of things; would-be proprietors are not simply mired in a war of all against all. Instead, there is a genuine right of first occupancy, a right grounded in the moral status of human needs. Since “every man naturally has the right to everything he needs,” a person is morally obligated to “limit himself” to only “his share” of the earth’s resources. The connection between occupancy and needs explains the significance of first occupancy. Rousseau’s view is not that there is some intrinsic moral value in being first. Rather, timing matters because being the first to occupy a region of the earth is a way of signaling that I am claiming my share. In so doing, I am not only

property and possession in rousseau’s social contract 149 disabling other people’s entitlement to take these resources; I am also establishing a moral barrier on my own further acquisitive activity: I have taken what I need and will take no more.20 Occupancy is thus an expressive act – it says that I am within a moral community aimed at the satisfaction of everyone’s needs. Rousseau’s subsequent quasi-Lockean reference to labor as conferring natural title must therefore be treated with care. Rousseau writes: In general, the following conditions must obtain in order to authorize the right of the first occupant to any piece of land. First, that this land be not yet inhabited by anyone; second, that one occupy only as much of it as one needs in order to subsist; in the third place, that one take possession of it not by a vain ceremony but by labor and cultivation, the only sign of property that others to respect in the absence of legal tiles. (SC I.9.2/OC 3, 365–66)

Rousseau’s social ontology is not one of atomized individuals, each transferring ownership over resources through their labor – as on some readings of Locke.21 Rather, once again Rousseau’s view seems to be that laboring on a thing is a way of demonstrating one’s upright motivations to others.22 By laboring, I say to others that need, rather than greed, is my reason for action. But now our original puzzle returns. Why isn’t the complex moral economy detailed in these passages – governed by concepts of need, occupancy, and fair shares of the earth – just about property, full stop? Rousseau appears to hold that we require the earth’s resources in order to meet basic human needs, and that laboring on those resources is a way of indicating this virtuous motivation. But he does not accept the natural conclusion that individuals in the state of nature have full-fledged duties to respect other’s fair shares. Instead, he describes the right of occupancy as “weak in the state of nature,” becoming “a true right” only once the state constructs property rights. Rousseau could of course avail himself of the familiar Lockean argument that in the state of nature individuals cannot enforce their

150 rafeeq hasan rights or resolve disputes in a manner consonant with the basic equality and independence of all. But in fact, just a few paragraphs after the passages I have just considered, Rousseau appears to retract any natural rights elements in his theory of property and embrace conventionalism instead. Returning to his claim that political society requires the complete subordination of all individuals’ rights and powers to the general will, Rousseau writes: What is remarkable about this alienation is that by accepting the goods of private individuals, the community, far from despoiling them of their goods, merely secures their possession of them by transforming usurpation into a genuine right and use into property. Then the possessors, being considered to be trustees of the public good, with their rights respected by all the members of the State and secured by all of its forces against any foreign power, have, by an assignment advantageous to the public and even more so to themselves, so to speak acquired everything they gave. (SC, I.9.6/ OC 3, 367)

Above, the Rousseauian state of nature was governed by moral norms based on the fulfillment of needs. Here, it is described in more Hobbesian terms as governed by force and assertion. Proprietary claims are not expressions of a “right of the first occupant” but mere “usurpation.” Individual proprietors emerge only with the state and should therefore be viewed as “trustees of the public good.” In short, it now appears that the reason my possessions are “mine” is not because of a natural occupancy claim that a political order must recognize, but rather because the political order has decided that “assigning” goods to individuals best serves public ends.23 What is going on? One possibility is that what looks like contradiction – there are and there are not ownership claims in the state of nature – is actually a more complex, dialectical form of argument. Rousseau may be suggesting that although there are no natural property rights strictly speaking, any legitimate public order must create a system of private ownership rights.24 But this just pushes the

property and possession in rousseau’s social contract 151 question back a step. By what necessity? Is it because individuals have property rights, or because it is a good idea for the state to grant them such rights? Is “private” property really private, or is it solely a creature of public order?

4. I do not know how to reconcile everything Rousseau says about property in The Social Contract. Ultimately, he may just have been caught between the attractions of both natural rights and conventionalism. Nevertheless, I think we can make some sense of Rousseau’s remarks by reflecting more carefully on the specific place of rights within morality as a whole. What I have in mind is the venerable idea – expressed in a number of different ways throughout the history of Western philosophy – that not everything I morally ought to do is something that others have the right to demand that I do. When Rousseau says that the right of the first occupant is not a “true” or “genuine” right, I think what he means is that while individuals in the state of nature have a moral obligation to take only what they need, such an obligation does not correspond to anyone’s rights. It follows then that any attempt to enforce one’s ownership claims in the state of nature, since such claims are not based on rights, is closer to mere force or violence than the claimant would like to admit. Here is an illustration of the distinction between morality and rights I have in mind. Suppose there is a moral obligation to tell the truth. (For my purposes, it does not much matter what justifies this obligation, whether utilitarian considerations of overall happiness, Kantian considerations of rational self-commitment, or something else entirely.) If I lie about my accomplishments, I violate this moral prohibition and so commit a moral wrong. But it need not follow that I wrong anyone in particular. Suppose you, a stranger, happen to pick up the phone when I call to blather on about my (false) successes at work. It is of course true that the wrong I do takes place within your midst. You, not someone else, are the one listening. But you have no specific claim against me. Because I do not violate your rights, you are

152 rafeeq hasan not my victim. Discovering my deceit, you can admonish me, reminding me of the moral obligation I have violated. But, strictly speaking, resentment seems out of place. The moral landscape changes dramatically, however, if you are, say, my spouse or employer. Then, my lying about who I am and what I have done directly wrongs you.25 Enter now Rousseau’s state of nature. Here you are, planting some beans to feed your family on a modest plot of land you have appropriated from the common resources of the earth. By stealth of night, I uproot your beans in order to grow some luxurious melons.26 Let us assume that I have enough food to survive, having already tilled a small plot elsewhere. Rousseau’s view, I am suggesting, is that while I have violated a moral obligation, I have not directly wronged you. Given the moral concepts available in the state of nature, any protest on your part can only be understood as a kind of reminder of my own moral commitments: “Remember, when you acquired your plot of land you obligated yourself not to take more than your fair share!” I think this provides a plausible interpretation of Rousseau’s otherwise-enigmatic remark that in a moral world governed by the right of the first occupant, “one respects not so much what is another’s as what is not one’s own” (SC, I.9.2/OC 3, 365). His point, I propose, is that persons in the state of nature confront the resources of the earth as a pile of (useful) stuff. It is morally acceptable to take from the pile just so long as one does not take more than one needs. “Mine” means “my fair share.” This is very different from understanding the earth via the conceptual scheme private property, where “mine” is an inherently relational concept meaning “not yours.”27 The private-property relation requires the general will. Through the formation of a people, citizens create mutually binding obligations: “there is no associate over whom one does not acquire the same right that one grants him over oneself” (SC, I.6.8; OC 3, 361). Once the general will constructs property rights – and, as I suggested above (p. 145), such rights are not optional but mandatory – I now have a direct duty to you qua property holder not to take what is yours, and you can call on the coercive power of the state to enforce your right.

property and possession in rousseau’s social contract 153 Importantly, Rousseau’s understanding of property need not entail a minimalist state, devoted only to the protection of existing distributions of property. The Rousseauian case for redistribution stems from the fact that underpinning the concept of owner is the concept of citizen. Since the state constructs property rights in part to enable relations of freedom and equality among citizens, the state can intervene in the economic order when existing property distributions damage those very relations. The freedom-protecting state must act so as to ensure that “no citizen be rich enough to be able to buy another, and none so poor that he is compelled to sell himself” (SC, 2.11.2/OC 3, 391–2).28 The distinction between morality and rights, a distinction that I am claiming is necessary for making sense of the distinction between possession and property, is hardly on the surface of The Social Contract. But it seems to me implicit in the following passage: No doubt there is a universal justice emanated from reason alone; but in order to be admitted among us this justice has to be reciprocal. Considering things in human terms, the laws of justice are vain among men for want of natural sanction; they only benefit the wicked and harm the just when he observes them toward everyone while no one observes them toward him. Conventions and laws are therefore needed to unite rights with duties and to bring justice back to its object. In the state of nature, I owe nothing to those whom I have promised nothing. I recognize as another’s only what is of no use to myself. It is not so in the civil state where all rights are fixed by law. (SC, II.6.2; OC 3, 378; emphasis mine)

There is “universal justice” because there are moral obligations that are grounded in reason and do not in any way depend on one’s membership in the state. One might think here of general obligations to refrain from violence and harm, as well as, as I suggested above (p. 148), the obligation not to waste the earth’s resources. Flouting these obligations, while clearly wrong, does not directly wrong another. This is because “conventions and laws are . . . needed to

154 rafeeq hasan unite rights with duties.” In other words, if in the state of nature I violate a moral injunction, I mess up with respect to my own reason. Once the general will has instituted conventions and laws, however, I mess up with respect to other people. Rousseau is not suggesting that absent a state one could never make direct moral claims on others. The statement that “in the state of nature, I owe nothing to those whom I have promised nothing” obviously entails that I do in fact owe those whom I have directly promised. But once inside the community of the general will no such special obligation-creating acts are needed. Rather, everyone has rights against everyone else just in virtue of being citizens. You and I do not have to make a specific agreement for it to be true that you wrong me if you take what is mine without asking. In sum, The Social Contract holds that there are two distinct moral frameworks governing the relation between persons and things. With respect to possession, each person stands under a moral injunction not to take more than they need. This is the natural rights element of Rousseau’s theory. But this moral injunction does not give anyone a direct claim against others, and so possession falls short of property: binding, enforceable obligations on others to respect what is yours. People can only stand in such relations as citizens under the general will. This is the conventionalist element of Rousseau’s theory. What exactly is the relationship between these two frameworks? For example, once inside a legal order, does the fact that I badly need something entitle me to steal it from you? Material need concerns my relation to myself, whereas property, I have argued, concerns what I can demand of others. Are there bridging principles that allow us to connect the intrapersonal and the interpersonal elements of Rousseau’s theory of property? A fuller treatment must answer such questions. Only then can we determine if Rousseau’s reconciliation of natural law with conventionalism is fully coherent. At the very least, The Social Contract contains a fascinating attempt to do justice to the competing intuitions that property both depends on the state and is prior to it.

property and possession in rousseau’s social contract 155

notes For helpful comments and suggestions, I thank Marisa Bass, Frederick Neuhouser, David Lay Williams, and Rebecca Picciotto. 1. I cite Rousseau parenthetically in the text, using the following abbreviations: DOI: Discourse on the Origin and the Foundations of Inequality Among Men (1755), in The Discourses and Other Early Political Writings, 2nd ed., ed. Victor Gourevitch (Cambridge: Cambridge University Press, 2019), pp. 114–229; E: Emile, or On Education (1762); DPE: Discourse on Political Economy (1755), in The Discourses and Other Early Political Writings, 2nd ed., ed. Victor Gourevitch (Cambridge: Cambridge University Press, 2019), pp. 3–38; SC: Of the Social Contract (1762), in The Social Contract and Other Later Political Writings, 2nd ed., ed. Victor Gourevitch (Cambridge: Cambridge University Press, 2019), pp. 39–155; OC 3: Oeuvres complètes, ed. Bernard Gagnebin and Marcel Raymond, vol. 3 (Paris: Gallimard, Bibliothèque de la Pléiade, 1959–69). 2. SC, I.6.4 refers to Book I, chapter 6, paragraph 4. 3. “Du domaine réel.” Alternatively translated “Of Real Estate,” as in Rousseau 2012, p. 24. 4. For a statement of the core issues, see Stilz 2017. 5. The actual views of these thinkers are far more complicated than this schematic presentation suggests. Given limitations of space, I have (mostly) resisted the temptation to position Rousseau with respect to the broader tradition, instead treating his thought on its own terms. 6. Some commentators see Rousseau’s state of nature as containing “provisional” property claims; others of the civil state as “transforming rather than merely securing” natural property rights, or as “modif[ying]” Lockean principles of private ownership. See Bertram 2004, 90; Pierson 2013; Siroky and Sigwart 2014; and Dent 1992, 199. These formulations, while helpful, call for further philosophical elucidation. 7. For a contemporary defense of conventionalism, see Murphy and Nagel 2004. 8. I draw here on Stilz 2017, 245–6 and Scanlon 2018, 105–6. 9. The best explanation of how the general will reconciles freedom with authority is Neuhouser 1993. 10. This interpretation, while controversial, is convincingly established in Cohen 2010. See 82–3, 146–8.

156 rafeeq hasan 11. See Freeman 1990 and Althusser 2007, 125–34. 12. Here are two other disanalogies. (1) Ordinary contracts often take place against the background of inequality – for example, I sell my labor to the boss because I need them more than they needs me. But the social contract, Rousseau argues, should not be made from a position of antecedent bargaining advantage (e.g., DOI, 175–8/OC 3, 175–8). (2) Ordinary contracts involve limited terms of exchange. But the social contract involves the “total alienation of each associate with all of his rights to the whole community” (SC I.6.6/OC 3, 360). I touch on a third disanalogy just below. 13. For useful accounts of Rousseau’s conception of the general will, see Cohen 2010, chapter 2 and Sreenivasan 2000. 14. On public deliberation see, in addition to SC, I.5.2, quoted above, SC, I.7.2/OC 3, 361. On public assemblies see SC, III.12–15/OC 3, 425–31. 15. This paragraph draws on Ripstein 1992. 16. Rousseau would wholeheartedly concur with John Rawls that “justice must take seriously the distinction between persons” (Rawls 1971, 27). 17. The moral ambiguity of state foundation is precisely the topic of Rousseau’s chapter on the Lawgiver (SC, II.7/OC 3, 381–4). The Lawgiver instigates a just society by forms of persuasion that look suspiciously close to brainwashing. 18. For example, SC, II.4.1, III.4.1, III.6.1/OC 3, 372, 406, 408; DPE, 6/OC 3, 244. To complicate matters, Rousseau sometimes suggests that only states, not individuals, can wage war against one another. For example., SC, I.4.8–10/OC 3, 357 and the unpublished text “Principles of the Right of War” (circa 1758) in The Social Contract and Other Later Political Writings, pp. 166–80. This presents a major disanalogy between the two forms of moral personhood, which threatens to render (4) unsupported. See Bertram 2004, 67–9 for discussion. 19. As Rousseau writes shortly after the passage quoted above, “the combined and contiguous land holdings of individuals become the public territory” (SC, I.9.5; OC 3, 366). 20. See Bertram 2004, 93. 21. These readings are usually derived from Locke’s labor-mixing arguments. See Locke 1980, chapter 5, section 27. For a more sophisticated account of Locke’s property theory, see Simmons 1992, chapters 5–6. On Rousseau’s differences from Locke, see Bertram 2004, 91–2 and Teichgraeber 1981,

property and possession in rousseau’s social contract 157 125–7. The most significant of such differences is that when Rousseau discusses “labor and cultivation” he is not yet speaking about conclusive property rights – not “property,” merely its “sign.” 22. In Rousseau’s Emile, the Tutor uses a more atomistic, labor-mixing argument to explain the concept of property to the young Emile (e.g., E, 98). This suggests that Rousseau himself finds such a position to be naive, suitable for a child not yet aware of the full scope of human interdependence. 23. Public ends might include efficiency, civic equality, and social responsibility. All of these are suggested at some point in The Social Contract, as well as in Rousseau’s other political writings. 24. As suggested by, for example, Siroky and Sigwart 2014, 393–8. 25. For elaboration on this distinction, see Darwall 2009. 26. This example invokes the primal scene of property in Rousseau’s Emile, pp. 98–9. 27. My hunch is that for Rousseau these two moral frameworks – one for the satisfaction of needs; the other for recognizing the claims of others – correspond to the two basic forms of human self-regard central to his moral psychology: amour de soi-même, a concern for one’s basic material interests, and amour-propre, a concern for recognition or standing in the eyes of others (e.g., DOI, 224; OC 3, 219–20). In fact, Rousseau explicitly ties amour-propre to the concept of rights: “Once men had begun to appreciate one another and the idea of esteem had taken shape in their mind, everyone claimed a right to it” (DOI, 170; OC 3, 170; emphasis mine). On Rousseau’s moral psychology, see Dent 1988 and Neuhouser 2008. In subsequent work, Neuhouser briefly connects amour-propre to property (propriété) (2014, 100). 28. Economic inequality is hardly a downstream issue for Rousseau. The property chapter itself ends with the suggestion that, although the state must create legal property rights, formal legality without material redress is insufficient to secure genuine freedom: “the social state is advantageous to men only insofar as all have something and none of them has too much” (SC, I.9.8/OC 3, 367). For elaboration, see Neuhouser 2013.

8

Political Equality among Unequals Melissa Schwartzberg

Equality lies at the heart of Rousseau’s political theory. Yet at key moments, he nonetheless seems to argue that physical or natural inequalities are both inevitable and politically significant. So how political and moral equality may obtain despite the persistence of significant disparities is a central question not merely for Rousseau’s thought, but for egalitarian political theory more generally. Contemporary interpreters have usually sought to explain Rousseau’s defense of political equality by arguing that he minimizes the importance of natural differences.1 It would appear that there are good reasons to favor such an approach, since the claim that natural inequalities fail to constitute an important source of social inequalities is central to Part I of the Discourse on the Origin and Foundations of Inequality among Men (the Second Discourse).2 Yet attention to the opening and concluding passages of the Second Discourse complicates the matter. Rousseau characterizes natural or physical equality as those that consist in the “differences in age, health, strengths of Body, and qualities of Mind, or Soul” (SD, 131). Rousseau then ironically suggests that inquiring into whether there is a necessary connection between those attributes and political rule is a question that slaves may ask within earshot of their masters, but which “rational and free men who seek the truth” should not (SD, 131). His point is that, obviously, political rule does not always coincide with superior qualities. But in the final paragraph of the Second Discourse, he argues that moral inequality is contrary to natural right when it does not track natural differences; specifically, it is at odds with the law of nature that a child command an old man or that an “imbecile” lead a wise man (SD, 188). 158

political equality among unequals 159 If natural differences persist in the Social Contract – and there is ample textual support to suggest that they will, as we shall see – it might seem that moral and political equality is not, in fact, a necessary condition, and, perhaps, that political equality might even conflict with natural law. But since Rousseau insists that the freedom realized under the social compact depends upon moral and political equality, there would seem to be a tension in the Social Contract’s main line of argument. As such, even though Rousseau dismisses the problem out of hand, it is worth considering whether natural disparities will affect the distribution of political rights, and how to construe the relationship between political equality and natural inequalities, particularly in the capacity for political judgment. An earlier generation of scholars, including Maurice Cranston, Robert Dérathé, and Judith Shklar, took these questions seriously. For instance, Shklar concluded an essay on Rousseau and equality by calling him the “Homer of the losers” (Shklar 1978, 24). She argued that his own experience as a footman made him especially sensitive to the challenges of the poor, and, specifically, that his defense of equality rested on the sympathetic portrayal of their wretched condition. Throughout the essay, however, Shklar claimed that Rousseau accepted the “wholly artificial” nature of equality, because people’s talents – including their intellectual capacities – are obviously unequal (Shklar 1978, 16). In her view, political equality constitutes a means of rendering commensurable people of different merit, analogizing it to the role of money as a “neutral standard which allows us to compare widely different commodities for purposes of fair exchange.” Although “absolute equality” is unthinkable, we can use the law to form “fair judgments of civil worth.” Indeed, Shklar held that Rousseau took this to be “so obvious that he put it in a footnote” (Shklar 1978, 16). But did Rousseau believe that political equality would enable us to determine merit, or, rather, to bracket it? The footnote to which Shklar referred reflects the ancient distinction, which Rousseau traces to Isocrates, between “proportional” and “arithmetic” equality.

160 melissa schwartzberg He defends the proportional account of equality by which citizens may be distinguished in proportion to their merit, as measured by their service to the state; moreover, he thinks this service is appropriately a function of their “talents and forces.” So insofar as these talents and forces are unequally distributed, their bearers owe unequal duties of service to the state and ought to be rewarded proportionately. This, of course, is not political equality as we would understand it today; rather, it constitutes an Aristotelian account of political justice, in which the best flutes go to the best flute players.3 As we seek to ascertain how Rousseau justifies political equality in light of the apparent persistence of natural inequality, the crucial verb will be substituer – to substitute or exchange.4 Rousseau is explicit at the end of Book 1, arguing that the following claim should serve as the “basis of the entire social system; it is that 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” (SC I.9, 56, italics added). This logic of substitution, as we will see, also appears in the role of the Lawgiver, who feels himself capable of “substituting a partial and moral existence for the independent and physical existence we have all received from nature” (SC I.7, 69). Yet the means by which such substitution occurs remains opaque. By what mechanism can natural unequals become political equals, and does Rousseau deny that all people merit political equality? This chapter canvasses three possible relationships between natural inequalities and political equality in Social Contract, as such inequalities would seem to impinge upon capacities for political judgment. It is clear that Rousseau identifies a hierarchy between citizens and subjects. But then the question is how citizens, who vary in capacity, become equals. The first possibility is that they do so by education; natural disparities in competence are reduced through the

political equality among unequals 161 educative benefits conferred by life in the republic to the point that their differences become negligible. The second is by convention, in which the formal ascription of political rights by consent immediately and wholly replaces any physical and moral inequality obtaining among members. The third also rests on consent, but the mechanism is different – here, the act of consenting also commits citizens to treating each other as equals in ability to discern the general will, that is, with respect to their competence. Specifically, it requires citizens to refrain from peering too closely into each other’s capacities for judgment; optimally, their capacities remain wholly opaque to each other.5 This opacity mechanism draws on the account of a range property made familiar by John Rawls (Rawls 1999b, 441–5). Rawls uses the example of a unit circle, in which all points interior to that circle have the “range property” of being in that circle, although their coordinates vary within that range (Rawls 1999b, 444). For Rawls, persons who have the capacity for moral personality (a sense of justice and a conception of the good) possess the range property that entitles them to equality (Rawls 1999b, 442). We can discern in Rousseau’s thought a binary distinction between those with sufficient judgment for citizenship and those who must remain mere subjects (i.e., citizenship “supervenes” on the ability to discern the general will) and which then does not consider variation in judgment above the threshold for citizenship. That is, it assigns political equality to citizens while deliberately ignoring variation in capacity among them. The reason for such opacity, however, differs from other egalitarian interpretations of the social contract tradition that make use of range properties, notably by Jeremy Waldron (2017); it is not rooted in the requirements of respect or dignity as such. Rather, the need for opacity rests on the distinctively Rousseauian concern with amour-propre. Examining each other’s capacities is a recipe for the sort of misery that produced the need for the compact in the first place and ultimately spells the end of the republic.

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who is suited to citizenship? As will soon become apparent, the compact marks the pivotal moment in which the substitution occurs, transforming natural unequals into political equals. But it is important to note that not everyone is capable of being a party to the compact, because not every population, nor every person, can consent. Some are not parties to the contract because they have not consented to the terms; they are foreigners among Citizens, though if they remain in the territory, they consent to the laws (SC IV.2). But others are incapable of contracting entirely, meaning that they are relegated to the status of subjects. The ability to transform unequals into political equals by contract presupposes a population capable of forming a contract – the individual conditions of volition on formally equal terms. In this context, Rousseau invokes Montesquieu in support of the “truth” that freedom was not a “fruit of every Clime” (SC III.8, 100). By contrast, despotism is suited to warm countries. Although this discussion emerges in the context of the form of government, rather than sovereignty, Rousseau shortly thereafter distinguishes between tyranny (a type of government that is the degenerate form of kingship) and despotism (a type of sovereignty). This implies that insofar as despotism is suited to certain climes, certain populations are unsuited for sovereignty. Rousseau attributes this to the surplus of goods produced by the land; by contrast, Montesquieu had attributed it to the cowardice of the people, due to the enervating heat, which permitted them to be enslaved (Montesquieu 1989, 278). Rousseau too distinguishes between free peoples and barbarous peoples, implying that the latter cannot produce a republican state and are suited to despotism. So even the initial compact comes with a threshold requirement of “suitability” for freedom. This move requires a Lawgiver; as Christopher Kelly has written, it depends upon the ability to convert “an asocial multitude into the specific condition of citizenship” (Kelly 1987, 326).6 Rousseau argues that a Lawgiver is required to institute the people. As previously noted, the Lawgiver himself “substitut[es]

political equality among unequals 163 a partial and moral existence for the independent and physical existence we have all received from nature. In a word, he must take from man his own forces in order to give him forces which are foreign to him and of which he cannot make use without the help of others” (SC II.7, 69). Note that this act of substitution entails neither magistracy nor sovereignty: it gives the republic itself its constitution. The Lawgiver lays the foundation for the contract through his own wisdom and, if necessary, through divine appeals (II.8). But the Lawgiver needs first to determine whether the people are “fit to bear them. That is why Plato refused to give laws to the Arcadians and Cyrenians, since he knew that both peoples were rich and could not tolerate equality” (SC II.8, 72). Rousseau affirms that it is essential for the Lawgiver to find a community that is marked by the “simplicity of nature linked with the needs of society”: they are bound together by some yoke, but not yet by compact (SC II.10, 77–8). A Lawgiver seeking to build a republic must find a community marked by social and geographic conditions that could make them amenable to the egalitarian structure of a social contract, and then cultivate mores that would render them capable of meaningful consent to the compact and to the exercise of sovereignty. Moreover, as the discussion of the Lawgiver suggests, not every community is ripe for citizenship (SC II.9, 73). Peter the Great failed to see that the Russians lacked the “maturity for political order” and sought to make them Germans and Englishmen rather than Russians, thereby “preventing his subjects from ever becoming what they could be by persuading them that they are what they are not” (SC II.9, 73). The tacit education provided by the Lawgiver enables him, again, to “substitut[e] a partial and moral existence for the independent and physical existence we have all received from nature,” and it is this moral existence on which the ability to form a contract depends (SC II.7, 69). This moral transformation renders members capable of consenting on equal terms to the contract, transforming them from subjects into citizens. It may well be that some are naturally wiser or stronger than others, but the creation of the compact specifically

164 melissa schwartzberg requires the alienation of any fruits of these advantages. The equality of the compact is dual in nature: We each give ourselves entirely and so make ourselves equally subjected, and by virtue of the fact that we will be equally bound, we produce a contract that should equally benefit us. This condition of “total alienation” produces a contrast with the “specious contract” of the Second Discourse, in which the rich dupe the poor into an ostensibly egalitarian contract, enabling the rich to secure their resources through the creation of a supreme power (SD, 173). In that respect, this alienation may be precautionary, designed to prevent small disparities in capacity from generating substantial inequalities over time, particularly insofar as the compact creates the sovereign, the moral and collective body that assembles to legislate. We shall return to this shortly (p. 173 below). Where certain members’ deficiencies render them incapable of discerning the general will in the legislature, they cannot serve as citizens. Rousseau strips participatory rights from those who would not make the civil profession of faith and in fact moved to banish them, because one could not be “either a good Citizen or a loyal subject” without it (SD, 150). For this reason, he also excludes women from the rights of citizenship.7 This argument is clearest in the Emile, in which he denies that women ought to be trained to develop the ability to serve as citizens: men should be “active and strong,” and women should be “passive and weak” (E, 358). Rather, women should learn to serve as subjects. In part, this entails “a profound study of the mind of men – not an abstraction of the mind of man in general, but the minds of men around her, the minds of men to whom she is subjected by either law or opinion” (E, 387). Moreover, he insists that when a woman complains about “unjust man-made inequality, she is wrong. This inequality is not a human institution – or, at least, it is the work not of prejudice but of reason” (E, 361). She cannot share in the exercise of political rights, and the very effort to acquire such rights demeans her: “Wherever she makes use of her rights, she has the advantage. Wherever she wants to usurp ours, she

political equality among unequals 165 remains beneath us” (E, 364). Insofar as the subordinated party was naturally unequal to the dominant one and fell below the threshold of competence – child to elder, woman to man, or tutelary subjects to legislator – these inequalities among community members as a whole could remain compatible with political equality among citizens. The question remains, however, of how citizens come to be political equals.

education as the remedy One possible explanation is that the educative benefits of citizenship in a well-ordered republic will diminish, if not eradicate, natural inequalities among citizens. That is, even if we initially would seem to assign equal political rights to natural unequals, the practices of citizenship quickly erode these differences. There is support for such an assertion in Book 1, chapter 8, in which Rousseau sketches the transition from the state of nature to the civil state. Here, his account of the cultivation of reason and the development of the faculties more generally is that it “ennobles” him; he concedes that the “abuses of this new condition . . . often degrade him to beneath the condition he has left,” but broadly, the moral agency generated by the civil state is treated as a net benefit in the Social Contract (SC I.8, 53).8 This reveals little, however, about whether natural disparities persist. What, precisely, do citizens learn through their participation in the People’s assembly, or their political life in the assembly? This is a difficult question, and the truthful answer may be: not much. To be sure, the Lawgiver, the censor, and civil religion provide a moral education, shaping public opinion and behavior. But the political activity of the citizens itself is not likely to produce educative benefits, by design; “the right of voicing opinions, proposing, dividing, discussing” is restricted by the government to itself, rather than extended to the citizenry (SC IV.1, 122). The assembly is usually not a locus of robust deliberation; indeed, insofar as there are “long debates, dissensions, disturbances,” there is evidence that partial interests, rather than the common good, will prevail and that the

166 melissa schwartzberg State is in decline (SC IV.2, 123). Rather, in healthy states, the common good is readily apparent, requiring little effort to discern. It is difficult to hold that the experience of political agency under the social contract would obviate such inequalities. By contrast, it might be that the limited scope of decision-making would render irrelevant such inequalities. If the general will on a proposed question is luminous, as Rousseau often insists, one requires little in the way of judgment or discernment to identify it. But this line of argument – in which education cannot eradicate natural differences because political life does not enable learning – encounters certain difficulties. It would seem to minimize the significance of legislation as the fundamental act of sovereignty, as well as what would seem to provide the distinctive appeal of Rousseau’s republic. That is, if the reason why natural inequalities do not matter is because the people just do not do very much, the value of political rights themselves would be negligible. This claim is at odds with how Rousseau seeks to characterize the role of citizens, and his opposition to representation, in particular: “The better constituted the State, the more public business takes precedence over private business in the minds of citizens. . . . In a well-conducted city everyone flies to an assembly; under a bad Government no one likes to take a step to go to them; because no one takes an interest in what is done there, because it is predictable that the general will will not prevail in them, and finally because domestic concerns are all-absorbing” (SC III.15, 113). So one might expect that this experience of public engagement is educative. But we get little detail about what these roles would entail in Social Contract. One possibility is that childhood education does the work of instantiating equality among citizens. Indeed, Rousseau does defend a system of public education in the Discourse on Political Economy as a means of cultivating virtuous citizens, a system under public authority so comprehensive that it displaces paternal authority.9 He argues that if children “are raised in common in the midst of equality” and taught devotion to the laws and the maxims of the general will,

political equality among unequals 167 they will love each other as brothers and see the republic as their true “fatherland” (DPE, 21–2). Similarly, in Considerations on the Government of Poland, Rousseau argues that it is “education that must give souls the national form, and so direct their tastes and opinions that they will be patriotic by inclination, passion, and necessity” (Poland, 189). Yet there he defends a system of public education that only educates equally the rich and poor nobility: “Since all are equal by the constitution of the State, all ought to be educated together and in the same fashion” (Poland, 190). He further defends scholarships for children of the “poor gentry” as a reward for their fathers’ services to the State. So, in Poland, Rousseau does not defend universal public education, despite his exhortations about the importance of distinctive national educations and the crucial value of education in fomenting patriotism. Rather, the educational scheme is designed to accommodate the social order. In Emile, Rousseau argues that where such an order is fixed, education should accommodate a person to his position (E, 41); the poor man requires no formal education beyond that which is conferred upon him through his experience. Now, insofar as we might think that the more important form of education for citizenship is socialization into the mores of the republic, the absence of universal formal education as such might not mean that there are meaningful differences in the capacity of citizens to participate politically. But again, in Poland, Rousseau does argue that formal education is designed to promote knowledge about the community: when a child learns to read, he should read about Poland; the rest of his education is committed to the study of Poland’s products, geography, history, and laws (Poland, 189). In light of Political Economy and Poland, it would seem difficult to argue that formal education does not matter for Rousseau, and that natural capacity would suffice to ground political equality. Yet one might immediately object that both Political Economy and Poland are poor sources for the basic theoretical account, because of their notable departures from the claims in Social Contract;

168 melissa schwartzberg moreover, Rousseau in Social Contract characterizes “upright and simple” men as those who would not be deceived about the common welfare, waxing eloquent about peasants rendering decisions under oak trees “always acting wisely” (SC IV.1, 121). So should we think that formal education may in fact be distorting, because it introduces subtleties and mystifications into the process of discernment?10 This tension between the defense of formal education for citizenship on the one hand, and the claim that political judgment requires no sophistication on the other, poses a problem for the educative argument. Only in Political Economy does Rousseau seem to defend the value of formal, communal education as a means of establishing equality and inculcating virtue, implying that he deliberately rejected that strategy in the later works. As a result, it is not obvious that Rousseau held in Social Contract that either formal education or even tacit education through life in the well-ordered republic will eradicate natural inequalities. Rather, Rousseau seems to enable formal education to reproduce such hierarchies and holds that tacit education into the mores of the state may not suffice to support political equality, let alone to diminish natural inequalities.

formal, conventional substitution It is possible that at the moment of convention, those capable of consenting immediately “substitute” political equality for their own disparities. This would constitute a formal, conventional account, in which norms of equality replace existing inequalities. There is clearly support for such a claim in the text. The social pact establishes among the citizens an equality that all commit themselves under the same conditions and must all enjoy the same rights. Thus by the nature of the pact every act of sovereignty, that is to say 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. What, then, is, properly, an act of

political equality among unequals 169 sovereignty? It is not a convention of the superior with the inferior, but a convention of the body with each one of its members: A convention which is legitimate because it is based on the social contract, equitable because it is common to all, and secure because the public force and the supreme power are its guarantors. So long as subjects are subjected only to conventions such as these, they obey no one, but only their own will; and to ask how far the respective rights of Sovereign and Citizens extend is to ask how far the Citizens can commit themselves to one another, each to all, and all to each. (SC II.4, 62–3; italics added)

Rousseau argues that the creation of the social compact requires each of us to give ourselves, our power, and our goods to the community under the direction of the general will (I.6). The act of giving ourselves and our power to the community transforms us from natural unequals into moral and political equals, in the sense that each individual acquires a claim to equal political standing qua citizens absent beforehand. It would seem that the substitution comes directly from the authorization afforded by the social compact. But mere substitution underspecifies what the contract requires of its citizens in terms of the equalisandum. Notably, Rousseau does not demand the equal distribution of political, social, or economic power.11 Equality “must not be understood to mean that degrees of power and wealth should be absolutely the same, but that, as for power, it stop short of all violence and never be exercised except by virtue of rank and the laws, and that as for wealth, no citizen be so very rich that he can buy another, and none so poor that he is compelled to sell himself” (SC II.11, 78). Rousseau further argues that both rich and poor must be moderate in their claims and attitudes toward each other and in a footnote holds that the stability of the state depends on limiting economic inequality to eliminate extremes of wealth and poverty, rather than on the aim of economic equality as such; in Political Economy, he notes that such extremes corrode virtue and the common interest (SC II.11; DPE, 19). However, he

170 melissa schwartzberg does not even defend social or political equality as a requirement of the republic, or as a condition of ensuring that the laws are sufficiently general in their object.12 The law can create privileges and classes of citizens, as well as specifying the qualifications for admissions to these classes; generality of law merely precludes the identification of specific individuals who satisfy these conditions (SC II.6, 67). This passage’s implications are far-reaching. If there can be classes of citizens, then it seems very much worth asking if political equality is indeed a fundamental value of the Social Contract, and whether Rousseau even imagines a free community of equals after all. So let us restate the problem. Recall that at the end of the Second Discourse, Rousseau insists that only if they track natural inequalities can moral and political inequalities be legitimate. Logically, of course, this does not mean that if there are natural inequalities, there must be political inequalities. Yet Rousseau also is ambivalent about the scope and nature of political equality throughout his work, partly because of the persistence of natural inequalities. The compact remedies the fact that no man has “natural authority” over his fellow man (SC I.4) by establishing legitimate political authority, and it does so on egalitarian grounds at inception. It is surely true that equality is essential to the freedom realized by the compact (SC II.11, 78). Recall that the main problem solved by the social contract is how to design a form of association that affords individual protections while “each, uniting with all, nevertheless obey[s] only himself and remain[s] as free as before.” The solution depends upon equality insofar as unequal surrender of personal rights or property would leave some with greater resources than others, which they could use to design laws that might further entrench these advantages. This would merely reproduce the inegalitarian and dominating conditions that Rousseau characterizes in the Second Discourse and which give rise to the need for the social compact. But if the compact does not preclude consent to these forms of social and political inequalities, it is also unclear why it

political equality among unequals 171 does not preclude consent to the recognition of inequalities in judgment or competence. After all, if such capacity is necessary for citizens to identify the common good and to vote in accordance with the general will, one might worry about the reliability of the majority vote. Of course, Rousseau is concerned that the judgment of the people may not be enlightened and may require guides to “know what it wills” (SC II.6, 68). This claim is about the people as a collective (producing the need for a Lawgiver). But on the individual level, Rousseau also argues that the Lawgiver must transform each individual, again, “substituting a partial and moral existence for the independent and physical existence we have all received for nature” (SC II.7, 69, italics added). Insofar as Rousseau accepts that individuals may err with respect to the common interest (SC IV.2, 124), it also suggests that there may remain some variation in the population with respect to individual moral and epistemic reliability. The formal substitution account sheds little light on the extent or nature of this variation, or the point at which the propensity to err undermines the identification of the general will. It also cannot explain why those persistent inequalities should not bear on political equality. After all, Rousseau argues that “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” (SC III.5, 93). Admittedly, this passage appears in the discussion of the government rather than the sovereign, and because Rousseau is concerned that situating legislative power with the few rather than the many would advantage the former over the latter, he insists upon popular sovereignty. But it also relies upon some logic drawn from the Second Discourse, namely, that small natural inequalities can over time evolve into significant disparities, which themselves produce power asymmetries that allow the superior to secure their interests against those of the multitude. This would suggest that the substitution account might be precautionary or, in a Nietzschean vein, motivated by ressentiment: We substitute political equality for natural

172 melissa schwartzberg inequality just so that the strong do not prey on the weak. It is the inverse of the “specious contract” in the Second Discourse. But Rousseau declines to offer such an explanation, at least in this context, and since he strongly implies that natural inequalities should in fact be treated as morally irrelevant as a basis for the assignment of power under the contract, a stronger justification would seem warranted.

opacity and amour-propre As we have seen, the act of giving ourselves and our power to the community “substitutes” moral and political equality for natural equality, in the sense that each of us acquires a claim to equal political standing qua citizens that we lacked beforehand. As we have seen, though, there are persistent inequalities in the republic – social, economic, and moral. That is, the “substitution” of political equality for natural and physical inequalities may be incomplete; they may either not fully replace certain natural inequalities (of judgment) or may secure other “artificial” forms of inequality. So how are citizens in a well-ordered republic to regard each other as equals? Contemporary egalitarians have a response to this challenge, though both the scope (human equality) and the rationale (moral respect) differ from Rousseau’s. Drawing on Rawls, Ian Carter (2011) adopts the Rawlsian range-property strategy for moral personality (personhood), which supervenes on a number of agential capacities possessed unequally. Carter argues that “opacity respect” for persons (in possession of this range property) provides independent moral grounds for a commitment to treating persons as equals. In the public sphere, on his account, we relate to our fellow citizens simply as agents, respecting their “outward dignity” as bearers of political entitlements. On this account, we adopt evaluative abstinence – we avoid looking into the varying capacities to guide how we should treat people and instead look solely at the range property. In his Gifford Lectures, Jeremy Waldron (2017) develops this strategy for Hobbes and Kant, arguing that both implicitly relied on such a notion to

political equality among unequals 173 justify human equality – Hobbes on the property of mutual vulnerability, Kant on our moral capacities. Although it is doubtful that Rousseau had any implicit notion of a range property or opacity respect, there are nonetheless good reasons to believe that the threshold marking the difference between citizens and subjects rested on the capacity for political judgment, and that identifying variation in citizens’ capacities beyond that would dangerously court amour-propre. As previously noted (p. 164), the compact creates the sovereign, the moral and collective body consisting of “as many members as the assembly has voices.” It is, as such, egalitarian: citizens are equal participants in the sovereign legislative body. Yet we might still worry that the problem of natural inequality may reemerge as citizens cast their votes in accordance with the general will. There are familiar concerns about the problem of error in misidentifying the general will, though they are usually characterized in terms of the impossibility of disagreement and the coercive nature of the general will. The famous passage is as follows: 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; everyone states his opinion about this by casting his ballot, and the tally of the vote yields the declaration of the general will. Therefore when the opinion contrary to my own prevails, it proves nothing more than I made a mistake and that what I took to be the general will was not. If my particular opinion had prevailed, I would have done something other than what I had willed, and it is then that I would not have been free. (SC IV.2, 124)

This passage poses a distinctive problem if one assumes natural inequality among citizens. We might fear, for instance, that some citizens will be less reliable judges of what constitutes the general will: some may be more tempted by their particular interests, and some may be more likely to misidentify the common interest than others. Taken to their limit, Rousseau worries that citizens may fall

174 melissa schwartzberg into servitude, even while the general will remains “constant, inalterable, and pure.” The presence of inequalities in judgment, making some citizens more likely to err than others, would seem to be an object of concern. Here it is worth considering the conditions under which the activity of sovereignty – the creation of law in accordance with the general will – occurs. In the first place, it is rare. The State requires few laws, and “as it becomes necessary to promulgate new ones, this necessity is universally seen” (SC IV.1, 121). Second, legislation is also not supposed to be an intellectually demanding task; as seen in the discussion of education, neither expertise nor significant deliberation enables people to recognize the general will. There is no need for “intrigues or eloquence,” no persuasion, hence no likelihood of being wrongly swayed. Indeed, given Rousseau’s concerns about active deliberation in the assembly, we might think that it is through active political debate that amour-propre rears its destructive head: “Cromwell would have been condemned to hard labor by the people of Berne, and the Duc de Beaufort to reformatory by the Genevans” (SC IV.1, 121). Just as comparisons constitute a source of unhappiness in the state of nature, we might also expect that judgment of others’ public performances – their rhetorical skill, their political savvy – would itself be a source of unfreedom in the republic. Political rivalries or competitions over standing, particularly when they generate factions, impede the recognition of the general will; the question posed becomes whether it is “advantageous to this man or to this party that this or that opinion pass,” and although the general will itself remains “unalterable, constant, and pure,” particular wills nevertheless prevail. It is for this reason in part that deliberation is strictly limited in the assembly. Worries about the harmful effects of amour-propre also shape voting rules in the assembly. Given the centrality of autonomy for Rousseau’s account, one might have expected him to support unanimity in the assembly. But he instead replaced unanimity rule with

political equality among unequals 175 majority rule, in part because it generated the morally valuable action of recognizing one’s fallibility and the correct judgment of others (Schwartzberg 2008). The value of recognizing one’s errors as part of what it means to be “forced to be free” rests in part on the importance of moral and epistemic humility for republican citizens. But the duty to recognize error, as a check on amour-propre, also depends upon citizens’ confidence in the assembly’s likelihood to discern the general will. Majority rule itself requires a belief in the basic competence of citizens, that is, the assumption that each individual is more likely than not to vote in accordance with the general will.13 Even if citizens’ propensity to err (their individual probabilities of finding themselves in the minority) may vary, the voting rule is egalitarian by design. Specifically, within the assembly, citizens must stand in relation to each other as epistemic equals, each presumptively capable of identifying the general will. Any citizen may err, and, as a condition of autonomy, must find the moral fortitude to recognize it when he finds himself in the minority. If these conditions do not obtain – where “fear and flattery turn voting into acclamations” – the citizens have fallen into servitude, lacking both freedom and will (Williams 2014, 123). The threshold account of political equality thus explains how freedom and equality are related – because it is only under conditions of equality that we can rightly bind ourselves through the creation of law – and how citizens are to regard each other as colegislators. It also clarifies why efforts to identify variation in competence above the threshold are likely to produce unfreedom by generating amour-propre and undermining citizens’ willingness to obey laws with which they disagree. Insofar as natural disparities render members incapable of discerning the general will, they cannot serve as citizens but mere subjects. Among citizens, though, closely examining each other’s relative capacities for political judgment, and seeking to raise their esteem in other’s eyes through conspicuous acts of rhetoric or discernment, can only erode equality and freedom. This is why the convention ushers in a commitment to political

176 melissa schwartzberg equality, and to veiling those inequalities that might otherwise undermine the republic.

conclusion Rousseau has long inspired passionate responses. To be sure, many of these responses are negative, focusing on what seem to be the homogenizing and totalizing elements of his political thought and seizing on the apparent contradictions and hypocrisies in his work. Others, perhaps seeking to counter such arguments, have sought to minimize the less attractive features of his political thought to highlight its value for contemporary political theory. For instance, in the introduction to Rousseau: A Free Community of Equals, Joshua Cohen wrote that, although Rousseau believed the justification of the exclusion of women from politics rested on women’s nature, Cohen “assumed – assumed, but not argued – that it is possible to provide a reconstruction of important elements of Rousseau’s political philosophy while simply abstracting from his view that natural sexual differences are of decisive social significance” (Cohen 2010, 6). This may be true insofar as we aim to use Rousseauian thought as a model for an egalitarian community. Yet this chapter has argued that the reconstruction of Rousseau’s concept of political equality – perhaps the most central element of his political philosophy – cannot be fully understood without analyzing where Rousseau drew his limits, and so interpretation must take seriously his own failures of imagination, compassion, and respect. More crucially, attending to the ways in which Rousseau believed natural inequalities persist even in republics marked by robust political equality may lead us to adopt a critical lens on those inequalities that we still take to be natural, specifically including the subjection of those with intellectual disabilities. In this way, Rousseau can help us to reflect on the moral price that we pay for our own vision of political equality, inviting us to consider our own fallibility and the demands of humility.

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notes 1. See, notably, Frederick Neuhouser’s Rousseau’s Critique of Inequality, in which Neuhouser argues that natural inequalities “typically end up making very little difference in human affairs compared to the vastly greater effects of artificial inequalities” (Neuhouser 2014, 23). 2. References to Rousseau’s writings will be given as follows: SD = Discourse on the Origin of Inequality; SC = Social Contract; E =Emile; DPE = Discourse on Political Economy; Poland = Considerations on the Government of Poland; Narcissus = Preface to Narcissus. Editions used: (The Discourses and Other Early Political Writings, ed. Victor Gourevitch [Cambridge: Cambridge University Press, 1997]); (The Social Contract and Other Later Political Writings, ed. Victor Gourevitch [Cambridge: Cambridge University Press, 1997]); (Emile: Or, On Education, trans. Allan Bloom [New York: Basic Books, 1979]). 3. Note that this has sometimes led commentators to suggest that Rousseau in fact had an Aristotelian account of distributive justice, assigning political rights in accordance with merit; some commentators, like Maurizio Viroli (1988) and Paul Weirich (1992), thought that this entailed equal distribution, whereas others, like Arthur Melzer, argued that Rousseau in fact defended equality of rights only because it was the “realistic means” to create political authority for “selfish and irrational” men (Melzer 1990, 157). 4. For instance, “le pacte fondamental substitue au contraire une égalite morale et légitime a ce que la nature avoit pu mettre d’inégalité physique entre les hommes” (Rousseau 1964, 3:367). 5. The language of “opacity” derives from Ian Carter (2011), who argues that to treat people with respect requires us to look only at their outward features. The argument here is different, emphasizing the precautionary value of avoiding amour-propre, but the mechanics of the argument are similar. 6. See also Williams 2014, 91, and Williams 2007, 49, for comparison of Rousseau with Diderot on the necessity of a lawgiver. 7. In a forthcoming volume based on his Tanner Lectures, Active and Passive Citizens, Richard Tuck argues that Rousseau in fact defended women’s suffrage; in a commentary on those lectures included in that volume, I provide further evidence against this view (Tuck and Macedo 2024).

178 melissa schwartzberg 8. I use this language of “net benefit” advisedly, on the grounds that Rousseau then suggests that we “reduce this entire balance to terms easy to compare. What man loses by the social contract is his natural freedom and an unlimited right to everything that tempts him and he can reach; what he gains is civil freedom and property in everything he possesses” (SC I.8, 53–4). 9. In describing public education, he approvingly cites Crete, Sparta, and Persia, implying that he may in fact be specifically defending a system of communal education apart from families, not merely publicly provided education. 10. In Preface to Narcissus, Rousseau ridicules formal education as encouraging children to learn all the rules of grammar before they “hear any mention of man’s duties,” and that becoming cultivated in letters, philosophy, and fine arts is enfeebling, while the study of science is corrupting (Narcissus, 98–9). 11. Maurice Cranston observed similarly that in fact, Rousseau did not want to “banish inequality, but to have a rationally justifiable inequality,” in the political form of an elective aristocracy, and in cabining the degrees of wealth and poverty (Cranston 1984, 120–1). 12. Laws must be general in their source as well as their origin, the “doublegenerality” principle (Rousseau 1997b, 66–7). 13. See here the debate over the “Condorcetian” reading of the general will. In David Estlund’s words, “Rousseau conceived voters as giving their opinion on an independent matter of fact – the content of the general will – and held that the answer receiving the majority of votes under certain circumstances was guaranteed to be correct” (Estlund, Waldron, Grofman, and Feld 1989). See also Schwartzberg (2008).

9

On the Primacy of Peoplehood Nations and Nationalism in Rousseau’s Social Contract Richard Boyd

rousseau and nationhood “The father of modern nationalism was Rousseau,” historian E. H. Carr famously declared in 1945. Although this charge reverberates in the popular literature on nationalism to this day, it has received less careful attention from Rousseau scholars.1 Was Rousseau really the first major thinker to affirm the principle of nationhood? If so, does his novelty stem from his rejection of the sovereignty of one particular ruler or social class and identification of “nation” with the “people,” as Carr suggested, or with the “state,” as Yael Tamir and Yoram Hazony have concluded more recently?2 Or rather is it that Rousseau embraced the romantic “primitivism” associated with nineteenth-century cultural nationalism, as other critics have alleged?3 Even granting Rousseau’s affinities for nationalism, it is hardly self-evident that the Social Contract is the best place to turn for answers to these questions. After all, the Genevan’s “practical” works such as Considerations on the Government of Poland, Constitutional Project for Corsica, or Discourse on Political Economy offer more conspicuous discussions of patriotism and national character. By way of contrast, the Social Contract is often cited as a work of “ideal” philosophy, focused on normative visions of the best political community rather than the empirical, sociological contingencies of actual governments. The quasi-mystical, primordial ethnic nations that inhabit the discourse of nineteenth- and twentieth-century nationalism play no obvious role in Rousseau’s celebrated rendition of the 179

180 richard boyd social contract. Instead, following in the legalistic idiom of Thomas Hobbes or John Locke, solitary individuals leave the state of nature and voluntarily contract themselves into a government. This formal agreement is an artifact of individual reason or will that supersedes affective passions and visceral, prepolitical forms of solidarity. It should be no surprise, then, that recent interpreters have relied heavily on the Social Contract in efforts to distance Rousseau from nationalism.4 In what follows, I argue that this reading unduly discounts the crucial place of nationhood in Rousseau’s Social Contract. Rather than a formal contract to authorize a government struck between previously unaffiliated individuals, as per Hobbes, a closer look at the Social Contract reveals the decisive role of “peoples” in the genesis of the political community. This alternative perspective on the social contract sheds light, first and most importantly, on the constitutive role of nationalism in a world of sovereign nationstates, demonstrating that the freedom with which Rousseau is concerned is as much a matter of securing independence for nations as recreating the natural liberty of individuals. Second, at the conceptual level this chapter highlights Rousseau’s acknowledgment of the priority of peoplehood, that is to say, his revelation of the “first” or “prior convention” (convention antérieure) by which peoples come into being (SC I.5: 359).5 The emergence of peoples is historically and ontologically antecedent to the formation of “government” or the “State.” Third, despite all the rationalistic and voluntarist language characterizing the “social pact,” Rousseau is well aware that the genesis of most nations is unlikely to have been deliberately undertaken. Particular peoples are tacitly shaped by circumstances and historical contingencies. Finally, while describing this act of constituting a sovereign people in generic terms, Rousseau also demonstrates a keen appreciation of how peculiarities of history, language, culture, and religion serve to distinguish nations. These contingent features of cultural nations must be reckoned with by lawgivers who would institute governments as well as by contemporary theorists determined to locate Rousseau in the “civic” nationalist tradition.

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natural liberty or national independence? The Social Contract opens with one of Rousseau’s most resounding affirmations of human freedom: “Man is born free, and everywhere he is in chains. He who thinks himself the master of others is nonetheless more a slave than them. How did this change come about? I do not know. What can render it legitimate? I think I can answer this question” (SC I.1: 351). The singular language here (L’homme est né libre, et par-tout il est dans les fers . . .) gives the impression that the Social Contract’s primary unit of analysis is individual freedom, the generic freedom of one man or of all mankind. Yet immediately after these opening passages (“taking men as they are, and laws as they can be . . .”) the frame of reference changes in the second paragraph of 1.1. Rather than a universal attribute of all human beings, it now seems that liberty is invested in particular “peoples”: If I considered only force, and the effect that derives from it, I would say: so long as a People is compelled to obey and it does so, it does well; as soon as it can shake off the yoke and does shake it off, it does better still; for, recovering its liberty by the same right that it was stolen, either the people is justified in taking it back, or it was wrong in being deprived of it. But the social order is a sacred right, which serves as the basis for all the others. Yet this right does not come from nature; it is rather founded on conventions. It is a matter of knowing what these conventions are. Before getting to that I must establish what I have just set forth. (SC I.1: 351–2)

It has been rightly noted that Rousseau does not call for a return to a world where “man” is once again free in the original sense, emancipated from his chains; he seeks only to make this transformation “legitimate.” Yet, paradoxically, whereas the natural liberty of man is gone forever, the civil liberty of peoples appears worthy of being reclaimed. But what sort of liberty is this of which peoples have been dispossessed, and which they would do well to take back, and by whom has it been taken?

182 richard boyd Rousseau might just be describing the predicament of any erstwhile self-governing people who once enjoyed domestic liberty, what he calls a “republic” (SC I.6: 362). Liberty entails the sovereign right of the people, or masses, to vote or make laws. Their sovereignty has been alienated by force or fraud to a “chief” or “king” (SC I.2–4: 352–8). Subsequent paragraphs support the claim that the sovereignty of peoples so situated and ruled over by kings inheres always and unconditionally in the whole people. Whether it is advisable for them to reclaim it or not, their obedience is a matter of political prudence rather than “a rule of right” (SC II.1: 368–9; III.16–18: 435). Read in this way, Rousseau merely celebrates popular sovereignty vis à vis domestic tyranny, solid evidence of his “republicanism.”6 Yet curiously, Rousseau speaks here not only of “the people” but more specifically of “a People.” Does “people” refer to the common or popular element of a political community, in much the same way as fellow republican Machiavelli distinguishes the “people” from the “great”?7 Or does “people” in this instance mean something closer to “nation,” terms Rousseau uses more or less interchangeably elsewhere?8 In the Government of Poland, for example, he alternates between “people” and “nation” as if the two terms are synonymous: ancient Israel is at once une nation and un peuple libre distinct and separate from les peuples étrangers and des autres nations (Poland 956–7). If nothing else, this linguistic ambiguity suggests another way of reading this passage as consistent with a concern for national self-determination. Peoples qua nations would do well to reclaim their freedom whenever they have been deprived of their sovereignty by force. The Social Contract provides abundant examples of peoples robbed of their liberty by foreign as well as domestic forces. The trials and tribulations of Tartars, Tlaxcala, Holland, Switzerland, Israel, Rome, Corsica, and other nations illustrate how national sovereignty and collective self-determination are frequently hostage to the project of imperialism (SC I.4: 355–8; II.8–10: 384–91; III.13: 426–7; IV.8: 460–9; SW 604–6). The depredation of “a People” is not only

on the primacy of peoplehood 183 a matter of being subjected to tyrannical kings or oppressive governments. It is also the fate of “vanquished peoples” who relinquish their sovereignty to conquerors. Irrespective of regime types, foreign transgressors may be “a king, a private individual,” or even another “people” (SC I.4: 357). Likewise, a people’s ill-fated decision to hand themselves over to chiefs is predicated on the notion that strong leaders are required to avoid being “swallowed up” by other political communities (SW 603). For its bravery in recovering and defending its freedom, Corsica serves as an object lesson for all of Europe in this regard (SC II.10: 391). Rousseau’s exhortation for peoples to “shake off the yoke” and recover their liberty assumes a different meaning in this light. Affirmations of national self-determination are central to Rousseau’s critique of Grotius and others who seek to ground political obligation in force rather than right. “Force is a physical power,” Rousseau observes, “and I fail to see what morality can result from its effects.” Echoing his above-cited language about the domination of peoples, he affirms that “to yield to force is an act of necessity, not of will; at most it is an act of prudence. In what sense can it become a duty?” (SC I.3: 354). Conquered peoples are bound to obey by force alone and never by right (SC I.3: 354–5). Nor is consent a sufficient justification, for how could a whole people be imagined to have alienated once and for all their own freedom? An individual man who “gives himself gratuitously” would be considered incompetent and the act null and void; to envision an entire nation doing so is to “assume a people of madmen” (SC I.4: 356). Rousseau’s Second Discourse emphasizes the caustic moral effects on individuals from the formation of societies. Yet the process of civilization has profound consequences for the international order as well. Out of this same historical process of corruption we see the emergence of nations, warfare, and the division of the human race into distinctive peoples. Anticipating Joseph de Maistre’s famous quip about knowing only “Frenchmen, Italians, Russians, and so on,” Rousseau observes that “the philosopher looks for a man,” that is to say a human being, “and no longer finds one” (SW 603–4).9 Instead

184 richard boyd of resolving the vagaries of the state of nature, however, the ensuing dynamics of nationalistic rivalry only exacerbate its conflicts. Peoples expand at the expense of their neighbors as if by a “centrifugal force.” Personal vanity confronts natural bounds; the glory of nations is limited only by the possibilities of universal conquest and empire. Thus, nations grow indefinitely to the point where “one absorbs all the others” (SW 605). Not only does such an international order deprive its victims of their freedom, as discussed. It also gives rise to political communities on a scale and of such kind as Rousseau deems inconsistent with true freedom. Large multinational or multiethnic states are cumbersome to govern and dilute any love of fatherland.10 “The same laws cannot suit such a variety of different provinces with different morals, living in different climates, unable to tolerate the same form of government,” he warns. When “different peoples” try to live under the same government they come to regard their fellow citizens as “strangers,” and the perpetual confusion of a multitude of jurisdictions, migrations, and intermarriages leads them to neglect their patrimonies (SC II.9: 387–8). Out of respect for both the value of national self-determination and the distinctive virtues of republican political life, Rousseau’s political theory supports the core nationalist propositions that every nation should be sovereign and self-determining, and that sovereign nation-states should insofar as possible correspond to underlying national distinctions.11

peoples, contracts, and governments The observable fact that the world is populated by distinctive nations, on the one hand, and the normative claim that each potentially merits its own freedom, on the other, tell us little about the nature of peoplehood. What defines a group as a people? How do such peoples come into being? And what relationship, if any, does Rousseau’s understanding of peoplehood have to his celebrated rendition of the social contract? Rousseau’s social contract is commonly understood as a formal agreement undertaken by and among individuals. Its terms are captured in the classic formula: “To find a form of association that will

on the primacy of peoplehood 185 defend and protect the person and goods of each associate with the whole common force, and by which each, uniting with all, obeys only himself and remains just as free as before” (SC I.6: 360). Two important nuances are generally overlooked, however. The first is that what Rousseau is describing is literally a social contract. The social contract is not so much a contractual agreement to any particular form of government as it is a social union constituting individuals as a particular people. The second subtlety is that while a decision to enact a government consistent with the general will may be one of the first decisions of a newly constituted people, this political act of founding is secondary to and conceptually distinct from the originary “social pact” or “civil association” by which peoples come into being. This “primary” or “first convention” (une première convention) or “fundamental pact” is a “sacred right” at the heart of the social order that serves as the basis for all other successive political agreements (SC I.5: 359; Geneva 3: 289). While Rousseau sometimes conflates these two conventions, describing them as if they happen concurrently, “peoplehood” and “statehood” are two conceptually and temporally distinct stages, as we will see below. Chapters 6–8 (in Book I) feature the most explicit treatment of this “social pact,” and read in isolation it is tempting to imagine governments emerging more or less directly, simultaneously, and deliberately by the union of individuals formerly in a state of nature. Yet in the preceding chapter (SC I.5: 359), Rousseau cautions that before discussing government we must first attend to the creation of a people or “society.” Such a “prior convention” (convention antérieure) pertains not to government but to the invention of a “people” out of what would otherwise remain a mere “aggregation.” Rather than some random, disconnected “multitude” of individuals with nothing in common, the genesis of a “civil association” requires that individuals first be formed into a kind of social unity: A people, says Grotius, can give itself to a king. So that according to Grotius a people is thus a people before giving itself to a king. The

186 richard boyd gift itself is a civil act, it presupposes a public deliberation. Hence 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. For this act, being necessarily prior to the other, is the true foundation of society. (SC I.5: 359; my emphasis)

Before the people can choose a particular form of government – whether a king or republican constitution – they must first undertake a “social pact” or “social compact,” an antecedent agreement that constitutes “the true foundation of society.” Rousseau is explicit here that these are two distinct acts, and that the formation of a people is “necessarily prior to the other.” The move from what he calls a “multitude” to “society,” from mere “aggregation” to “association,” brings with it several important effects. The first is sociological and involves the creation of social bonds that precede and outlast whatever government the group ultimately adopts. Unless such a society is well formed, Rousseau cautions, the collapse of government leads inexorably to the dissolution of the people, “scattered and without a bond, like an oak dissolves and collapses into a pile of ashes after being consumed by flames” (SC I.5: 359). The second aspect of this process is to delineate a moral and juridical distinction between members and nonmembers. Without a “prior convention” establishing the boundaries of a particular group of people, distinguishing fellow associates from nonassociates, there will be neither criteria of eligibility (and ineligibility) in the democratic process nor, more importantly, any obligation to defer to the decisions of the majority (SC I.5: 359; compare IV.2: 440). Finally, this is presumably also the moment when a moral partiality for fellow citizens over foreigners or distant strangers comes into being at the expense of a “sentiment of humanity” (DPE 254–61). All of this, it should be emphasized, occurs before any determination about a formal constitution. What emerges from this “union” or “association” is a “moral and collective body,” one invested

on the primacy of peoplehood 187 by this initial act with “its unity, its common self, its life and its will” (SC I.6: 361). Along the lines envisioned by Hobbes, we get a “public person,” formerly known in ancient times as a “City” but now referred to as a “Republic” or “body politic, which its members call State when it is passive, Sovereign when active, [and] Power when comparing it to similar bodies” (SC I.6: 361–2). “As for the associates,” Rousseau specifies, “they collectively assume the name people and call themselves individually Citizens as participants in the sovereign authority, and Subjects as those who submit to the laws of the State” (SC I.6: 362). Rousseau’s terminology is confusing, as he admits. Yet the process boils down to the following: the act of civil association gives rise to a people who have by virtue of this act surrendered their force and will to the creation of a new moral and collective body. This “body politic” is sovereign in that it now enjoys the collective ability to direct itself. The quality of sovereignty inheres, at least ideally, in the whole people. Rousseau has offered a generic account of the creation of popular sovereignty. What remains to be determined, however, is the political instantiation of this sovereign body and the relationship between the people in their private capacity and the laws of the particular State under which they come to live. “By the social pact we have given the body politic existence and life,” he distinguishes, yet “the initial act by which this body assumes form and unity still leaves entirely undetermined what it must do to preserve itself.” That is to say, what motion or direction it will take from legislation is not inherent in the “initial act.” Elsewhere he remarks that whereas “the body politic gets unity and a common self from the social pact,” it is from its “government and its laws” that its “constitution is more or less sturdy” (SW in Rousseau 1997, 170). And later in the Social Contract he affirms: “the act which institutes the Government is not a contract but a Law” (SC III.18: 434). Conceptually, if not temporally, the “body politic” must be distinguished from its “government and its laws.”

188 richard boyd

organicism versus contractualism The social contract, we have seen, is the first act by which a sovereign people comes into being. But what sort of contract is this, and how specifically does it take place? The legalistic terminology of SC I.5–6 seems to imply that civil association is an explicit, formal contract to which all members subscribe at the moment when a people is formed. The social contract is an “act,” “pact,” “treaty,” “social compact,” “association,” and so on. While it is easy to imagine a legal association such as a state or government resulting from a contract, it is hardly intuitive that “peoples” are born this way. Are Poles or Corsicans to be reckoned as such by dint of some formal agreement? Does nationality emerge from a plebiscite? If so, when (if ever) did this compact take place? At minimum, there is an apparent tension between Rousseau’s characterization of a social contract and the more organic notions of peoplehood prevalent in the discourse of nationalism. Before returning to the Social Contract, Rousseau’s fragment “The State of War” offers one hint for reconciling his philosophical treatment of civil association with the historical origins of particular nations. Discussing conflicts as endemic to an international system, Rousseau wonders how his stylized account of the emergence of political communities can be squared with the evidence of history: “To this,” he avers, “I would be content enough answering with the facts, and I would have nothing to fear by way of rebuttal, but I have not forgotten that I am reasoning here about the nature of things and not about events that could have a thousand particular causes independent of the common principle” (SW 604). The Social Contract seems to be predicated on this same distinction. Hypothesizing the genesis of society by a social contract is a matter of identifying the “common principle” of civil association to be found in the “nature of things” irrespective of the “thousand particular causes” that have historically given rise to specific peoples. While the “clauses” that set the terms of this agreement are “everywhere the same” and “so completely determined by the nature of the

on the primacy of peoplehood 189 act that the slightest modification would render them null and void,” Rousseau concedes that “having perhaps never been formally stated,” they are only “tacitly admitted and recognized.” In fact, the terms of the contract are so deeply taken for granted that they come into view only upon their violation, once the social contract collapses into anarchy (SC I.6: 360; my emphasis). Thus, the decision to become a people rarely proves to have been “voluntary” in the sense of being self-consciously undertaken. The tacit causes of any particular social contract point to another ambiguity: namely, the asynchronicity of the agreement, for lack of a better term. Unlike Hobbes, for whom the social contract marks an absolute binary, a stark choice between life in the state of nature or commonwealth, Rousseau follows Locke in distinguishing between the original formation of a “society” or “civil association” and the subsequent choice of “government” by the sovereign people.12 While Rousseau’s presentation sometimes makes it seem as if these two contracts are coterminous, they are often undertaken at different historical junctures. The Social Contract abounds with examples of the historicity and severability of these two agreements. Peoples need to be “young,” but not too young, to be fitted with laws; one must await their “time of maturity” before attempting to institute a people (SC II.8: 385–6). Acting either too soon or too late dooms the political project. Some nations such as Peter the Great’s Russia suffer the misfortune of being politically organized too early and are ruined forever. Others develop incorrigible customs and prejudices in their old age. Only rare nations such as Corsica find themselves in the ideal position of having existed sufficiently long as a people while remaining free from corruption (SC II.10: 391). Thus, when speaking of political communities specifically rather than generically, the genesis of peoplehood proves to be not just conceptually but also temporally distinct from the institution of a government. Peoples emerge and evolve historically; governments are formally created at a single point in time.13

190 richard boyd There is one other noteworthy passage in SC IV.2 whose contractarian language appears to problematize the historical conception of peoplehood: The civil association is the most voluntary act in the world; every man being born free and master of himself, no one may on any pretext whatsoever subject him without his consent . . . If, then, at the time of the social pact there are some who oppose it, their opposition does not invalidate the contract, it only keeps them from being included in it; they are foreigners among the Citizens. Once the state is instituted, consent consists in residence; to dwell in the territory is to submit to the sovereignty. (SC IV.2: 440)

Characterizing the civil union as “the most voluntary act in the world,” and suggesting that the “social pact” took place at a specific time, Rousseau here seems to imply that the social contract is a matter of express consent. By this logic, the Poles, Russians, or Corsicans emerged by a sort of referendum, with any dissenters cast out. Yet to speak of an act as “voluntary” does not necessarily mean that “consent” is explicit or affirmative.14 Axiomatically, as Rousseau explains here, the original association would include only those who decided to go along with the social pact. Conversely, those who chose for whatever reason not to join would be excluded from membership. Any such association is ipso facto “voluntary” insofar as it includes those – and only those – who elected to participate or at least did not decide to oppose the union. Presumably the condition of being “voluntary” is satisfied so long as no one is made “subject . . . without his consent.” “Voluntary” only means noncoerced. If this is right, then consent to civil association ends up being what Locke calls “tacit,” which is perfectly consistent with Rousseau’s acknowledgment of this likelihood in SC I.6 discussed above (p. 189).15 Moreover, this quote confirms the aforesaid conceptual and temporal distinction between peoplehood and statehood in a second way. According to this formulation, social membership – the distinction between “Citizens” and “foreigners” – is antecedent to the

on the primacy of peoplehood 191 institution of the State. Their “opposition” to the social contract “keeps them from being included in it; they are foreigners among the Citizens.” Political obligation may subsequently be a matter of the will of the majority, but citizenship, or the right to participate in this majoritarian process, is a matter of acquiescence to this prepolitical or “primitive contract” (ce contract primitif) (SC IV.2: 440). This is to say that the line of demarcation between “Citizen” and “foreigner” harks back to some previous association among persons that establishes juridical, if not yet territorial, borders between members and nonmembers (compare SC I.9: 366–7). As Rousseau explains, this is different from the kind of consent that obtains after the people has determined a government. “Once the state is instituted,” it is enough merely “to dwell in the territory,” even for noncitizens who are nonetheless subject to its laws (SC IV.2: 440). We should note Rousseau’s subtle elision between the terms of civic membership (dictated by one’s acquiescence to the initial civil association) and matters of political obligation (due submission to a territorial sovereign). Following in Locke’s footsteps, Rousseau amends his conception of political membership to account for why subsequent generations should be included in the political community and considered bound by its laws. While some form of consent (or the absence of nonconsent) sets the parameters of membership for the original people, this obviously cannot be a “voluntary act” for subsequent generations. In the majority of cases, then, territoriality and residence serve as proxies for consent. To stipulate that “consent consists in residence,” and that this is satisfied by the decision to “dwell in the territory,” is an echo of Locke’s famous appeal to “tacit consent,” where “barely travelling freely on the highway” is a sufficient indication of one’s obedience to the laws.16 Still, there is a major conceptual difference between the two thinkers. In Locke’s theory, the “very being of any one within the Territories of that Government” obliges one to obey the law, but it “makes not a Man a Member of that Society.”17 For Locke, membership requires an “express Declaration” or “positive Engagement, and

192 richard boyd express Promise and Compact.”18 Rousseau’s blurring of Locke’s clear-cut distinction between juridical membership and territorialized political obligation may arise from their different conceptions of citizenship. For Locke, members are first and foremost subjects; membership is commensurate with a pledge to obey. For Rousseau, paradoxically, mere obedience to the law ends up being both more and less significant for citizenship than for Locke. On the one hand, mere residence on the territory and obedience to the law are sufficient conditions for citizenship. All law-abiding residents are at least presumptive citizens. On the other hand, however, insofar as obedience is constitutive of political membership, Rousseau regards lawbreaking as not just a criminal act meriting punishment, but an act of rebellion rendering the lawbreaker liable to denationalization: Besides, every malefactor who attacks social right becomes for his breaches [forfaits] a rebel and a traitor to the fatherland; he ceases to be a member of it by violating its laws, and even becomes at war with it. Then the preservation of the State is incompatible with his own, one of the two has to perish, and when the guilty man is put to death, it is less as a Citizen than as an enemy. The trial, the judgment are the proofs and declaration that he has broken the social treaty, and consequently is no longer a member of the State. Now, since he recognized himself as one, at the very least by his residence there, he must be cut off from it either by exile as a breaker of the pact, or by death as a public enemy. (SC II.5: 376–7)

Several striking points come through this discussion. First, the violation of particular laws is tantamount to a repudiation of the “social treaty” itself. A single criminal act establishes the transgressor not only as a nonmember of the civil association but as its avowed enemy. Second, there is the assumption that residency should be taken as a sufficient declaration of something akin to citizenship. The mere fact of residing on a territory serves as a rough indication that one considers one’s self a member, although Rousseau’s ambiguous formulation leaves open the possibility of greater requirements on

on the primacy of peoplehood 193 the part of the denizen (“at the very least by his residence”) and reciprocal acknowledgment from the community (cf. “he recognized himself as one”) for full-fledged citizenship. Equating respect for the laws with sociability, as Rousseau does elsewhere, it is no surprise that violation of the former should be met with expulsion from the civil relationship (SC IV.8: 468).

national distinctions and the art of founding Having examined the nature of peoplehood, we must now consider its relationship to government. Rousseau’s keen sense of how regimes need to suit the circumstances of particular peoples is often overlooked. There is no single “best” form of government per se. Although this “conservative” dimension of Rousseau’s political sociology has been noted by readers of other works such as the Government of Poland, his Social Contract is often dismissed as dangerously radical or utopian for ignoring political contingencies. Rather than offering up a procrustean ideal of republican government to which every people must aspire, however, Rousseau acknowledges that his ideal form outlined in the Social Contract may not be appropriate for all, or even any, existing peoples. This qualification is not so much a matter of ideal versus nonideal political theory as a testament to the significance of national distinctiveness. “Liberty, not being a fruit of all Climates, is not within the reach of every people,” Rousseau provocatively asserts (SC III.8: 414). Putting aside his controversial skepticism about the universality of popular government, several underlying assumptions are relevant. The first is that while natural freedom and independence may be universal attributes of all individuals in a state of nature, the civil freedom of which Rousseau speaks here is an achievement of particular peoples. Freedom is unique and contingent. Whether the potential for freedom is reducible to objective matters of climate, as in Montesquieu, or other factors such as circumstances and mores, as in Tocqueville, it must be understood as particular rather than universal, much like Rousseau’s account of the general will upon which

194 richard boyd it is predicated.19 Unique historical circumstances render some peoples amenable to self-rule, while others are too corrupted by commerce or have suffered too long under the yoke of kings (SC II.8–11: 384–93). “What people is thus fit for legislation?” he wonders. Structural factors such as size, geopolitical circumstances, and level of economic development are decisive. Yet the most essential variables are sociocultural: the ideal nation is one that “finds itself already bound together by some union of origin, interest or convention” (SC II.10: 390). These factors are conceptually and historically prepolitical, insofar as the ideal candidate for nationhood is a people that has “not yet borne the true yoke of laws,” one that remains insofar as possible inchoate and malleable, “with neither deep-rooted customs nor deep-rooted superstitions” (SC II.10: 390). Beyond emphasizing to would-be lawgivers just how rare are these auspicious conditions, the technical problem is generalizable. The task of fitting government to a people must begin by reckoning with its particular circumstances: Just as an architect, before putting up a great edifice, observes and tests the soil in order to determine whether it can bear the weight, so the wise institutor does not begin by drawing up laws good in themselves, but he first examines whether the people for whom he intends them is fit to support them. (SC II.8: 384–5)

This is the challenge of so-called “fathers of nations,” Rousseau’s mythical “Lawgivers” tasked with rendering extant peoples “subject to the laws of the State.” Theirs is a superhuman exercise, for “to discover the best rules of society suited to each Nation would require a superior intelligence.” Lawgivers have to combine introspection, objectivity, and a profound knowledge of both human nature in general and a nation’s history in particular. As we see, these national distinctions are largely products of history. Peoples are malleable in youth. Yet like individuals who are shaped by life experiences, so too “Peoples . . . grow incorrigible with

on the primacy of peoplehood 195 age.” “Once customs are established and prejudices rooted, it is a dangerous and futile enterprise to try to reform them,” Rousseau cautions (SC II.8: 385). Not just a nation’s level of civilizational development but especially its “memory of the past,” its revolutions, conquests and struggles, shape future political possibilities. The task of legislation, then, is not so much about constructing a system of government de novo but of reckoning with the legacy of history. Political science begins by acknowledging path-dependency: “What makes the work of legislation painful is not so much what must be established as what has to be destroyed” (SC II.10: 391). Rousseau’s appreciation of national distinctiveness as a matter of historical contingency rather than, say, biology has led some to deny that nations exist in anything but a fictive sense. For example, Judith Shklar questions whether there is any such thing as “national character,” “collective personality” or a “national soul” apart from the Legislator’s “artificial imposition from above.” Peoples are invented from scratch by Lawgivers at their moment of political conception. Just as “Moses created the Jews,” nationhood is superimposed by the Lawgiver on otherwise disparate multitudes.20 As should be clear by now, there are good reasons to doubt Shklar’s categorical denial of the primacy of peoplehood. In addition to ignoring the conceptual and temporal distinction between the social contract that forms a people and the act of instituting a government, her citation of Rousseau’s own example of the people of Israel from Government of Poland (Poland 956–7) may be an exception that proves the more general rule. That is, the fact that some peoples have allegedly been “created” de novo does not disprove the reality that most peoples are products of what Shklar calls “historical accretion.” As Rousseau confirms, the ideal people fit for legislation is one which “finds itself already bound together by some union of origin, interest, or convention” (SC II.10: 390; my emphasis).21 Shklar’s invocation of Peter the Great as inventor of nations likewise cuts in the opposite direction she intends, further amplifying Rousseau’s point about the necessity of taking peoples as given.

196 richard boyd Rousseau faults Peter not so much for imposing cosmopolitan uniformity on the Russian people, but for ignoring their incipient cultural particularities: “He wanted from the first to make Germans, Englishmen, whereas he should have begun by making Russians; he prevented his subjects from ever becoming what they could be by persuading them that they are what they are not” (SC II.8: 386). Unless the Russian people were endowed with a unique cultural identity before Peter’s botched efforts at legislation, it is unclear why his project failed, or why Rousseau faults him. Presumably Russians had to be something already in order for Peter to make them “what they are not.” If Russia and every other people are infinitely malleable, as Shklar implies, then the possibilities of founding are limited only by Lawgiver’s imaginative capacities.22 This is not to say that the Lawgiver’s project cannot be transformative. Peoples can be invented under certain circumstances, and nationalist appeals to “tradition” often involve a certain amount of “invention,” that is to say, novel fabrication.23 We see illustrations of the so-called “invention of tradition” not only in the Government of Poland but also in the Social Contract. Rousseau likens the task of a Lawgiver who “ventures to institute a people” (ose entreprendre d’instituer un people) as one of “invention,” if not fundamental transformation (SC II.7: 381).24 The verb instituer hints at an ambiguity: rather than inventors, so-called “founders” of nations are akin to teachers who establish an educational base by molding human nature and annealing a people’s unique character. They do so most successfully, in Rousseau’s estimation, by means of novel legends, rituals, prophesies, and even the fabrication of gods whose mouthpieces they purport to be (SC II.7: 383–4). The relationship between Lawgivers and national character is necessarily dialectical, as Anne M. Cohler notes: “Rousseau advocates building on a pre-existing group, the nation, but he does not pretend that the political order to be formed on the nation will leave it the same as before.” The act of political founding “alters the nation irrevocably.” In this regard Rousseau shares with subsequent nationalist thinkers the assumption “that political orders ought

on the primacy of peoplehood 197 to be built on nations,” even if, as nationalists are loath to admit, the nations that result from this sometimes differ radically from the raw materials with which they began.25 In sum, not only does Rousseau have a clear sense of the cultural distinctiveness of nations, but he also shares the underlying assumptions of so many nineteenth-century nationalist thinkers: namely, each nation has its own distinctive genius, and the imminent task of political development is for all nations to perfect themselves in the manner most consistent with their singularity. Paraphrasing Rousseau, nations are effectively supposed to “become what they can be.”26

patriotism, nationalism, and civil religion We have established that the Social Contract is predicated on the existence of prepolitical associations or “peoples”; that every people should ideally be outfitted with a government suited to its unique cultural and historical circumstances; and that this political project culminates in an international system populated by a multitude of nation-states. Still, the larger question for Rousseau’s political theory is not so much whether he thinks that nations ought to exist, but exactly how they should be politically constituted. Few readers of the Social Contract doubt that citizens are supposed to be patriotic and love their country. Even so, the extent of their civic identification and ultimate grounds for their sense of obligation are less clear. In the language of contemporary scholars of nationalism, does Rousseau champion a purely “civic” conception of the nation whereby citizens obey laws out of a rational, disinterested sense of “constitutional patriotism” or “love of country”?27 Or are citizens motivated to love the fatherland by deeply affective, even primordial attachments to language, territory, religion, shared blood, or ethnic ancestry? Critics of Rousseau’s alleged “ethnonationalism” have gravitated for evidence to his later, practical texts such as Government of Poland or Constitutional Project for Corsica. By way of contrast, defenders of the “civic” Rousseau have focused on the Social

198 richard boyd Contract.28 Upon closer examination, however, the Social Contract is hardly a clear-cut endorsement of the purely “civic” conception of the nation. For even here we find evidence that Rousseau thinks the reasons why citizens actually do obey – as opposed to what provides a moral justification for this obedience – are factors that go well beyond strictly rational attachment to a nation’s civic institutions. Maybe the most apposite part of the Social Contract is Rousseau’s discussion of a civil religion. Religion is first and foremost among factors that distinguish peoples from one another and set them at odds in a world of sovereign nations. Religions serve both to unify as well as to divide, and they endow their distinctions with supernatural force. Even nominally cosmopolitan world religions such as Christianity coexist with particular national churches and patron saints. This assessment seems uncontroversial, and Rousseau can hardly be held responsible for validating the evidence of history. Yet beyond the descriptive reality that religion is frequently a source of both allegiance within and conflicts between political communities, what role does Rousseau himself envision for religion in defining political communities? SC IV.8 offers an extensive historical and normative account of religion’s civic status, or what some have called the “theologicalpolitical” problem. Rousseau identifies three broad ways religion has heretofore been configured within the political community. The most prominent of these corresponds to the existing state of affairs in Rousseau’s Europe, that is, a species of Christianity mediated by the Roman Catholic Church. This “bizarre” arrangement divorces religious belief from citizenship. Men have two sets of laws, two leaders, and two homelands, which in Rousseau’s view is the worst of all possible worlds. This “mixed and unsociable” system is pernicious from both the vantage of religion and the political community insofar as it “destroys social unity” and introduces paralyzing dividedness (SC IV.8: 464–5). The second possibility is a “Religion of the Citizen.” Rousseau identifies many redeeming qualities stemming from the formal

on the primacy of peoplehood 199 unification of church and state. This arrangement “is good in that it reconciles the divine cult with love of the laws, and in making the fatherland the object of the Citizens’ worship it teaches them that to serve the State is to serve its tutelary God” (SC IV.8: 464–5). This civic form of religion resembles the paganism of the earliest ages; religion was a cult of the city, and its gods were those of the city alone. Matters of dogma, rites, and worship were commanded by law and “outside the sole Nation which adheres to it, everything else was deemed to be infidel, alien, barbarous” (SC IV.8: 464). The third permutation is the so-called “Religion of man,” a cosmopolitan species of Christianity whereby citizens neglect the well-being of their earthly communities and concern themselves only with their extraterrestrial existence. Such a “people of true Christians” is in Rousseau’s view no people at all, insofar as they are concerned only with the ultimate fatherland in heaven. Far from “attaching the Citizens’ hearts to the State,” this configuration only serves to divide them and make them indifferent. Contrary to the views of apologists, Christians necessarily make poor citizens: “If the State prospers, he hardly dares to enjoy the public felicity, he fears taking pride in his country’s glory; if the State declines, he blesses the hand of God that weighs down his people” (SC IV.8: 465–7). While this kind of “general society” may have something to be said for it from the universal moral vantage of all humanity, it appears to Rousseau both unworkable and civically undesirable (Geneva 1.2: 282–9). Beyond Rousseau’s deft dissection of the political ramifications of these three institutional arrangements, and his own novel alternative of a genuinely “civil religion” rooted in sociability alone, what does the Social Contract’s discussion of religion tell us about his more general theory of nationalism? How can the advantages and disadvantages of these various configurations illuminate Rousseau’s understanding of the motivational and formal dimensions of patriotism? Several lessons seem to emerge from this discussion. Most importantly, Rousseau clearly thinks that citizens need something beyond the laws themselves to inspire allegiance to the

200 richard boyd fatherland. Formal institutions are necessary but insufficient for fostering a reliable sense of political obligation. On the affirmative side, Rousseau commends the “theocratic” alternative for sacralizing political obligation, prompting citizens to worship the fatherland with the same religious veneration otherwise reserved for theological institutions. In Rousseau’s admittedly hyperbolic language, this makes a surrogate god of the state. As he notes with admiration, “Then to die for one’s country is to be a martyr, to violate the laws is to be a sinner, and to subject the guilty to public execration is to deliver them to the wrath of the Gods, sacer estod” (SC IV.8: 464–5). Conversely, faulting the civic shortcomings of the cosmopolitan religion of man, he notes that this version “having no particular relation to the body politic, leaves to the laws only the force they derive from themselves without adding any other force to them, and hence one of the great bonds of particular societies remains ineffectual” (SC IV.8: 465; my emphasis). This may be one of Rousseau’s clearest statements to the fact that political obligation and respect for the constitution require more than just formal adherence to laws. Mere “constitutional patriotism” motivated by reason and reason alone is hardly a substitute for religion, “one of the great bonds of particular societies.” We may look to Rousseau’s novel alternative of a purely civil religion for further confirmation. As is well known, the Social Contract propounds a controversial alternative to these three models: namely, a “purely civil profession of faith” established by the sovereign in the name of fostering sociability and love of the laws (SC IV.8: 468). Predicated on the impossibility (though perhaps not undesirability) of “an exclusive national Religion,” Rousseau’s civil profession aims to inculcate as “dogmas” a few basic tenets such as tolerance and the absolute “sanctity of the Social contract and the Laws” (SC IV.8: 468–9). Its significance for our purposes is twofold. First, this civil profession, while ultimately reducible to the principle of sociability and largely agnostic about the theological beliefs of its adherents, must nonetheless be inculcated as dogma, that is to say, as a matter of unquestioned faith and loyalty. Second, and closely related, while

on the primacy of peoplehood 201 Rousseau’s civil religion is predicated on the likelihood of religious pluralism within a political community, it positions itself as a source of political homogeneity and social cohesion in the absence of theological conformity. Where a common religion exists, it can be used to unify; where it does not, theological differences must be neutralized, intolerance punished, and an alternative source of social cohesion devised.

conclusion Many questions remain about the precise nature of Rousseau’s embrace of nationalism. These pertain both to the psychological motivations for a citizen’s allegiance as well as to the ultimate object of their civic identification. Is political allegiance rational or affective, that is to say, does it emerge from dispassionate reflection or potentially turbulent emotions? Is the target of this patriotism constitutional or extraconstitutional? Is love of country primarily oriented toward a nation’s laws and political institutions or other objects such as land, religion, blood, or national glory that have greater potential to inspire violence, intolerance, and nationalistic rivalry? At minimum, it seems clear that Rousseau cannot be reckoned a strict “civic” nationalist on the basis of his systematic ovations to the role of tradition, myth, religion, and affect in political life. Civic allegiance, patriotism, and “love of country” emanate from prepolitical sources, as we have seen. Yet it is equally problematic to place him in the camp of “ethnonationalism.” The most important reason is that Rousseau himself warns against the dangers of “romantic” or emotivist strains of patriotism. While commending a civic religion for its potential to bolster patriotism, he warns that this “theocratic” form is “bad in that being founded on error and lies it deceives men, makes them credulous, superstitious, and drowns the true cult of the divinity in a vain ceremonial.” Cynical manipulation of political theology makes neither for good citizens nor true believers. Worse still, Rousseau admonishes, it tends toward the very sorts of bellicosity and aggression we most fear from nationalism: “becoming exclusive

202 richard boyd and tyrannical, it makes a people bloodthirsty and intolerant, so that it breathes only murder and massacre” (SC IV.8: 465). This kind of theologically inspired patriotism more often yields “carnage and death than concord and peace” (Geneva 286). The second reason to avoid a hasty association of Rousseau with this kind of virulent ethnonationalism has less to do with psychological motivations behind love of country and more to do with the ambiguities of what, specifically, commands the citizens’ allegiance. At some moments, Rousseau points to the State, the formal laws and government of a regime, as the true object of allegiance. Properly framed, the civil religion inspires love of laws and a nation’s political institutions. It is a “civil religion,” that is to say, a religion of the city. Yet at other moments the implication is that love of “fatherland” embraces not just a country’s formal laws and political institutions but also forges a bond of love and affiliation that melds the people itself, its gods, territory, status, and collective achievements. While linked to the prosperity of the “State,” the glimmers of “pride in his country’s glory” experienced by citizens necessarily go above and beyond their solicitude for the purely formal aspects of its laws and political institutions. One can have “pride” in the legal dimensions of one’s written constitution, a respect anchored in a sober contemplation of its virtues, but a “country’s glory” almost certainly refers to other more tangible, objective achievements vis à vis foreign nations. Moreover, as Rousseau makes clear elsewhere, the true repository of a nation’s laws is inscribed “neither in marble nor in bronze, but in the hearts of citizens,” in social mores, customs, habits, and opinions (SC II.12: 394). Rousseau’s answers to these questions defy easy categorization. Indeed, they prompt us to rethink the categories we have inherited from twentieth-century studies of nationalism. If nothing else, the Social Contract leads us to reject as insufficient the purely “civic” conception of the nation as a rationalistic preference for our own political institutions. As Rousseau emphasizes, the strongest social bonds are those that antedate formal institutions, and their resilience

on the primacy of peoplehood 203 comes from the fact that they are steeped in emotions, myths, historical experiences, and even superstition. Nations are always and inevitably cultural entities. Yet the most powerful of these symbolic unifiers – language, collective memories, national glory, and above all religion – are also those which raise the greatest political dangers. “National religions are useful to the State,” Rousseau notes elsewhere with ambivalence, “that much is indisputable; but they are harmful to the human Race, and even to the state in another way,” he cryptically adds.29 Thus we should pay close attention to how Rousseau navigates these tensions within and among differing conceptions of nationhood and incorporate his subtle observations into our own study of these protean phenomena.

notes 1. Systematic engagements with Rousseau’s nationalism are uncommon in the voluminous scholarly literature on Rousseau. Among the most sustained discussions are Cohler 1970, Barnard 1988, Plattner 1997, Engel 2005, and Qvortrup 2018. Critics who have linked Rousseau to the growth of modern nationalism include Babbitt 1919, Talmon 1919, and Crocker 1968. In contrast, defenders have minimized these nationalistic tendencies and highlighted Rousseau’s affinities for moral cosmopolitanism and political internationalism. See, for example, Muthu 2015, but contrast Boyd 2013; 2015. As Helena Rosenblatt notes, striking a balance, “it would certainly be wrong to equate Rousseau’s endorsement of ‘national character’ and patriotism with the virulent nationalism born later, in the nineteenth century” (Rosenblatt 2008, 64). 2. Carr 1945, 7; Tamir 1993, 60–2; Hazony 2018, 52. 3. Babbitt 1919, 97–9. 4. See, for example, Stilz 2009 and Cohen 2010. 5. All parenthetical references are to the Pléiade edition (Oeuvres complètes de Jean-Jacques Rousseau, ed. Bernard Gagnebin and Marcel Raymond. 5 vols. [Paris: Gallimard, 1959–95]), vol. 3 in the form (Book.chapter: page). SC = Social Contract; Poland = Government of Poland; SW = “State of War”; Geneva = Geneva Manuscript. Translations are my own unless otherwise noted.

204 richard boyd 6. On Rousseau’s republicanism, see Viroli 1988 and de Dijn 2018. 7. Machiavelli 1998b, 39–41. 8. For a similar acknowledgment of Rousseau’s pattern of using “people” to denote “nation,” see Plattner 1997, 190. A much finer-grained analysis would be necessary to determine if, as seems to be the case, Rousseau often uses “nation” when referring more specifically to “peoples” that have been politically constituted in their status as sovereign states. 9. Compare Maistre 1965, 80. 10. For a more extensive discussion of this question of the political community’s size and scale, and its relationship to the possibilities for patriotism, see especially Neidleman 2012. 11. As Rousseau observes in Letters Written from the Mountain: “Patriotism and humanity . . . are two virtues incompatible in their energy, above all among an entire people” (“First Letter” 3.706 n.). 12. Compare Locke 1988, 330–3, 406–12. Bertrand de Jouvenel suggests a different precedent for Rousseau’s rejection of the Hobbesian binary of a “simultaneous foundation of society and government,” namely, Denis Diderot. See Jouvenel 1947, 47. 13. See, for example, Masters 1968: 358–9, who identifies this same distinction in the Second Discourse, where the social bond evolves “insensibly” over the course of many centuries. 14. On this distinction, see also Williams 2014, 140–1. 15. Compare Locke 1988, 349. 16. Compare Locke 1988, 348. These and other affinities between Rousseau and Locke should hardly be surprising, for as Rousseau contends in defending his rendition of governments and matters of natural and political right, “Locke in particular treated them in exactly the same principles as I did.” (Letters Written from the Mountain, “Sixth Letter,” 3.812). 17. Locke 1988, 348–9. Original emphasis. 18. Locke 1988, 349. 19. On the particularistic dimensions of Rousseau’s “general” will, see Boyd 2015. 20. Shklar 1969, 161. Original emphasis. 21. This interpretive point of whether peoples are constants or variables is surprisingly obscure in the secondary literature. Of those who have noted the ambiguity, most have concluded that national identity is in some

on the primacy of peoplehood 205 sense given insofar as peoplehood antedates the institution of government, both historically and ideally. See, for example, Dent 2005, 140–2; Barnard 1983, 231–53; Kelly 1993, 521–5. 22. Elsewhere acknowledging Rousseau’s debts to Montesquieu, Shklar relaxes this extreme interpretation. “A people’s character,” she allows, is both “an expression of a people’s physical and political experience, and also its chief source of strength in maintaining those institutions which best suit it.” What she refers to as its “active force” must “inform the law if it is to be appropriate to the physical and moral needs of the people” (Shklar 1969, 174). 23. Hobsbawm and Ranger 1983. 24. While this passage (SC II.7: 381–2) about Lawgivers ostensibly “instituting a people” may seem to imply that they are constituting a people from previously unaffiliated individuals, Rousseau’s subsequent description of the same process (2.10: 390) clearly distinguishes that this is a political act of founding a “government” and not the more primary convention of creating a people de novo. Strictly speaking, peoples make themselves; Lawgivers institute political constitutions. 25. See especially Cohler 1970, 34–5. 26. Irving Babbitt observed the following in his classic assessment of Rousseau’s “primitivist” romanticism: “Cultivate your genius, Rousseau said in substance, your ineffable difference from other men, and look back with longing to the ideal moment of this genius – the age of childhood, when your spontaneous self was not as cramped by conventions” (Babbitt 1919, 98). By comparison: “Cultivate your national genius, Herder said in substance, and look back wistfully at the golden beginnings of your nationality when it was still naïve and ‘natural,’ when poetry . . . was still the unconscious emanation of the folk” (98). While noting the parallelism between the apotheosis of the individual and the nation, Babbitt overlooks the extent to which Rousseau himself indulges not only the former but also the latter. Thus the magnitude of Herder’s “extension . . . of Rousseau’s views about genius and spontaneity” seems to be more rhetorical than conceptual. Of twentieth-century readers, it is perhaps Elie Kedourie who comes closest to acknowledging these affinities between Rousseau and later German nationalism. Rousseau’s affirmation of the complete subsumption of the individual to the general will, his insistence that “absolute loyalty” to law must become second

206 richard boyd nature, that an individual’s good must be identified with that of his fatherland – all of these “erratic, brilliant guesses” and “fragments” nonetheless did not add up to a full-blown theory. What is allegedly lacking, in Kedourie’s estimation, is “a complete and rounded theory of the state” (Kedourie 1993, 33). 27. See Habermas 1996; Müller 2008a; Viroli 1995. 28. One important exception to this tendency is Viroli (1995, 93–4), who attends carefully to the ethnosymbolic and cultural dimensions of “republican patriotism” in works such as Government of Poland, and yet who differentiates Rousseau from nineteenth-century “nationalists” who allegedly abandoned these republican dimensions and focused solely on the “cultural and spiritual unity of a people.” 29. Letters Written from the Mountain (“First Letter,” 3.705).

10 Rousseau on Voting and Electoral Laws Alexandra Oprea

In his Confessions, Rousseau claims to have extracted the Social Contract from a longer manuscript entitled Political Institutions (C 432).1 Rousseau held this project in the highest regard: Of the various writings I had in progress, the one which I meditated about for the longest time, which I attended to with the most relish, which I wanted to work on for my whole life, and which in my opinion ought to put the seal on my reputation was my Political Institutions. (C 339)

Despite Rousseau’s obvious and enduring preoccupation with political institutions, scholars have often read his concern with institutional design in Book III and especially Book IV as “quite unworthy of the setting in which they stand” (Vaughan 1962, II: 109 n. 1, cited in Williams 2014, 171), “epiphenomenal at best and trivial at worst” (Schwartzberg 2008, 403),2 providing “only a very general and desultory treatment” (Melzer 1990, 172). This chapter focuses on Rousseau’s underappreciated treatment of voting and electoral laws. The goal is to show that these are a worthy and essential part of the Social Contract. In fact, I will argue that, for Rousseau, institutions concerning suffrage are a matter of political life and death. The Social Contract is a book about the birth, life, and death of political communities. In Book III.11, Rousseau explicitly introduces the analogy between the body politic and the human body. Both, in his assessment, begin an inevitable march toward death from the moment of their birth. Both necessarily die, but it is within our power to postpone the inevitable by attending to our individual and collective health. For Rousseau, human ingenuity can forestall political death through institutional design, namely “by giving it 207

208 alexandra oprea [the body politic] the best constitution it can have.” (SC III.11, 112). The primary mechanism for reducing the speed of political decline discussed in the Social Contract is the design and reform of voting rules. This chapter is part of the recent revival of realist, pragmatic, and applied aspects of Rousseau’s political thought, adding to the work of Douglass (2013), Hanley (2008), Oprea (2019), Putterman (2001; 2003; 2005; 2010); Schaeffer (2010; 2012), Schwartzberg (2008; 2013), Scott (2005), and Williams (2005; 2007; 2010; 2014). Instead of reconstructing Rousseau’s blueprint for the perfectly just republic, I turn to his frequent discussion of flawed but enduring republics such as Rome and Venice. Through frequent and appropriate electoral reforms, these republics managed to outlive even their less corrupt contemporaries. For Rousseau, the secret to a long political life lies in the institutional details of voting laws.

voting as a matter of political life and death Voting is everywhere in the Social Contract. At the end of Book IV, chapter 1 (“That the general will is indestructible”), Rousseau notes that he could dedicate an entire treatise to the subject of “the simple right to vote in every act of sovereignty” and “the right to voice an opinion, proposing, dividing, discussing motions” (SC IV.1, 125). Unsurprisingly then, Rousseau dedicates large portions of Books III and IV to the following institutional details related to suffrage: the division of the population into electoral districts (as well as their composition, size, and frequency of redistricting), the threshold required for a decision (i.e., majority, supermajority, unanimity), the order in which ballots are cast, the manner in which ballots are recorded by electoral officers, the choice of secret versus open ballot, the timing of votes, the location of sovereign assemblies, the role of lotteries within electoral procedures, the political organization of candidates and voters, the conditions under which votes are illegitimate (e.g., vote buying vs. patron–client relationships). Rousseau is distinctive among both Enlightenment thinkers and social contract

rousseau on voting and electoral laws 209 theorists (past and present) in attending in this much detail to the institutions for casting and collecting votes. Why was Rousseau so preoccupied with suffrage? The answer, I believe, lies in the key functions that voting performs within any political community. These include what we might call matters of political life and death. On the one hand, suffrage rules are essential for the first steps of any political community (i.e., the people’s first exercise of their sovereignty and their selection of the form of government). Not only that, but voting in sovereign assemblies is the primary mechanism through which the newly born body politic can set itself into motion: “By the social pact we have given the body politic existence and life: the task now is to give it motion and will by legislation” (SC II.6, 68). On the other hand, rules concerning voting and elections are key to forestalling political death (particularly, preventing the government from usurping sovereignty and limiting the negative effects of factions). All of this, I argue, explains why Rousseau was so obsessed with voting and elections. First, universal suffrage is a necessary component of any legitimate state because it is the only way that the sovereign can express its will. Rousseau is clear that sovereignty is “nothing but the exercise of the general will” (SC II.1, 59). Although universal suffrage is not a sufficient condition for the result of the vote to constitute the general will (see SC II.3, 62), it is a necessary condition for it. According to Rousseau, “the general will, to be truly such, must be so in its object as well as in its essence, that it must issue from all in order to apply to all” (SC II.4, 64). Without universal suffrage within properly organized sovereign assemblies (more on this below, pp. 211–212), there is no way to know if the people have consented to any law. Although the people may require an enlightened lawgiver to draft their laws, no such code can become law until the people approve it through free and universal suffrage:

210 alexandra oprea He who drafts the laws has, then, or should have no legislative right, and the people itself cannot divest itself of this nontransferable right, even if it wanted to do so; because according to the fundamental pact only the general will obligates particulars, and there can never be any assurance that a particular will conforms to the general will until it has been submitted to the free suffrage of the people: I have said this already, but it is not useless to repeat it. (SC II.7, 72)

Not only is universal suffrage essential for approving the fundamental laws of the state, but it is also necessary for establishing the form of government. The only legitimate way to establish a government, according to Rousseau, is to rely on the free suffrage of the people regarding the form of government they wish to have: “It is not possible to institute the Government in any other legitimate way without renouncing the principles established above” (SC III.17, 121). Rousseau characterizes the establishment of government as “complex” because it includes two different acts or moments. The first is an act of sovereignty. It involves choosing the form of government, including laws governing the selection of magistrates. The second is an act of government. It involves choosing the specific magistrates who will fill the requisite roles. This latter act requires a transformation of the sovereign into a democratic government where the people can exercise temporary executive power.3 (Rousseau calls it a “sudden conversion of Sovereignty into Democracy” [SC III.17, 120]). Both acts must be performed by the people through their vote. Given that all forms of government must pass through these “democratic moments” where the people’s votes are collected, the rules surrounding suffrage matter irrespective of the type of government that is eventually chosen. In addition to being a constitutive aspect of what it means to exercise sovereignty, voting through regular sovereign assemblies is Rousseau’s primary expedient for preventing the government from usurping the role of the sovereign. According to Rousseau, this is the

rousseau on voting and electoral laws 211 most common cause of death for bodies politic. This explains why he is so punctilious regarding the manner of collecting votes within sovereign assemblies. Rousseau’s many institutional prescriptions manifest a remarkable degree of flexibility, adaptability, and comfort with multiple equilibria. He argues that each political community can have a uniquely best constitution and a uniquely best government appropriate to its particular conditions (see, for example, SC II.8; II.11; III.3; III.9). One of the very few inflexible institutional prescriptions concerns voting within sovereign assemblies. Rousseau argues that sovereign assemblies must take place at regular intervals and must involve a fixed and unalterable agenda that all citizens have to vote on separately and sequentially at the start of each assembly. He repeats this point in SC III.13 and III.18, emphasizing the importance of inflexible rules in this matter: “there ought to be regular and periodic ones [assemblies] that nothing can abolish or defer, so that on the appointed day the people is legitimately convened by law without need of any further formal summons” (SC III.13, 114). The periodic nature of the assemblies should be independent from the will of the executive because refusing to convene sovereign assemblies is a common tool that the executive uses in order to usurp power. He gives the example of the Decemvirs in Rome who “tried to hold on to their power in perpetuity by no longer permitting the comitia to meet” (SC III.18, 122). In addition, Rousseau denies the executive any role in setting the agenda when it comes to the two essential questions at the start of every assembly and insists upon the importance of the matter: “These assemblies . . . ought always to open with two motions which it should be impossible ever to omit, and which ought to be voted on separately” (SC III.18, 122). He even provides the specific wording of the two motions as “whether it pleases the Sovereign to retain the present form of Government” and “whether it please the People to leave its administration [entrusted] to those who are currently charged with it” (SC III.18, 122). Preventing the usurpation of sovereign power by the government is only a particular case of Rousseau’s broader concern with

212 alexandra oprea limiting the damage that factions can do when they dominate the assembly and substitute their corporate will for the general will. When introducing sovereign assemblies, Rousseau claims that “one cannot be too careful about observing all the requisite formalities to distinguish a regular and legitimate act from a seditious tumult, and the will of an entire people from the clamors of a faction” (SC III.18, 122) The implication is that rules concerning the time, manner, and place of sovereign assemblies, as well as other electoral rules concerning the manner of collecting and counting votes, are essential to constraining factions and preserving republics. Unfortunately, Rousseau does not provide a clear and systematic argument for how these electoral rules should be designed in order to fulfil this function. However, he does offer readers a concrete example that he explicitly claims will illustrate the relevant maxims: “It would remain for me to speak about how to cast and to collect the votes in the people’s assembly; but perhaps the history of Roman policy in this matter will explain more concretely all the maxims I might establish” (SC IV.3, 130). And, as if anticipating the relative neglect of Book 4 and the institutional details in chapter 4, he notes that attending to it is “not unworthy of a judicious reader” (SC IV.3, 130). In the next section, I turn to Rousseau’s examples in Book IV to illustrate the ways in which electoral rules can forestall decline and control the effects of faction. The discussion of Rome draws on previous work reconstructing the Roman model in Lane 2015, Arena 2016, and Oprea 2019. This chapter builds upon these contributions while adding further institutional detail and comparisons to other flawed republics such as Venice, Bern, England, and Geneva.

how electoral rules forestall political decline Rousseau clearly cared about universal suffrage as a constitutive aspect of popular sovereignty. However, the discussion above reveals that his preoccupation with electoral rules extended beyond this familiar aspect of his thought. In particular, he was concerned with forestalling political decline, particularly the common forms of

rousseau on voting and electoral laws 213 decline that involve usurpation of the sovereign by the government or domination of the popular assembly by a single group or faction that drowns out the general will. It is my contention that many of Rousseau’s detailed institutional prescriptions regarding suffrage and elections were meant to forestall precisely these causes of decline. In this section, I briefly discuss some rules that Rousseau found potentially effective in restraining factions: (1) electoral redistricting; (2) insulating electoral laws from politics; (3) using secret ballots; (4) using lotteries; and (5) using legislative stalling techniques (e.g., filibuster, auguries, public order rules). All of these rules draw upon Rousseau’s models of imperfect political communities that nonetheless were able to forestall political death through a series of electoral expedients. The discussion of the Roman comitia in SC IV.4 is, I would argue, a Rousseauian masterclass on gerrymandering. He notes that the Romans used three separate voting assemblies (the assembly by tribes, the assembly by centuries, and the assembly by curiae) and that the different electoral rules and electoral districts used by these different assemblies influenced the electoral outcomes in predictable ways: “It is therefore evident that these various divisions of the population were not simply forms indifferent in themselves, but that in addition to determining the order in which the votes cast by such a large People were counted, each one of them had effects relative to the views that led to preferring a given division” (SC IV.4, 138). In this respect, Rousseau anticipates William Riker, Kenneth Arrow, and other social choice theorists who emphasize the dependence of electoral outcomes on the choice of electoral rules. Unlike them, however, Rousseau does not find the implicit indeterminacy of collective will problematic. Instead, he argues that the choice of electoral districts provides electoral officers with an opportunity to limit powerful factions. The main officers involved in redistricting in Rome were the censors, whose regular reassessment of citizen’s wealth, capacity for

214 alexandra oprea military service, and morals allowed them frequent opportunities to reassign a citizen to a different electoral district. Rousseau notes, for example, that citizens whose conduct concerned the censors could be reassigned away from the rural tribes who held the majority in the assembly by tribes: “cowards whom they wanted to dishonor were transferred to the urban Tribes as a disgrace” (SC IV.4, 132). Ideally, the mechanism could operate as a de facto form of ostracism, where dangerous leaders of factions could be transferred away from the centers of political power. Unfortunately, the eventual corruption of these electoral officers prevented the mechanism from operating as intended. According to Rousseau, censors eventually allowed citizens to enroll in whichever tribe the citizens wanted (presumably through a bribe to the electoral officer). This, Rousseau claims, “deprived the censorship of one of its main tools” (SC IV.4, 133). In addition to gerrymandering through censors, Rousseau also discusses the ways in which lawgivers such as Servius relied on electoral divisions to forestall the domination of a single faction. He argues that the original division of the population by Romulus was flawed because it created three electoral districts based on race, and one of the districts was growing in size much more rapidly than the rest. This, in Rousseau’s assessment, would have allowed one group to become dominant in voting assemblies and to impose its private will on the rest. Servius’ solution to this problem involved redistricting: “The remedy Servius devised for this dangerous imbalance was to change the division, and to substitute for the division by race, which he abolished, another division, based on the city district which each Tribe occupied” (SC IV.4, 131). Rousseau claims that this solved the immediate problem while also forestalling future problems, given the constraints on relocation to different electoral districts. The problem with the Roman solution of gerrymandering electoral districts in order to prevent factions from dominating the popular assemblies is that the agents with the power to shape electoral districts can abuse this power. Rousseau is, of course, aware of this. To some extent, no degree of institutional design can make up for the

rousseau on voting and electoral laws 215 absence of virtue in the population. The advantage of allowing censors to change the composition of electoral districts is that they are relatively independent from the rest of the government and are therefore less capable of using their power to usurp the role of the sovereign. Where the risk of usurpation is present, however, Rousseau argues that electoral laws should be insulated from the short-term political process. When comparing the three types of aristocratic regimes (i.e., natural, elective, and hereditary), he notes that hereditary aristocracy is the worst of all possible governments. To prevent its occurrence, he recommends that the sovereign determine the electoral laws through sovereign assemblies instead of leaving the matter to elected officials: “It is very important to regulate the form of electing magistrates by laws; because if it is left to the will of the Prince, hereditary Aristocracy is the inevitable consequence, as it was in the Republics of Venice or of Bern” (SC III.5, 95). Another aspect of voting that Rousseau closely attended to is the publicity of the ballot. He thought the best electoral system would be a simple, transparent, and public one like the system of Sparta. (Spartans voted through acclamations where candidates were chosen based on the loudness of the cheers of the crowd, as recorded by electoral observers who did not know which candidate was being cheered for. For a longer discussion of acclamation, see Schwartzberg 2010.) The early Roman voting system was a close second in simplicity, with each individual publicly expressing his vote to a clerk who would record all votes in writing and tally them up one by one. The final result would come from aggregating the votes on the basis of the electoral divisions (i.e., the majority of a tribe determined the vote of that tribe, the majority of the tribes determined the overall outcome). Although Rousseau preferred these open voting systems, he found the innovation of using a secret ballot justified as an anticorruption measure: “when the people grew corrupt and votes were bought, it [Rome] agreed to secret balloting so that buyers might be restrained by mistrust and scoundrels given a way not to be traitors” (SC IV.4, 138). Without the certainty that the electoral bribe could produce its

216 alexandra oprea intended electoral outcome, both buyer and seller could be disincentivized from the transaction. Contrary to Cicero’s belief that this change led to the decline of Rome, Rousseau insists on the contrary: “I think, on the contrary, that the loss of the State was hastened because not enough such changes were made” (SC IV.4, 139). As a template for further such changes, he suggests the model of Venice, which he claims “retains a simulacrum of existence, solely because its laws are suited only to wicked men” (SC IV.4, 139). One of the Venetian expedients to forestall vote buying and other forms of electoral fraud by powerful factions could be the use of the lottery as part of its electoral procedures. Rousseau does not directly specify which feature of the Venetian system would have been helpful for the Romans to adopt. However, the bulk of the discussion of Venice in the Social Contract refers to its complex electoral system that combines the use of lottery with the use of elections. Rousseau claims that this composite system suits the mixed government of Venice that combines elements of aristocracy with elements of democracy. According to Rousseau, the Venetian government is very similar to the Genevan one, with the main difference being the election of chief executives for life. It is this election for life that Rousseau believes induces the need to use a lottery in the election: “The entire difference is that since we [Genevans] have no chiefs for life, we have not the same need for election by drawing lots” (SC V.3, 129). This comment is difficult to explain given Rousseau’s maxim that election by choice is suitable to positions that require specific talents, whereas election by lot should be used for positions where one merely requires “good sense, justice, integrity,” which can be assumed to be common among all citizens in a virtuous republic. The position of doge or chief executive for life would almost certainly fall under the category of positions that require special skills rather than a position any citizen could discharge. Moreover, Rousseau is explicit that Venice is a corrupt republic full of wicked citizens. The best way to make sense of Rousseau’s cryptic remark about using lotteries because the doge is elected for life is that the introduction of

rousseau on voting and electoral laws 217 the lottery serves to constrain electoral fraud by preventing dominant factions from buying enough votes to skew the election. Further evidence that the lottery is the Venetian mechanism Rousseau has in mind for forestalling the decline of Rome is his endorsement of a limited use of lotteries within the Roman assembly by centuries. Rousseau notes that the assembly by centuries strongly favored the rich, given that the wealthiest citizens had the largest number of centuries and could command an electoral majority on their own if they were united in their preference. One of the tools to limit the dominance of this particular faction, however, was the randomization of the voting order of the different centuries: “instead of having the Centuries start voting in order, which would invariably have led to begin with the first one, a Century was chosen by lot, and that one alone proceeded to hold an election” (SC IV.4, 137). Rousseau commends this practice as salutary on two separate grounds. First, it diluted some of the power of rank because “the authority of example” was randomly distributed and could be given to a less wealthy cohort of citizens. Second, it gave the remaining voting groups an extra day to research the frontrunners in the election, allowing for a more informed choice. Both of these aspects of incorporating lotteries seem important to Rousseau as measures that could forestall political decline. The final category of electoral rules that can forestall political decline covers a selection of stalling techniques that can be used in case of emergency. Most of these rules are measures of last resort that can prevent a dominant faction from inscribing its preferences into the voting record by opportunistically ending the legislative assembly before the decisive moment. Rousseau has a few examples of techniques that the Romans used. One technique involves the use of religion to thwart the assembly. Rousseau notes that three conditions had to be simultaneously met for a popular assembly to take place: (1) that the legitimate body convene the assembly; (2) that the assembly took place during a legally permissible time; and (3) “that the auguries were favorable”

218 alexandra oprea (SC IV.4, 135). With regards to (1), Rousseau has already noted the need to include periodic assemblies that are not dependent on the will of any particular magistrate. With regards to (2), Rousseau justifies it as a law that ensures all citizens, including those coming to Rome from the countryside, could be present for the election. (One can think of the contemporary analogue as having elections on a Sunday or making the election day a holiday.) It is rule number (3), however, that Rousseau argued could most effectively be used by the Senate in order to prevent an assembly when there was a threat of sedition or violence. According to Rousseau, “with the third the Senate reined in a proud and restless people and, when necessary, tempered the ardor of seditious Tribunes” (SC IV.4, 136). This justification confirms the idea that Rousseau considered this a technique for controlling factions when all other methods had failed. Toward the end of the republic, he notes that Romans made increasing use of “prodigies,” unusual omens that portended divine displeasure regarding the timing or manner of an assembly. These could be grounds for postponing an assembly until a better time. In this case, however, he is much more explicit about the limits of this approach: “this means, which might deceive the people did not deceive those who governed it” (SC IV.4, 139). Because the control over these religious symbols belonged to the magistracy, this expedient for curbing the influence of powerful faction leaders could result in destroying the body politic by allowing the executive to take over the legislative function. Another mechanism Rousseau mentions as an emergency measure that can limit the damage done by factions is altering the timing of elections. One method has an analog to the contemporary filibuster. According to Rousseau, “sometimes, when the people were found to have been won over and ready to make a bad choice, an entire session was taken up by talk” (SC IV.4, 139). Alternatively, Rousseau

notes

that

magistrates

could

convene

assemblies

quickly in order to limit the time available for electoral politics and intrigues: “sometimes an assembly was convened suddenly, before the candidates had time to engage in their intrigues” (SC IV.4, 139). If

rousseau on voting and electoral laws 219 the first method served to delay the vote, the latter served to accelerate the timeline. Both were intended as methods to prevent faction leaders from imposing their will on the popular assembly. All of the mechanisms discussed in this section involve changes to electoral rules that can forestall political decline. While some of these solutions put the power in the hands of the magistrates, others put the power in the hands of the people. Before drawing this section to a close, it is worth remembering that these expedients were largely introduced in order to deal with corrupt republics that have already begun to decline and are too far gone for a systematic reform of morals. For republics that are not corrupt, Rousseau’s primary mechanisms for keeping factions and powerful citizens in check is the electoral check of a virtuous citizenry. In a memorable comparison, he notes that the kind of civil war and factional conflict that plagued England during the seventeenth century would have been inconceivable in some of the more virtuous city-states because the citizens would have been fortified against demagoguery and factional politics: “They [skeptics] laugh as they imagine all the nonsense of which a clever knave or an insinuating speaker could persuade the people of Paris or London. They do not know that Cromwell would have been sentenced to hard labor by the people of Bern, and the Duc de Beauford to reformatory by the Genevans” (SC IV.1, 124). Although Rousseau attends to an impressive range of details, all of his examples constitute (at least partially) flawed republics, including England, Venice, Geneva, Bern, Rome, and Athens. In each case, Rousseau notes the ingenious ways in which electoral institutions were adapted to forestall the further decline of the political community in question, often postponing the death of a political community by centuries. Given Rousseau’s bleak assessment of European monarchies, it should not surprise us that the best institutional prescription is one that aims to slow corruption rather than reverse it. By attending to the plurality of methods used to adapt political institutions to nonideal political communities, one can more clearly see how the pragmatic and realist Rousseau could have addressed his writings to a range of

220 alexandra oprea political contexts, including small commercial republics such as Geneva and Venice, agricultural polities such as Corsica, as well as large countries such as England, France, or Poland. In this respect, the chapter also reconciles Rousseau’s pessimism and realism with his avowed aspiration to be “useful to the happiness of the human race” through the truths uncovered in his political writings (C 340).

conclusion Few political philosophers have given as much thought to voting, popular assemblies, and the practical aspects of running elections as Jean-Jacques Rousseau. Yet these institutional details have often been underappreciated in the secondary literature on the Social Contract. The goal of this chapter has been to return this preoccupation with political institutions to its proper place in Rousseau’s political thought and in his best-known political treatise. At the same time, attending to the discussion of electoral rules reveals important tensions in Rousseau’s thinking about democracy. On the one hand, he insists on the inviolability of universal (male) suffrage and inflexible rules regarding periodic popular assemblies where the people can safeguard their sovereignty. On the other hand, his concerns about factions, demagogues, and electoral fraud lead him to make concessions that would bias elections in favor of one set of elites in order to prevent domination by another. One would be justified to worry that these latter concessions take democracies out of the frying pan of dangerous persuasion by faction leaders only to throw them into the fire of behind-the-scenes electoral manipulation by political elites. However, it would be a mistake to read too much antidemocratic sentiment into Rousseau’s methods for forestalling political decline. While most scholars gloss over the rich institutional detail in chapters 4 and 5 of Book 4, John McCormick’s antidemocratic reading of Rousseau’s Rome overestimates their significance by glossing over the rest of the Social Contract. McCormick is right that Rousseau intended these chapters in Book 4 to be prescriptive (McCormick 2007, 9;

rousseau on voting and electoral laws 221 McCormick 2018, 119). However, he is wrong about their purpose. Despite the careful analysis of Book 4 provided by McCormick, it is inconsistent with the rest of the Social Contract to conclude that “Rousseau distrusts the poor much more than he despises inequality” (McCormick 2018, 111) or that “Rousseau celebrates an oligarchy cloaked as a popular government” (McCormick 2018, 142). Based on the analysis in this chapter, we can find an alternative explanation for the role of these seemingly antidemocratic voting rules in Rome. I contend that Rousseau found these electoral reforms necessary to postpone the death of the Roman Republic at the hands of a successful faction leader – the fate Rome eventually succumbed to. Rome, like Venice, was already plagued by economic inequality and social divisions that threatened to translate into political domination. The departure from equal voting power (like the departure from open ballots) was a cost he was willing to bear for the sake of preserving at least some degree of sovereign power for the people. Whether the cure is worse than the disease is part of the normative questions that the Social Contract invites readers to consider. The hope of this chapter is that it allows Rousseau’s readers to better discern Rousseau’s contradictions – contradictions that arguably characterize many contemporary democratic theorists’ attempts to grapple with the risks that polarization, populism, and conspiracy theories pose for the long-term survival of democracies. At a time when the largest numbers of democratic reversals to authoritarianism are occurring through popular elections of undemocratic candidates rather than through extraelectoral means such as military coups, Rousseau’s concerns about the design of electoral rules are as salient as they have ever been. Whatever we might think of his solutions involving gerrymandering, lotteries, filibusters, and the secret ballot, the Social Contract has the advantage of confronting the challenges of democracy head on.

222 alexandra oprea

notes 1. References to Rousseau’s work will be given as follows: C = Confessions (Confessions and Correspondence, including the Letters to Malesherbes, trans. Christopher Kelly, ed. Christopher Kelly, Roger D. Masters, and Peter G. Stillman [Hanover, NH: Dartmouth College Press, 1998]); SC = Social Contract (in The Social Contract and Other Later Political Writings, 2nd ed., ed. Victor Gourevitch [Cambridge: Cambridge University Press, 2019]). 2. It is not clear whether Schwartzberg is merely summarizing the position others have taken or if she also endorses it. 3. For further discussion of this important distinction between sovereignty and government both in Rousseau’s thought and in other prominent seventeenth- and eighteenth-century thinkers, see Tuck 2016.

11 On the Possibility of a Modern Republic Rousseau and the Puzzle of the Roman Republic Geneviève Rousselière

Early on, Rousseau acquired the reputation of being both an egalitarian and a republican, one he still largely holds today (Rosenblatt 1997; de Dijn 2015; Spitz 2016; Williams 2024).1 Following the Discourse on the Origin of Inequality’s claim that social inequalities have no natural foundation (SD 131; Neuhouser 2013),2 the Social Contract is commonly taken to be a radically egalitarian treatise: the strict political equality of all citizens is the condition for the law to guarantee the freedom of all (SC I.6). It also advocates for a form of popular sovereignty that we would today call “direct democracy”: it is the people, all the people, and only the people – not their representatives (SC III.15) – who ought to make the laws (SC I.7). As he insists that the two principal objects of any legitimate system of legislation are equality and freedom (SC II.11.1), Rousseau seems best described as a proponent of republican democracy, one in which equality as an instrumental principle serves the protection of freedom as nondependence for all (Neuhouser 2013). The Social Contract, however, does not entirely support this popular interpretation. Book IV introduces a curious textual and theoretical puzzle at the end of this tightly argued treatise. After the first three books on the fundamental “principles of political right,” Rousseau launches into a detailed historical description of the institutions of the Roman Republic that seems prima facie at odds with the egalitarian principles of the first books. Chapters IV.4 to IV.7 (the Roman Republic chapters hereafter referred to as RRC) present as 223

224 genevie` v e r o u s s e l i e` r e “one of the best constituted governments” (SC III.11) a state based on military expansion, slavery, class division, and widespread economic and political inequality. In particular, chapter IV.4 directly praises the inegalitarian voting system of the Roman Republic, in which a very small part of the population – what we would call today its 1 percent – was able to rule over the largest part of the people. The fourth book should either be considered an anomaly or prompt us to significantly revise our vision of Rousseau from a proponent of republican democracy to one of plutocracy, or maybe a form of Realpolitik. The explanations for this puzzle have been remarkably scarce despite the abundant scholarship on the Social Contract.3 As the fourth book is somewhat convoluted, many scholars have simply preferred to steer clear of it. A dominant interpretation, offered by Derathé, has been that Rousseau wrote the RRC as a filler to bridge between its political principles (Books I–III) and the chapter on civil religion (IV.8).4 This interpretation seems supported by a genetic approach: the first version of the Social Contract, the Geneva manuscript, bears no trace of the Roman Republic Chapters, though it presents large developments from Books I–III and the largest part of the civil religion chapter. The summary of the book in Emile is also silent about it.5 Yet this interpretation is unsatisfactory. It fails to explain why Rousseau would write these detailed chapters. That he did not envision them early in the writing process does not disqualify their importance – on the contrary this addition may even suggest that they were in response to an important gap in the argument that Rousseau was making. John McCormick has recently offered the most compelling, as well as the most controversial, explanation for the RRC puzzle. He urges readers to bite the bullet and take seriously Rousseau’s praise of the inegalitarian voting system of the Roman Republic as an endorsement of a form of aristocratic, or even plutocratic, republicanism (McCormick 2007; 2018). These chapters, he argues, are not outliers; they reflect what Rousseau maintains all along: that the people need to be kept in check and that the rich and powerful need to be in charge.

on the possibility of a modern republic 225 Scholars are blinded by Rousseau’s egalitarian posterity, from the Jacobins to contemporary democrats, but Rousseau is no radical egalitarian. McCormick’s interpretation solves the puzzle because it erases the contradiction between the concrete example of Rome and the abstract political principles of the Social Contract. In this chapter, I rebut this interpretation and propose an entirely different solution by analyzing the role of the RRC in the overall argument of the Social Contract. I contend that Rousseau employs the highly flawed example of Roman institutions in an a fortiori argument in order to demonstrate not the supposed superiority of the Roman political system of plutocracy – a truly reprehensible form of both sovereignty and government for Rousseau – but the general plausibility of the existence of large republics in modern circumstances. The RRC should thus be construed as Rousseau’s intervention in an important debate of his time on whether it is possible for a republic to exist in a large country.6 Rousseau is overwhelmingly considered a proponent of a dominant thesis in his time, which we can call the “scale thesis” – republics can exist only in small citystates.7 I contend that these chapters demonstrate that he was arguing the opposite position. Using an example from antiquity, he aims to show that his principles are neither utopian nor outdated, but that they are suitable to be implemented in the modern world of large states.

the puzzle of the roman republic chapters The Roman Republic Chapters are introduced with an explanatory goal: “Perhaps the historical sketch of Roman administration in the [matter of votes] will explain more concretely all the maxims which I might establish” (SC IV.3). Chapter IV.4 describes the history of Roman voting systems, which underwent a series of reforms to adapt to its changing demographic circumstances. The following chapters focus on key offices of the Roman Republic: the tribunate (IV.5), the dictatorship (IV.6), and the censorship (IV.7).

226 genevie` v e r o u s s e l i e` r e According to Rousseau, there are three types of voting assemblies, or comitia, in the Roman Republic: the assembly according to curiae (comitia curiata), the assembly according to tribes (comitia tributa), and the assembly according to centuries (comitia centuriata). Each of these divisions (curiae, tribes, centuries) represent more than a simple distribution of political districts for voting purposes. Each is a social division of the Roman people, mainly along territorial lines. While these different assemblies coexisted at the time of the Republic and each had a varying degree of importance at different historical moments, Rousseau takes pains to describe the historical circumstances in which each of them came to be implemented, each time to respond to a demographical change that threatened the integrity of the Roman people, such as the influx and higher fertility of foreigners and the growing disparity of population between cities and rural areas (IV.4.5). These different assemblies are the institutions in which the Roman people exercised its sovereignty: No law was sanctioned, no magistrate elected except in the comitia, and since there was not a single citizen who was not enrolled in a curia, a century or a tribe, it follows that no citizen was excluded from the right to vote, and that the Roman people was genuinely sovereign both by right and in fact. (SC IV.4.21)

Having shown that all these assemblies played a concomitant role in the Roman constitution and that therefore all citizens were part of the sovereign, Rousseau could have chosen to stop here his demonstration that Rome had a popular sovereign – which he needed in order to prove it was a republic according to his own definition. However, the chapter culminates in the prima facie unnecessary specification that the only legitimate assembly was the comitia centuriata (IV.4.34). Rousseau argues that the comitia curiata was discredited because it was comprised only of the people from the inner city of Rome, while the comitia tributa was incomplete because it excluded the Senate and the patricians (IV.4.34).

on the possibility of a modern republic 227 The argument that only the comitia centuriata is legitimate stems from Rousseau’s principle of popular sovereignty: only a state in which all the people have legislative power can be legitimate. This principle of popular sovereignty underlies his theory of the general will. There can be a general will only if no one is excluded in the voting process of fundamental laws: “For a will to be general, it is not always necessary that it be unanimous, but it is necessary that all votes be counted; any formal exclusion destroys generality” (II.2.1). Since the comitia centuriata is the only one that includes all the people, it is the only one in which the people can exercise its sovereignty. So far, Rousseau may be considered to be saying nothing contrary to his principles. However, he insists on the historically true fact that the comitia centuriata favored the rich in such a way that the rich were, in practice, the ones who took the decisions: Since of the hundred and ninety-three centuries which formed the six classes of the entire Roman people, the first class comprised ninety-eight, and the votes were only counted by centuries, this first class by itself alone prevailed over all the others by the number of its votes. When all of its centuries were in agreement they did not even go on collecting ballots; what the smallest number had decided passed for a decision of the multitude, and in the comitia by centuries majorities of cash more often than votes can be said to have settled affairs. (SC IV.4)

Rousseau therefore seems to praise a legislative assembly in which (1) the smaller number rather than the majority decided; (2) the smaller number was the richest, which means that money ruled over the legislative process; (3) the poor were in practice disenfranchised since their ballot was not even counted most of the time. Rousseau mentions two tempering elements with approbation: (1) a process of prae-rogativa, a lottery system in which different centuries would get to give the first vote and therefore set the dominating pattern; (2) the influence of the tribunes of the plebs, who sometimes belonged to the

228 genevie` v e r o u s s e l i e` r e highest centuries and therefore were not disenfranchised. All in all, however, Rousseau seems to be praising, and counting as the pillar of the Roman Republic, its voting system based on the influence of wealth and the disenfranchisement of the poor. The next RRC, chapter IV.5, describes the tribunate, which serves the function of “preserving the laws and the legislative power” (IV.5.1). Tribunes have existed, and ought to exist, in order to compensate for a lack of equilibrium between different bodies, in particular between the government and the sovereign. While Rousseau describes them as necessary instruments of balance, he also argues that tribunes, including the Roman tribunes of the plebs, are not part of the constitution and should remain a temporary and intermittent institution (IV.5.7–8). The rationale is that their constant presence would run the danger of their magistracy usurping part of the legislative power, following his general institutional principle according to which any magistracy tends to hoard power for itself (IV.5.5). Finally, Rousseau describes two institutions of the Roman Republic, the censorship and the dictatorship, as means to preserve the constitution. Both institutions, he argues, were necessary in order to avoid the premature collapse of the Republic. The censorship helped the maintenance of mores, an institution all the more important because Rome lacked a tradition of public education. The dictatorship was essential for avoiding the destruction of the Republic in times of emergency. Rousseau argues that the latter was necessary as Rome was constantly under external military threats and internal threats of corruption and division. Rousseau makes a few errors in his description of Roman institutions, which raises the question of his intent. In particular, he confuses the comitia tributa (the assembly based on tribes) and the concilium plebis (the special council of the plebs). This confusion is theoretically important, since the assembly based on tribes was undoubtedly the most egalitarian of all the comitia, while the council of the plebs, by its very function, was reserved to the plebs and

on the possibility of a modern republic 229 excluded patricians. The confusion between the two means that Rousseau rejects the comitia tributa, the most egalitarian assemblies, on the ground that they are exclusionary, which means that his only remaining option is the comitia centuriata, which, as we saw, had an extremely inegalitarian voting system. One methodological difficulty is that, as Rousseau recognizes, he lacks adequate sources to describe the Roman institutions accurately. This raises the following problem: when does he merely follow the common beliefs of his time, and when does he willingly describe Roman institutions in the way that best suits his argumentative purpose? McCormick argues that the description of Roman institutions has a prescriptive goal (McCormick 2007, 9) and takes Rousseau not to make an honest mistake, but to deliberately distort Roman institutions to facilitate his aristocratic goal. Arena argues, more charitably, that Rousseau merely repeats a mistake that was common in his time and notably present in Montesquieu’s Spirit of the Laws, a likely source for Rousseau’s Roman history (Arena 2016). Either way, the puzzle remains. Whether or not Rousseau’s description of Rome is accurate, why would he choose the Roman Republic, with its overwhelmingly inegalitarian features, to explain the abstract egalitarian model presented in the first three books of the Social Contract? Why Rome rather than the more egalitarian Athens or Sparta? Why not illustrate it with Geneva, which, as he claims in the Letters from the Mountain, is the real republican model that inspired the Social Contract (LM 3:809)? And why would he present Roman institutions with a seal of approval, or even admiration, when he himself describes them as marred by a series of shortcomings?

the aristocratic thesis McCormick and Arena agree that readers should not dismiss the RRC as antiquarian or as mere fillers. Rather they both claim that they reveal something important about Rousseau’s republicanism. I concur. But for McCormick, the diagnosis is that Rousseau’s political theory is “not all that different from the aristocratic

230 genevie` v e r o u s s e l i e` r e republicanism

of

Aristotle,

Cicero,

Bruni,

Guicciardini

or

Harrington” (McCormick 2007, 23). In this tradition, the common good is facilitated by the best, most notable, and wealthiest citizens. Rousseau’s theory “explicitly prescribes institutions that enable rather than constrain the prerogative of elites within republics and popular governments” (McCormick 2007, 5). His endorsement of the comitia centuriata confirms what he states in the second book of the Social Contract: the people, this “blind multitude,” is incapable of recognizing the good, and its judgment must be guided (II.6.10). McCormick ponders the reasons why Rousseau would go out of his way to endorse plutocratic institutions beyond mere aristocracy, why he praises clientelism when he condemns dependence and slavery everywhere else, why he would condone the Roman confusion between government and sovereignty when he clearly states that a republican government is one in which they are separated, or why he, the supposed defender of the poor, would argue that the tribunate should not be part of the constitution. The only possible conclusion, McCormick maintains, is simply that he is an aristocratic republican at heart: the common good can be sustained only in institutions where the few rules over the many. McCormick’s criticism is turned toward contemporary politics, as he denies that Rousseau is a “worthy resource for democratic theory and practice” (McCormick 2007, 5). In his view, the aristocratic regime proposed by Rousseau is inadequate to inspire the kind of change needed in the context of the contemporary crisis of accountability, the rise of inequality, and the power of economic and political elites (McCormick 2007, 4). On a surface level, despite his original analysis of Book IV, McCormick’s thesis may be less polemical than it sounds, taking into account the fundamental difference, emphasized by Rousseau, between the sovereign (the bearer of legislative power) and the government (the delegated body charged with executive power). Rousseau scholars generally recognize that he prefers aristocracy as a type of government, even if he advocates democracy as a mode of

on the possibility of a modern republic 231 sovereignty (Miller 1984, 106–7; Dent 2005, 44; Williams 2014, 123). Rousseau believes that, in most cases, the executive power is better left in the hands of an enlightened elite, but that the people should always retain legislative power. He maintains this position in the first books of the Social Contract (SC III.5.7), the Letters from the Mountain that aimed to justify his rationale (LM, VI in OC 3:811) and elsewhere.8 “In a word, 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” (SC II.5.7). An aristocratic executive power does not negate the fundamental and essential equality of all citizens, both in their equal participation in the legislative process and in the equal protection of their freedom and property under the law. Aristocratic government is a necessity for the difficult exercise of democratic sovereignty. Questioning Rousseau’s endorsement of absolute equality would also hardly be a novelty. For instance, in the “epistle dedicatory” to the Second Discourse, the Republic of Geneva is praised because it happily combines, in the way “most in conformity with natural law and most favorable to society,” “the equality which nature has ordained among men and the inequality which they have introduced.” Very few scholars would now believe that Rousseau is a radical egalitarian, a position which has been widely refuted in different ways (Neuhouser 2013). Yet I take it that McCormick does not only argue that Rousseau endorses some degree of inequality in wealth or executive power. Rather, and more importantly, he holds that Rousseau advocates an unequal distribution of power among citizens in the exercise of sovereignty. This is the most unsettling aspect of McCormick’s Rousseau: that he seems to endorse an aristocratic type of sovereignty, when he claims everywhere else that aristocracy is the worst kind of sovereignty. It is to some extent almost incomprehensible given that the basis of the social contract is the idea of reciprocity stemming from the equal commitment of all to the contract both as part of the sovereign and as subject (SC 1.6.6).

232 genevie` v e r o u s s e l i e` r e

the debate over the possibility of a large republic McCormick’s diagnosis does not explain why Rousseau would endorse an aristocratic form of sovereignty in Book IV when he adamantly rejects it elsewhere. I contend that to make sense of this, we need to place the Social Contract back in the historical context of the debate in Rousseau’s time over the possibility of a republic in a large country. Before the French Revolution, even the boldest critics of absolute monarchy in Enlightenment circles had difficulty imagining how a large and unwieldy country like France, full of regional identities and privileges, could be governed without the central power and decisive authority of a king.9 If republicans were sparse before the Revolution, this was certainly not because the republican language of freedom was absent or unheard of in France at the time. Machiavelli, Harrington, Sidney, and many other notable republicans were widely read. Yet a broad consensus seemed to have been that republicanism was a form of government adapted only to small, and preferably agrarian, countries. This is the “scale thesis.”10 The proponents of luxury and doux commerce argued that constitutional monarchies or even forms of benevolent despotisms were more adapted to the development of commerce and economic forces than republics.11 Montesquieu had given the definitive statement of the “scale thesis” in the Spirit of the Laws and the Considerations of the Greatness of the Romans: “It is in the nature of a republic to have only a small territory; otherwise it can scarcely continue to exist” (SL I.8.16). His diagnosis became so prominent that in writing the different articles on republics in the Encyclopédie, Jaucourt, a prolific contributor, did little more than offer a compendium of quotations from Montesquieu’s work.12 Classical republics, Montesquieu held, were not adapted to the age of commerce and large states because virtue, the essential spring of republics, could not subsist in them. Rousseau, a fervent reader of Montesquieu, is often taken to argue that there cannot be republics in large countries (Levy 2006). This position is hardly surprising given that he writes at length about

on the possibility of a modern republic 233 the impracticality of large and diverse countries and their difficulties in being well governed. The second book of the Social Contract argues that in large and heterogeneous states, either there are too many different laws that create chaos and confusion, or the same laws are imposed yet are bound not to be adapted to this diversity (SC II.9.3). All in all: Just as nature has set limits to the stature of a well-formed man, beyond which it makes only giants and dwarfs, so, too, with regard to the best constitution of a state, there are bounds to the size it can have in order not to be either too large to be well governed, or too small to be self-sustaining. (SC II.9.1)

In this chapter, his position seems to be that for a country to have a chance of being a republic, it should be small, homogeneous, and full of virtuous citizens – like Sparta or the Geneva of the epistle dedicatory to the Second Discourse, and unlike France and the Roman Empire. His concern seems to be mainly about what he calls the “social bond”: “The more the social bond stretches, the looser it grows, and in general a small state is proportionally stronger than a large one” (SC II.9.1).

the status of the example and the argument of possibility In this section, I argue for the opposite thesis: I contend that Rousseau rejected the scale thesis. While he did believe that the best circumstances for a republic were those of a small, homogeneous, and virtuous city-state, he rejected the idea that only such states could become republics. On the contrary, he envisioned that the social contract could be implemented in large states.13 Rousseau introduces his analysis of the Roman Republic to fulfill this purpose in Book III, where he suggests a possible objection to his theory of popular sovereignty: that it is impossible for a large people, or a people in a large country, to assemble, which means that they would need representatives.

234 genevie` v e r o u s s e l i e` r e Let us consider what can be done in the light of what has been done. I shall not speak of the ancient republics of Greece but the Roman Republic was, it seems to me, a large state and the city of Rome a large city. (SC III.12.3)

The presentation of Rome as a large nation is not particular to the Social Contract. Regardless of the different argumentative strategies in which this example appears in Rousseau’s corpus, Rome’s size and its status as “the capital of the world” are common (FD in OC 3:10). Rome is the obvious example of a large republic that Rousseau’s readers would recognize. In Book IV, Rousseau reintroduces the reason why he needs to develop the example of the Roman Republic: as a way to illustrate the principles of the Social Contract. It is therefore quite clear that the RRC do not purely describe the institutions of the Roman Republic but are used for normative purposes:14 It remains for me to speak about the way votes should be cast and collected in the assembly of the people; but perhaps the historical sketch of Roman administration in this matter will explain more concretely all the maxims that I might establish. It is not unworthy of a judicious reader to consider in some detail how public and particular business was conducted in a Council of two hundred thousand men. (SC IV.3)

Rousseau recognizes that his theory may appear chimerical. His best answer to this objection – one which, it has to be said, will be made repeatedly in the centuries to come – was to study past practice. “The inference from what is to what is possible seems to me sound” (SC III.12.5). Far from taking the example of the Roman Republic as a model from the past that we should try to reconstitute out of nostalgia, he presents it to rebut an argument of unrealism. That Rousseau cared about the practical application of his work is beyond doubt. In the Letters from the Mountain (LM 6 in OC 3:810), he insists that the reason for the condemnation of the Social Contract

on the possibility of a modern republic 235 is precisely that it is not an abstract “system” that could be discarded as hopelessly utopian, “like Plato’s Republic or [More’s] Utopia” (OC 3:810). Rousseau uses the Roman Republic example to make two arguments in favor of the applicability of the Social Contract in modern Europe. The first one is that it is possible for a large and diverse republic to exist in modern times. The second is that it is not only possible but also plausible for such a republic to exist in modern times. The first claim (the “possibility argument”) is rather bold (virtually no one in his time believed this). The second claim (the “plausibility argument”) would have sounded almost preposterous to his contemporaries. Only the second claim explains the apparently anomalous features of the RRC and the reason why he is led to praise plutocracy in Rome. Let me first explain the possibility argument. The goal of this argument is to demonstrate that countries with features that make them unlikely candidates to be republics – size and heterogeneity – can be republics. Rousseau takes Rome as a clear-cut example of a republic with such features. His first point is simply to show that since an example of a large and diverse republic existed in the past, it can happen again. It is a commonsense argument from existence to possibility. It is worth noting in which sense Rome is considered a republic for the sake of this argument. Indeed, Rousseau is interested in demonstrating that Rome was a republic in his understanding of the term (i.e., as a polity based on absolute popular sovereignty and defending freedom for all its citizens) and not just in the less demanding sense of Montesquieu (a form of government in which the people or only a part of the people have sovereign power; SL I.2.2). As we will see, Rome exhibited features that could have denied it a republican title. In particular, it lacked a clear distinction between government and sovereignty, one of the main defining criteria of republics for Rousseau (SC III.1.2–3). Despite its numerous political and social problems, Rome had a constitutional order based on popular

236 genevie` v e r o u s s e l i e` r e sovereignty, i.e., one in which the people was the bearer of sovereignty. Rousseau insists that sovereignty was undivided, and that the people were the only bearer of sovereignty. Contrary to the neorepublican tradition of which Rome is usually taken to be the ancestor, Rousseau does not describe the Roman Republic as SPQR – Senatus Populusque Romanus. In this sense, and contrary to the dominant interpretation of the Roman tradition, Rousseau described Rome as a government based on absolute popular sovereignty, and not a mixed constitution. The Roman Republic was a particularly judicious example for Rousseau because it exhibited the features of the most controversial aspects of his theory: that there should be no representatives of the sovereign. “It is quite striking that in Rome, where the Tribunes were so sacred, no one ever so much as imagined that they might usurp the functions of the people, and that in the midst of such a great multitude they never attempted to pass a single plebiscite on their own authority alone” (SC III.15.6). Rome is the ultimate historical proof that it is possible for a large country to be a republic, that is, one in which the people, and not its representatives, had the legislative power. The Roman Republic was also a great example for Rousseau because it displayed the trait that he rated the most important for a republic: that all citizens be protected against domination, that is, that all citizens’ freedom be guaranteed. The only reason individuals would want to enter a social compact is if they could be guaranteed to be as free as they were in the state of nature (SC I.7.4). In this regard, the Roman Republic surpassed all other states. Regardless of any shortcomings in their institutions and practices, “the Romans distinguished themselves above all peoples on earth by the government’s regard for private individuals, and its scrupulous care to respect the inviolable rights of all members of the state” (DPE 18). That Rome exhibited both an unprecedented size and heterogeneity is incontestable for Rousseau. It came to be the capital of the world and spanned a large number of territories with peoples of different cultures, languages, mores, and religions. Yet it was able to

on the possibility of a modern republic 237 protect all its citizens’ freedom and have a popular sovereign without representatives. Rousseau’s detractors cannot argue that his theory is impractical for large modern states because it lacked historical precedent. The Romans, “the freest and most powerful people on earth” (SC IV.4.2), are blatant proof that a large republic, in Rousseau’s sense, can exist.

realism and the polish question I have argued so far that the presentation of the Roman institutions in the Social Contract aims to show the possibility for the principles of the treatise to be applied in large countries. McCormick, however, does not deny this point (McCormick 2007, 10). It is, in fact, the basis of his interpretation. Paying attention to Book IV and its realist implications, McCormick contends, reveals the hidden truth of the principles of Book I–III: that, in practice, aristocracy, or even plutocracy, is necessary for Rousseau’s version of republicanism. It could indeed be argued that Rousseau uses the Roman republic to make a case for the importance of realism, and all the compromises it implies, for political success. The epigraph of the Social Contract – foederis aequas Dicamus leges (let us set equal terms to the truce) – could be used for such an interpretation. Far from coming from the rich literature of Roman republican authors, it is taken from the Aeneid, Virgil’s mythical history of the foundation of Rome, written to provide a glorious ancestry to Augustus. It describes a moment of compromise where King Latinus, sure of his defeat in front of Aeneas’ army, offers a truce. This epigraph is rather puzzling from a republican point of view, as it posits the existence of the contract (foedus) as arising from unequal relations of power. Yet it may make more sense if seen as Rousseau’s will to inscribe his work under a realistic perspective, one in which institutions always arise from imperfect circumstances and already-existing power relations. In recent years, some have come to recognize Rousseau’s considerable concessions to realism (Grant 1997; Putterman 2001; Schaeffer 2010). More often than Book IV of the Social Contract, the

238 genevie` v e r o u s s e l i e` r e Considerations on the Government of Poland is considered an illustration of Rousseau’s realistic streak. At a first level, the Considerations confirms Rousseau’s ambition to adapt the principles of the social contract to a large state. While he acknowledges how detrimental large size is when it comes to making a republic, he also emphasizes the possibility of circumventing the issue, through a series of institutional devices (such as federalism). The Considerations proves that Rousseau did not want to reduce his theory to small city-states. Throughout this text, he mentions the Social Contract (e.g., Poland 199, 200, 203, 209, 210, 255) as providing the principles he interprets in order to provide more specific constitutional recommendations for Poland. Poland and the Roman Republic are repeatedly compared (Poland 182, 220), showing that both examples illustrate his ambition for large territories. Yet, on a second level, the Considerations, just like Book 4 of the Social Contract, presents a series of recommendations that appear in contradiction with the first books of the Social Contract, even though they are presented as its applications (Grant 1997; Schaeffer 2010). There, Rousseau had not only “taken men as they are” (SC I.1), but, in this embrace of realism, had also adapted his principles to their specific circumstances, sometimes to the point where it could be difficult for readers to recognize them. Examples of such corruption of his principles seem to abound in the Considerations. Only the nobles are part of the sovereign, even though Rousseau acknowledges that this is against both his principles and the laws of nature (Poland 196). Furthermore, the Diet is not an assembly of the people (be it reduced to the nobles) but is composed of representatives. While luxury has to be limited, Rousseau also admits the inevitability or even desirability of the nobles leading the people and the importance of distinction (Poland 186). Rousseau advocates the necessity for the nobility to show their superiority in arms because “it matters, even more than one might think, that those who are someday to command others should from youth on prove themselves their superiors in every respect, or at least that they try to do so” (Poland 187).

on the possibility of a modern republic 239 All these statements could fuel McCormick’s claim that Rousseau endorses a form of aristocratic republicanism. Comparing his writings on Poland and Book IV of the Social Contract thus confirms Rousseau’s ambition for his theory to be applied to large countries. Yet it does not alleviate the concern that Rousseau may be torn between abstract egalitarian principles and realistic aristocratic compromises.

the a fortiori argument The possibility argument does not solve the puzzle of Rousseau’s apparent endorsement of an aristocratic form of sovereignty in this text. Let us now turn to the a fortiori argument that the RRC are unraveling at the same time. I contend that it proves a second crucial point: that Rousseau was not endorsing any of the features of the Roman Republic – slavery, plutocracy, confusion of sovereignty and government, and so on – that McCormick attributes to him. An a fortiori argument is an argument according to which, given two objects A and A−, with A− exhibiting fewer positive features to achieve Q, then it should also be true that A can achieve Q. What I contend is that Rousseau proposes a bold and counterintuitive thesis in these chapters: not only that Rome should be taken as an imitable example, but further that it should be easier for a large modern state to become a republic than it was for the Romans. That the RRC present an a fortiori argument has not been defended in the scholarship, in part because it is obscured by Rousseau’s occasional presentation of Rome as an exceptional, possibly inimitable, example. Yet, in the RRC, he follows a different line. We have seen that for the possibility argument, he merely needed to present the Roman Republic as large and diverse. However, he goes out of his way to describe other features of Rome, some that may in fact imperil its very status as a republic. The undesirability of Rome’s features and circumstances is remarkable if compared to Rousseau’s preferred features for the Republic described in the epistle dedicatory of the Second

240 genevie` v e r o u s s e l i e` r e Discourse. The great Rome, for all its authority and glory bestowed by the most respected republican endorsements, pales in comparison to Geneva. A state’s origins are key, according to Rousseau, in order to determine its likelihood of becoming a free state. Consider Rome’s origins: a mere association of brigands, a far cry from the wellestablished and glorious origin of a republic such as Geneva (Narcissus 103; Poland 3:957). The beginning of Rome could be saved only by the legal reforms of Numa, the true founder of Rome (Poland 3:957). Beyond this, Rousseau describes the Roman people as having been “degraded by slavery and the ignominious labors the Tarquins had imposed on it” (SD 115–16). Coming from the Tarquins’ oppression, the Romans exhibited none of the virtues for which posterity will praise them. Rousseau insists that the best circumstances for a republic are those of Geneva, and certainly not those of a people coming from a history of slavery and tyranny. Beyond its origins, Rome grew following a logic of expansion and military conquest. Rousseau is highly critical of Rome’s expansionist policy. “Nothing is as downtrodden or miserable as conquering peoples, and even their successes serve only their miseries” (DPE 3:268).15 In this warning about the fake glory associated with conquest, it is difficult not to see a thinly veiled allusion to the Roman Republic as it is described in the RRC: We have seen states so constituted that the necessity for conquests entered into their very constitution, and in order to maintain themselves, they were forced to grow endlessly. Perhaps they congratulated themselves greatly on this happy necessity, which nevertheless showed them, along with the limits of their size, the inevitable moment of their fall. (SC II.9.6)

A growing republic thus confronts the intractable problem of its size, and, with it, the likely prospect of its demise (Poland 3:970). Due to this constant expansionism that came to be a defining characteristic of Rome, the Republic was not just large – it was constantly growing and having to integrate increasingly diverse languages, cultures,

on the possibility of a modern republic 241 religions, and mores. By contrast, the best republic, Rousseau notes without any ambivalence, is a small one like Geneva, a Republic without ambition of conquest where individuals know each other (SD 3:113). The RRC describe how the constant influx of foreign people endangered the Republic’s cohesion (SC IV.4.5). Migrations disrupted the balance between rural and urban areas that were so crucial, according to Rousseau, for maintaining republican virtues. The migration of foreigners intensified the growth of cities already overwhelmed by the migration of freedmen from the countryside (SC IV.4.11). All in all, the disequilibrium between the city and the countryside was bound to constantly grow. In Rousseau’s analysis of the ideal conditions of a republic, this is nothing short of catastrophic. Furthermore, Rousseau describes Rome as being born out of the division between patricians and plebeians, one which was to plague the Republic’s existence (SC III.10 fn). This division created the necessity to imagine intermediary institutions and placed it constantly on the verge of upheavals. Only the creation of the tribunes, Rousseau notes, was able to counteract the hereditary aristocracy of the beginnings of Rome and establish “a genuine democracy” (SC III.10 fn). Rome thus exhibited almost all the most challenging circumstances for a republic that one could imagine. It is all the more surprising that it was a form of direct democracy, that is, one in which the people were not only in charge of the legislative power but also held most of the executive and judiciary power. It is striking that Rousseau chose to describe Rome this way, given that it is more commonly described as an example of a mixed constitution, sharing the power between the comitia and the senate. Furthermore, given its large size, Rome would seem to be best suited to be a monarchy according to his own principles defended earlier in the Social Contract (III.8). A direct democracy would seem to be the least appropriate kind of government for such a large territory.

242 genevie` v e r o u s s e l i e` r e If Rome could create and maintain stable direct democracy under such challenging circumstances, then surely, this a fortiori argument suggests, it should be simpler for a large and diverse country with better circumstances to take the easier form of an aristocratic or monarchical republic.

the fitness principle, or why rousseau is not a plutocrat The final element required in order to solve the RRC puzzle and understand Rousseau’s apparent praise of plutocracy is a key principle of his theory: what one could call the “fitness principle.” According to this principle, governments and institutions must be adapted to the particular circumstances and mores of a country, so that even though we can imagine an ideal government related to ideal circumstances, the best government in each case depends on the particular circumstances of each state (SC II.11.4). Rousseau summarizes this principle at SC III.3.7: “There has always been much argument about the best form of government, without considering that each one of them is the best in some cases, and the worst in others.” This principle is developed at length in chapter III.8, which owes much to Montesquieu.16 The fitness argument can be ontologically described, as Williams argues, as a form of “indeterminate transcendent constraint” (Williams 2010, 526). Rousseau combines general and transcendent principles of justice with a form of indeterminate application: while principles are unchangeable and true regardless of circumstances, they remain vague enough that the institutions and policies that implement them greatly vary. This political ontology allows Rousseau to escape relativism yet embrace a fair degree of institutional flexibility (Williams 2010, 535). No specific policy or institutional design has truth in itself – rather transcendent standards are right regardless of circumstances, whereas policies and institutional designs are merely the specific applications that fit the circumstances,

however

favorable

or

unfavorable,

particularly situated in time and place.

of

communities

on the possibility of a modern republic 243 Rousseau insists in the Social Contract that the fitness argument is not just a matter of “different” circumstances, but also the degree to which they are imperfect or corrupted, that is, the extent to which they diverge from what the ideal circumstances would be for the best government. He posits that when circumstances are bad (for instance when a people has been corrupted), government has to be adapted: “For often the government which is in itself the best will become the most vicious if its relations are not adjusted to the defects of the body politic to which it belongs” (SC III.1.22). The fitness principle matters for interpreting the RRC because it means that when Rousseau praises the fit of some political principles, it does not imply that these principles are good simpliciter, but rather that they are the best choice relatively speaking, that is, given the circumstances. This is true for a series of policies and institutions that Rousseau harshly criticizes: for instance, the existence of representatives in Poland or the secret ballot at the twilight of the Roman Republic (SC IV.4.35–6). Just as Rousseau does not condone military expansion, slavery, cultural heterogeneity, and the absence of public education in Rome, he also does not condone its inegalitarian voting system. Rather he argues that this system is necessary for the Republic to thrive in the difficult circumstances in which it found itself, including the many divisions created by its multiculturalism, the newness of its citizens, and its constant conflict between patricians and plebeians. How the fitness argument to bad circumstances applies in the case of the Roman Republic is presented in the “Epistle Dedicatory” to the Second Discourse, where Rousseau explains why he would prefer to be born in Geneva rather than in the Roman Republic, despite the latter being historically “the model of all free people”: Even the Roman people, that model of all free peoples, could not govern itself on emerging from the Tarquins’ oppression. Degraded by the slavery and the ignominious labors the Tarquins had imposed on it, it was at first but a stupid populace that had to be

244 genevie` v e r o u s s e l i e` r e handled with care and governed with utmost wisdom; so that these souls, enervated, or rather numbed under the tyranny, as they little by little grew accustomed to breathe the salutary air of freedom, might gradually acquire that severity of morals and that proud courage which eventually made of them the most respectable of all peoples. (SD 115–16)

The RRC develop some possible institutions – the ones that Rome tried – that maintained the cohesion of its social body. These institutions insisted on the way of preventing the degeneration of a fragile large and diverse republic. But the aristocratic, or even plutocratic form of voting (and therefore of sovereignty) is not to be imitated for any country that could avoid it. Rousseau points to this interpretation by writing that the division by centuries according to wealth was simply a vice and that only the rural mores of the Romans and their taste for agriculture could compensate for it: “It has to be stressed that, in Rome, morals and the censorship, stronger than this institution, corrected for its vice and that some rich men found themselves relegated to the class of the poor for having made an excessive display of their riches” (SC IV.4.19). His rejection of Rome’s plutocratic tendency is confirmed in the Writings on a Constitution for Corsica, where he condemns the Roman Republic for failing to limit patricians’ accumulation of land (C OC 3:937). Rousseau is clear that plutocracy is only instrumentally good for reasons of fit in Rome, and not a general model to be imitated.

the general will and the formation of solidarity If I am right about this argument, we are left with a new task: determining what ought to be taken as a model in the example of the Roman Republic, if it is not its plutocratic form of sovereignty. What is to be imitated, I contend, is not its particular policies but the principle that any large and diverse nation has to constitute itself into a united people for the general will to prevail. The reader is

on the possibility of a modern republic 245 invited to grasp the general standard that Rome followed, rather than the particular policies that it chose for this purpose. “The public order most favorable to the good constitution of the state” (LM 6) is thus to be deduced, not by direct imitation or mere copy of particular institutions, but through “the means of comparison” (LM 6). What matters is thus that we understand what was so successful in the case of Rome that it enabled it to be a free nation despite all its adverse circumstances. This success, I argue, comes from the capacity of the Romans to constantly generate solidarity within their divided and heterogeneous state. Early in the Social Contract, Rousseau presents two distinct voting systems: It is important that, in order to have the general will expressed well, there be no partial society in the State, and every Citizen state only his own opinion. Such was the single sublime institution of the great Lycurgus. That if there are partial societies, their number must be multiplied, and inequality among them prevented, as was done by Solon, Numa, Servius. These are the only precautions that will ensure that the general will is always enlightened and that the people make no mistake. (SC II.3)

In small homogeneous states, the general will can prevail by the existing unity of the people. In large and divided states, like Rome, Rousseau proposes an opposite solution, that is, a voting system based on the multiplication of voting divisions. This solution is well illustrated in the RRC, where he favorably regards the different waves of divisions of the Roman people. At a first level, one could therefore see the Roman voting rules as illustrating an efficient institutional design for large and diverse societies. What should be imitated by this type of political community is the voting system based on multiple divisions. The reason, it seems, could foresee Condorcet’s argument: that there would be a higher chance for the people to be able to reach the right solution, that is, express the general will, if there are many divisions within the

246 genevie` v e r o u s s e l i e` r e people, rather than, in the case of Rome, a simple dual division between patricians and plebeians.17 While Rousseau surely has something like this in mind, the multiple voting systems of Rome do not aim simply at multiplying divisions. Rather, Rousseau emphasizes the importance of the equilibrium between cities and rural areas, which is central to keep the Roman unity. The very proofs of Rome’s success (the accession of slaves and conquered nations to freedom) constantly perturbed this equilibrium on which its unity was built from its origins. While the reforms of the voting systems illustrate the importance of division in the case of large countries, the particular reforms of Rome more generally focused on the necessity for the population to be integrated in a harmonious whole. Rome was capable of maintaining its cohesion through a series of social reforms that enabled what later republicans call its “solidarity,” that is, the belief of individuals that they belong to the social body as an integral part of their persons.18 This is why in The Constitution of Poland Rousseau focuses on the success of Rome as being due to this solidarity, itself the ground of patriotism: “Numa was the true founder of Rome. If all Romulus had done was to assemble some brigands whom a reversal could scatter, his imperfect work could not have withstood the test of time. It was Numa who made it solid and lasting by uniting these brigands into an indissoluble body, by transforming them into citizens” (Poland 181, my emphasis). In this passage, Rousseau points toward Book IV of the Social Contract as showing the same importance of social bonds.19 The importance of solidarity between the parts is particularly visible in some passages of the RRC that are otherwise incomprehensible. At IV.4.25, Rousseau writes that “this admirable institution of Patrons and Clients was a masterpiece of politics and humanity, without which the patriciate, so contrary to the spirit of the republic, could not have survived.” It is difficult to understand why Rousseau, who was so adamantly against dependence, would praise clientelism, without understanding that the ultimate goal of clientelism, in the particular case of Rome, was to create the possibility for two opposite classes of

on the possibility of a modern republic 247 the people to merge, cohabit, and create connections rather than divisions. Clientelism is a despicable practice that generates domination – except when it is absolutely necessary, as in the case of the ever-divided Roman people, to maintain bonds of sociability. It also becomes easier to understand why Rousseau seems so inclined to agree with the Roman reformers that the role of the poor and new citizens should be downplayed. Rome maintained its cohesion because it was virtuous and patriotic. But that would not have been enough. It was necessary to build a nation with the unity required for the formation of a general will. For Rousseau, following the republican tradition, it is unreasonable to ask freedmen and newly conquered peoples, especially individuals coming from despotic countries, to exhibit the general will. Rousseau’s assumption is that new citizens need to become assimilated. He holds the classical republican theory that freedom cannot immediately be used wisely. It requires political experience. In that sense, for him, freedmen and foreigners ought to learn how to be free. These new peoples can learn to become “worthy of freedom” by being given the right to participate in voting, but also by being guided by more enlightened parts of the population. Rousseau thus argues that a series of institutions will be necessary to foster solidarity – especially in large states. The RRC are thus far from focusing only on voting districts and rules. They show how the censorship and the tribunate serve the same goal of maintaining solidarity in a diverse country. This is why the penultimate chapter of Book IV does not praise a specific institution of Rome, but a new kind of institution: civil religion. While Rome had been able to maintain its wholeness in conquest through its integration of a great variety of religions (and thereby creating European unity),20 Rousseau suggests another (maybe) more adequate solution for modern states: a civil religion that would express “sentiments of sociability” (IV.8.32). This is how I understand the successive waves of reforms of districts and their related forms of assemblies: not as a mark of Rousseau’s antipopulist tendencies, but rather as his declaration

248 genevie` v e r o u s s e l i e` r e that, for the sake of the freedom of the whole, the solidarity of the body politic trumps, if necessary, the principle of equality in sovereignty. However, as the form of the a fortiori argument shows, Rousseau suggests that his European contemporaries, with circumstances more favorable than Rome’s, can hope to have not only freedom and solidarity, but arguably equality, since true liberty cannot exist without it.

modern states, commerce, and geneva It is striking that the Social Contract has little to say about an obvious objection to its a fortiori argument, according to Rousseau’s theory itself: that the spirit of commerce was an unprecedented obstacle to republics in modern times. Indeed, throughout his writings, Rousseau argues at length that his epoch is characterized by the rise of commerce, the pursuit of self-interest, and the love of wealth accumulation. Montesquieu himself had argued that the moderns could not follow the ancients’ virtuous practice of self-sacrifice because they had embraced the new spirit of the time. Does this mean that the moderns are incapable of realizing republics, not so much because of the size of modern states, but simply because commercial peoples lack the virtue necessary for republican governments? Rousseau does not consider this point in the last book of the Social Contract, probably for the simple reason that it would have hindered his demonstration of the plausibility of the realization of republics in large countries. At the very least, it would have required another long argument concerning the way the spirit of commerce had to, and could, be transformed in modernity. The Social Contract, famously laconic about the specific economic policies necessary for the realization of republics, avoids this demonstration. This objection can be answered by considering Rousseau’s own reflection on the Social Contract in the Letters Written from the Mountain. The principles of the social contract, he argues, are taken straight from the constitution of Geneva, as Rousseau imagines it: the real inspiration of the treatise is the small commercial Swiss city, and

on the possibility of a modern republic 249 not a large agricultural empire (LM 6 OC 3:809). This is not, I contend, a contradiction of the argument I have been making here. On the contrary, it confirms Rousseau’s ambition for the Social Contract to have an application in modern commercial Europe, one he reiterates in the Letters Written from the Mountain (LM 6 OC 3:810). It shows that for him commerce need not be an obstacle to republicanism, as the existence of Geneva proves. Recognizing that the Genevans are “merchants, artisans, bourgeois” (LM 9 OC 3:881) is acknowledging that their republics need to use policies and institutional design different from Rome or Sparta: they need “particular maxims” for their moral circumstances, in which the spirit of commerce rules (LM 9 OC 3:881). Commerce, therefore, is surely a major obstacle to the existence of modern republican states. But it is not insurmountable. Both in his writings on Corsica and Poland, Rousseau aims to eradicate or channel its consequences (love of luxury, inflation of amour-propre, dependence) as much as possible. The other option, as suggested in the case of Geneva, is to adapt institutions and policies to its existence. In all these cases, the general idea remains the same: for a political community – small or large, agricultural or commercial – to be free and capable of following their general will, it needs to find the specific institutions that will keep its people united in a harmonious whole.

conclusion The a fortiori argumentative structure of Book IV is the key to the puzzle of the Roman Republic Chapters. There is no contradiction between the abstract egalitarian principles of Books I–III and the presentation of the Roman Republic in Book IV. Instead, I have shown that, through the counterintuitive example of the flawed institutions of Rome, Rousseau aims to demonstrate that the existence of large modern republics is plausible. I have argued that Rousseau does not want his readers to take the specific institutions of the everexpanding, slave-owning, and plutocratic Rome as a model to copy tel quel without reflection. Rather, we should meditate on the high standard of freedom that Rome was able to achieve through and

250 genevie` v e r o u s s e l i e` r e despite its greatly flawed institutions. For Rousseau, we should be able to realize freedom for ourselves in our own time, granted that we take seriously the abstract principles of the Social Contract, reflect on different institutional possibilities, and give our country the specific institutions that its circumstances demand.

notes 1. For notorious alternative interpretations, see Berlin 2003 and Talmon 1952. For an analysis of this reception of Rousseau’s thought, see Brooke 2016c. 2. References to Rousseau’s work will be given as follows: FD = First Discourse; SD = Discourse on the Origin of Inequality; SC = Social Contract; E = Emile; FP = Fragments politiques in OC III; DPE = Discourse on Political Economy; PN = Preface to Narcissus; Poland = Government of Poland; LM = Letters from the Mountain; Geneva = Geneva Manuscript; PPP = Jugement sur le projet de paix perpétuelle de l’Abbé de St Pierre in OC III. The Oeuvres complètes are referred to as OC. Editions used: Oeuvres complètes, vol. III (Paris: Gallimard, Pléiade, 1964); The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 2010); The Discourses and Other Early Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 2012). 3. Among the few exceptions, see McCormick 2007; Williams 2014, 171–204; Arena 2016. 4. See Derathé’s comments in his edition of the Social Contract, in Rousseau, Oeuvres complètes, pp. 1494–5, and Cousin 1964. 5. The reference to the “Roman populace” seems to refer to Book III.12 instead. The summary does not develop the specific voting system of the Roman Republic or explain why Rousseau would dwell on this case. 6. For an overview of this debate, see Levy 2006. 7. Levy 2006; Williams 2014, 269. See also Douglass 2015a, 202: “Down to his last autobiographical writings [Rousseau] affirmed that what he proposed ‘had been intended only for small republics.’ Rousseau offered little solace for modern corrupt societies, since his republican vision was never intended for those states where commerce, luxury, and inequality were rife. . . . Rousseau’s own political proposals did not constitute a possibility for modern states once beset with luxury and entrenched inequality.”

on the possibility of a modern republic 251 8. See also his Writings on Abbé de Saint-Pierre, OC 3: 644–64. 9. See Edelstein 2009. 10. See Levy 2006; Rousselière 2024. 11. Harcourt 2011. 12. Spector 2006. 13. See Tuck 2016 and Rousselière 2024. 14. I agree with McCormick on this point (McCormick 2007, 9). 15. See also the Judgment on Abbé de St Pierre’s Project on Perpetual Peace (PPP 3:593). 16. Rousseau recognizes his debt to Montesquieu in SC II.11.4. On the relation between Montesquieu and Rousseau on this question, see Williams 2010. 17. For a Condorcetian interpretation of the general will, see Grofman and Feld 1988. For such an argument opposing the models of Sparta and Rome on voting divisions, see Oprea 2019. 18. On solidarity and republicanism, see for instance Durkheim 2014. 19. “The same spirit guided all ancient lawgivers and their institutions. All of them sought bonds that might attach the citizens to the fatherland and to one another, and they found them in distinctive practices, in religious ceremonies which by their very nature were always exclusive and national (see the end of the Social Contract)” (Poland 180). 20. On this point, see Rousseau’s comments on the Abbé de St Pierre.

12 Rousseau’s Case against Democracy Céline Spector Translated by Matthew W. Maguire

Rousseau holds a special place in the history of modern republicanism.1 On one side, Philip Pettit denounces his “populist” vision of republicanism and refuses to place his conception of the absolute sovereignty of the people at the core of the republican tradition. Even if Rousseau understood freedom as nondomination, he did not stand against the tyranny of the majority and did not provide a right of resistance to the citizenry.2 On the other, certain more radical democrats such as John McCormick deplore Rousseau’s timid vision of democracy and his residual elitism as the polar opposite of authentic populism. As his analysis of Roman institutions shows, Rousseau scorns majoritarian procedures and accommodates some privileges of the rich. He advocates in Book IV assemblies in large republics that heavily weigh votes in favor of the wealthy – assemblies that perform both sovereign and government functions.3 Finally, recent scholarship has often read Rousseau in the light of contemporary theories of democracy. Scholars have identified the importance of continuous popular control in order to avoid a government’s slide into tyranny,4 and they made Rousseau the inventor of a new, modern form of democracy.5 James Miller even suggests that the citizen of Geneva disguised his own preference for democracy: since the Golden Age was, for Rousseau, an era of freedom and democracy, it would be impossible to admit that the Social Contract dismissed it completely. Democracy should generally be considered as the best form of sovereignty.6

252

rousseau’s case against democracy 253 But the issue remains: incontestably republican, was Rousseau a true democrat? His distinction between sovereignty and government seems to support republicanism, to the detriment of democracy. If democracy is defined as a government in which the sovereign entrusts the government to the entire people, Rousseau cannot be considered a champion of democracy. His declared reservations about democracy do not support Miller’s reading: while Rousseau did help awaken a new desire for democracy, he was not himself a democrat. His purpose in the Social Contract was not only to praise the Genevan regime in its Golden Age. Rather, Rousseau engaged with Geneva’s politics only insofar as it could serve his general theory of political right. His skepticism about democratic government in the Social Contract should thus be taken seriously.

democracy before rousseau When Rousseau wrote his political masterpiece, democracy was neither considered to be a desirable political regime, nor a viable one in modern states. Since Plato’s critique of democracy, many authors had tried to rehabilitate the power of the people and of citizen assemblies, but no important philosopher of the eighteenth century defended democracy as the best form of government. Quite the opposite, in fact – its faults were often emphasized. One of the most influential writers of the time, Montesquieu, was convinced that democracy was ill-suited for modern times. For him, a government is democratic if the people as a body have sovereign power and if the people alone make laws directly. In The Spirit of the Laws, democratic government is reserved in the main for ancient city-states like Sparta and Athens, or for republican Rome. Commercial republics like Holland or Italian city-states could certainly form either democratic or aristocratic republics, but without doubt monarchy was the dominant form of government that fitted large-scale states and the economic conditions of modernity. Democracy could exist only in a small territory with few inequalities because it relied upon political virtue. In England in the seventeenth century, democracy was unable

254 ce´line spector to take hold. Lacking civic virtue, Cromwell’s Commonwealth paved the way for a restoration of the monarchy (SL, III, 3). For Montesquieu, democracy thus seemed anachronistic, relegated to a bygone era. Before James Madison in Federalist No. 10, he considered that modernity supposed political representation, which had the advantage of selecting leaders. Elections should be synonymous with selection: “The great advantage of representatives is that they are capable of discussing public affairs. The people are not at all suited for it, which constitutes one of the great disadvantages of democracy” (XI, 6). Direct democracy, for Montesquieu, was flawed because it was immediate. It was a regime where the people, if they were not enlightened by a Senate, generally decided and acted blindly. Without its decisions being the outcome of reflective deliberation, the citizenry could find neither the appropriate moment nor the appropriate pacing for its decisions. In the Spirit of the Laws, representation was thus meant to substitute for the presence of the people by means of a competent elected class, whose representative task consisted in echoing and moderating the claims of the people. Montesquieu considered representative government as a “hybrid of democracy and aristocracy.”7 For him, as for Aristotle, a lottery was democratic, but selecting representatives was inherently aristocratic. On this view, the purpose of representation was to improve upon direct democracy by refining the interests and opinions of the people and preserving reason in popular deliberation.

from the second discourse to the social contract Despite Rousseau’s strong critique of representative politics, some of Montesquieu’s assessment remains in the Social Contract – yet not in the second Discourse, more indebted to the republican tradition. In the Discourse on the Origin of Inequality, Rousseau gave a positive account of democracy, far from the usual mistrust of the crowd. He refused to identify democracy with the uncheckable power of the people. If the different forms of government owed their origin to the differing degrees of inequality that existed between individuals

rousseau’s case against democracy 255 at the time of their institution, democracy remained closer to the state of nature, and thus to natural liberty and equality. Whereas in a monarchy or in an aristocracy, one man or several men being preeminent in power, wealth, or prestige became magistrate(s), democracy was formed among a people who had deviated less from a state of nature, and between those whose “fortunes or talents were less uneven” (SD 186). In this case, the supreme administration was retained in common. In the Second Discourse, Rousseau thus considered that democracy was the form of government that suited men the best, since magistrates and citizens were altogether subject to the laws, and the citizens tried to preserve their liberty without making slaves of their neighbors. Democracy was, according to Rousseau, a state of happiness and virtue where all the offices were at first elective and where the preference was given to merit or age. Yet democracy could not be stable in the long run: because elections had to be frequent, “intrigues arose, factions were formed, the parties grew embittered, civil wars flared up” (SD 186). In the course of history, democracy was therefore doomed to become an aristocracy or a monarchy. Magistrates became hereditary and contracted the habit of regarding their offices “as a family possession” and themselves as “the owners of the State”; finally, they regarded their fellowcitizens as their slaves and liberty was lost (SD 157). This was the sad fate of democracy; nevertheless, it did not alter the fact that this form of government, closer to nature, was considered the best. Yet in the Social Contract, a few years later, Rousseau became committed to a very different view of democracy. First, he turned away from the conjectural history of governments and from the account of their corruption. Instead, the principles of political right focused on sovereignty: the social contract was not any more a contract between citizens and their magistrates, but a form of political association – a social union by which a multitude became a people.8 Second, the Social Contract now seemed to exclude both democracy and representation – modern representation being a nonrepublican institution because it was a transfer of lawmaking

256 ce´line spector power.9 Rousseau argued that the deputies of the people could not be its representatives; rather, they were merely its agents. He defended a regime where the people exercised sovereignty by ratifying the laws, and government functioned best as an elected aristocracy that exercised such laws. As Rousseau understood it, popular sovereignty did not entail restoring the lottery, which Herodotus, Plato, and Aristotle had identified with democracy. According to Nadia Urbinati, Rousseau did not even defend a full-fledged participatory polis; he did not stand against delegated politics, especially in matters of government. Rather, he thought that positions requiring special talents had to be filled by election and performed by the few.10 Delegation had to be based on consent, since the will of the people was as such impossible to alienate. Focusing on Social Contract III.4, this essay explores Rousseau’s critique of democracy as self-government. To construe this view, I develop three arguments against the idea of a democratic republic: democracy is bad in itself, since it identifies sovereignty and government (an argument derived from the principle of democracy itself); its conditions of existence are extremely demanding (a circumstantial argument); and finally, it is ill suited to the human passions and hence proves to be deeply unstable (an existential argument).

sovereignty and government Book III of the Social Contract raises the question of the government after the formation of the Sovereign. Rousseau makes the government subordinate to and the “minister” of the Sovereign (SC III.1, 85). He defines regimes in the classical manner, according to the number of officeholders in the executive administration. In this way, democracy is the regime where the Sovereign entrusts “the charge of government to the whole people or to the majority of the people, so that there are more citizens who are magistrates than citizens who are plain private individuals” (SC III.3, 91). Rousseau depicts a continuum according to the executive power’s degree of

rousseau’s case against democracy 257 concentration. Government is a function taking different relative values according to the ratio between the total number of citizens and of magistrates. Yet joining legitimacy and efficacy is a daunting challenge. On the one hand, legitimacy can only proceed from the general will, to which all particular wills must be subordinated. On the other hand, government is all the more effective when the number of officeholders is smallest. According to this rationale, chapter 2 of Book III defines the most suitable government: the one that concentrates the particular will and the will of the political body in a single man. Here an irreducible tension appears. While the general will can only be legitimate when it extends to the totality of the political body, the government is most effective when it is as restricted as possible. The concrete conditions for the exercise of power presuppose a logic opposite to the one pertaining to the exercise of sovereignty. Yet all the difficulty consists in reconciling the strength of the political body with the rectitude of its exercise as legislative power. The more numerous the magistrates, the more their collective will approaches the general will and the less strong the risk of corruption is – but their collective efficacy is thereby diminished. Therefore, Rousseau reconsiders the traditional question about forms of government: among democracy, aristocracy, and monarchy, which one can be considered as the best regime? In chapter 3 of Book III, Rousseau takes up the relativist principle established by Montesquieu by correlating the form of a polity’s government with the extent of its territory: “There has always been much disagreement about the best form of government without considering that each one of them is the best in some cases and the worst in others” (SC III.3, 92). In fact, Book VIII of The Spirit of the Laws stipulated that “the natural propensity of small states is to be governed as republics” whereas the middling-sized states were more propitious to monarchy, and the large ones to despotism (SL VIII, 20). For Montesquieu, this law of history rested upon the “principles” or dominant passions that permitted each government to preserve

258 ce´line spector itself. In this way, democracy was supported by political virtue (love of the laws and of the country, of equality and frugality) that could only exist in a small territory, where the public good remained close to the preoccupations of individuals, and where individual minds were not turned away from the fatherland (SL VIII, 16). While borrowing from Montesquieu his assessment of the proper scale of each regime, Rousseau inflects this principle according to his own method, making use of a mathematical formula that proportions the concentration of power to the number of citizens: “if, in the various States, the number of supreme magistrates be inversely proportional to the number of citizens, it follows that in general, democratic government suits small states, aristocratic government medium-sized ones, and monarchy large ones” (SC III.3, 92). The study of each form of government and the analysis of their relative advantages follows this claim. Nonetheless, democracy could have a decisive advantage in Rousseau’s theory. This form of government seems to confer the maximum of power upon the people. Moreover, the people who make the law should know better how to interpret and apply it. And finally, the republican form of the state seems to agree by its nature with democracy. As much as a republic, a “true democracy” exists only when the people are constantly assembled to attend to public affairs. In the Letter to d’Alembert, Rousseau identified republicanism with democracy: “in a democracy … the subjects and the sovereign are simply the same men considered under different relationships.”11 In the Social Contract itself, Rousseau understands democracy to possess the advantage of simplicity, since the people, as holders of the legislative power, can, by an act of institution, constitute a body that emanates from themselves. As Hobbes had observed in De Cive’s analysis of original democracy, it is a surprising quality of the political body that it can achieve a “sudden conversion of sovereignty in democracy.” Rousseau follows this line: in this case, “by a new relation of all to the whole, the citizens, becoming magistrates, move from general acts to particular ones, and from the law to

rousseau’s case against democracy 259 its execution” (III.17, 120). For example, in England, the House of Commons, usually the sovereign Court, can constitute itself in committee to debate current affairs. This conversion of sovereignty into government is at the heart of democracy’s institutional apparatus. As Hobbes would suggest, all forms of government proceed from this original democracy. Rousseau mostly agrees with Hobbes’ claim: Such is the distinctive advantage of democratic government that it can be established in fact by a simple act of the general will. After which this provisional government either remains in office if such is the form that is adopted, or it establishes in the name of the Sovereign the government prescribed by the law, and everything is thus in order. (SC III.17, 121)

Rousseau’s argument in the Social Contract therefore comes as a surprise. Far from being the best form of government, democracy is the worst. At least, it does not suit a people comprised of men. The argument of the Social Contract proceeds through three stages. Rousseau provides three successive reasons that invalidate democratic regimes: (1) they are bad in themselves, by creating conflicts of interest, and by generating partisanship, indeed corruption; (2) they are almost impossible actually to put into practice, given that the conditions they assume (variously historical, geographic, and economic) are rare and difficult to combine together; and (3) they are inaccessible to humanity and could suit only a people of gods. Admirable in principle, self-rule is almost impossible to implement.

democracy as “government without a government” First, the apparent advantages of democracy are counterbalanced by its intractable flaws. If the legislative power belongs to the people, “the executive power cannot belong to the generality of the people in its Legislative or Sovereign capacity” (SC III.1, 84). The identification of the sovereign and the government negates the function of the government, leading to, so to speak, “a government without

260 ce´line spector a government,” that threatens sovereignty itself (SC III.4, 93). For even if it depends entirely upon the will of the Sovereign, the government must form a body provided with a real life, a “particular self, a sensibility common to its members, a force, a will of its own that tends to its preservation” (SC III.1, 88). The existence of this body distinct from the state, which Rousseau also calls “the prince,” presupposes assemblies, councils, laws, titles, and privileges. Yet the worst risk is the corruption of the people, comprising the government, by particular matters. It preoccupies him constantly: “Nothing is more dangerous,” writes Rousseau, “than the influence of private interests in public affairs” (SC III.4, 93). The law, to be just, must issue from all and apply to all. The general will, to be always right, “constant, unalterable, and pure” (SC IV.1, 125) must always rule the people as a body, and never only a part of the people, or rule upon a particular matter – without these commitments, its impartiality would be called into question. The Social Contract, which takes men as they are, cannot pass over in silence the inherent risk of abuse in any exercise of executive power that makes decisions by “decrees” and therefore risks the corruption of the people. The utopian character of democracy follows immediately from Rousseau’s conviction that “a genuine democracy in the strict sense of the term never did and never will exist” (SC III.4, 93). The assertion is paradoxical: certainly, what Rousseau calls “democracy” does not correspond to historical democracies such as Athens, which he viewed as an aristocracy of rhetoricians. Unlike Sparta, Athens constitutes a foil for Rousseau, for there, the people legislated specifically upon particular matters (SC II.4, 64). But other historical instances of democracy, such as Sparta, the Roman Republic – indeed Calvin’s Geneva – are not mentioned here. This comment is puzzling. It is all the more curious that Rousseau deems direct democracy impossible, and yet elsewhere he asserts that to assemble the people is only an obstacle in the imagination of modern peoples, who are already slaves (SC III.12, 113). In his unfinished Constitutional Project for Corsica, Rousseau even writes

rousseau’s case against democracy 261 that all decay in government occurs whenever one separates the body which governs and the body that is governed – which explains Rousseau’s preference for popular sovereignty. In the Social Contract as well, Rousseau seems to consider delegation of executive power as second best, for pragmatic reasons: it is impossible to maintain the people constantly assembled, each having to go about their business. Yet he clearly gave us good reason to think that as soon as a people grows, a government is needed. That the people are sovereign does not imply that the citizenry should deliberate on the particular matters of government. Rather, they must entrust the executive power to the management of magistrates, who in turn are only “officers,” at all times revocable by the Sovereign (SC III.18, 121). In this case, the delegation of power is in no way alienated12 Ratification defines the form of participation proper to the people: the citizenry is sovereign in the act of approval or refusal and should appoint and dismiss its trustees whenever it pleases. But the assemblies of the people should not govern. Whereas in the second Discourse, Rousseau was wary that pure democracy would turn into aristocracy and finally insensibly into tyranny as the original community grew and freedom was lost, his anxiety about the general tendency of government to usurp sovereignty did not lead to a revaluation of democracy in the Social Contract. In his political masterpiece, Rousseau’s first assertion therefore bears upon the mode in which executive power is exercised. Direct democracy is chimerical: “it is against the natural order that the greater number govern and the smaller number be governed” (SC III.4, 93). In the present case, if democracy appears unnatural, that is because it is impossible that the majority govern the minority while continuously deliberating. Hence the people will have to create, to be more effective, “commissions.” In a realistic manner, Rousseau emphasizes that democracy is likely to transform itself into oligarchy.

262 ce´line spector

the geographical, historical, and economic conditions of democracy A second paradox appears when Rousseau sets forth the conditions of possibility for democracy. These include geographical conditions (e.g., a very small state where the people can easily assemble and where each citizen can know all the others); conditions bearing upon mores (that must be pure and simple); and economic conditions (e.g., the suppression of luxury, equality in rank and fortune). Rousseau takes these conditions from The Spirit of the Laws, in which the supreme principle of democracy must be civic virtue. Rousseau endorsed this view. Yet he considered that love of the country should support all forms of government: This is why a famous author declared virtue to be principle of republics; for all these conditions could not subsist without virtue; but for want of drawing the necessary distinctions, this noble genius often lacked in precision, sometimes in clarity, and he failed to see that since the Sovereign authority is everywhere the same, the same principle must obtain in every well-constituted State, more or less, it is true, according to the form of the government. (SC III.4, 94)

Rousseau’s reference to Montesquieu must hence be clarified. In The Spirit of the Laws, political virtue differs from moral or religious virtue; it expresses the special requirements of democracy. It consists of the citizen loving the laws even though they are harmful to him, dedicating himself to the service of his homeland, and feeling an “unbounded zeal” for the public good (SL VI, 8).13 Political virtue “is a renunciation of oneself, which is always very arduous.” It can therefore only be sustained thanks to the omnipotence of education (IV, 5). The love of the country brings about a transposition of particular social passions (like greed or ambition) toward a single passion – that of affirming the general good and social norms, which in turn express love of equality and frugality. Minds must be turned toward

rousseau’s case against democracy 263 the same objects and nourish the same desires: “Each ought to have the same advantages, taste the same pleasures, and nurture the same hopes; something that can only be expected from a general frugality” (V, 3). The preservation of democracies demands the maintenance of public morality: “these consist not only of crimes that destroy virtue, but also omissions, flaws, a certain tepidity in the love of the nation, dangerous examples, the seeds of corruption; that which does not transgress the laws, but eludes them, that which does not destroy them, but weakens them” (V, 19). In Montesquieu’s argument, these moral conditions are themselves grounded in material ones, namely the size of the republic’s territory. As we have seen, the democratic ethos can only be preserved in a state of modest dimensions, where the common good is visible and dear to each citizen, where the individualist temptation is checked (VIII, 16). Montesquieu concludes that, without exception, democracy is excluded from large modern states, where economic development brings with it growing wealth and inequality (III, 3). Like Montesquieu, Rousseau opposes virtue and commerce. In the modern world, where the preoccupation of men is private enjoyment, it becomes impossible to demand public devotion and the sacrifice of their interests in favor of the common good. Growing inequality and luxury jeopardize the foundations of love for the country. But Rousseau also differentiates himself from the author of The Spirit of the Laws. According to him, Montesquieu omitted the “necessary distinctions” between sovereignty and government and was blind to the fact that sovereign authority is “everywhere the same”: for Rousseau, any legitimate state is republican. Hence, Montesquieu did not perceive that “the same principle must obtain in any well-constituted state.” Since the Discourse on Political Economy, Rousseau maintains that virtue is the supreme precondition of the general will: to perceive and follow the common interest assumes giving preference to the general interest over particular interests in cases of conflict.14 The statement about the preconditions of the democratic regime relates to the conditions for the institution

264 ce´line spector of a people at the end of Book II (SC II.11, 82). Virtue is not only the “spring” of democracy, but of all republics generally.

democracy: for gods, not men? The third argument against democracy is of a different nature. It focuses not on the principle of this regime, nor on its enabling circumstances, but on its probable effects: Let us add that there is no government as subject to civil wars and internal turmoil as democratic or popular government, because none tends so strongly and so constantly to change its form, or any that requires greater vigilance and courage to maintain in its own form. It is in this constitution above all that the citizen must arm himself with force and steadfastness, and every day of his life say from the bottom of his heart what a virtuous Palatine said in the Diet of Poland: I prefer a perilous freedom to quiet servitude. (SC III.4, 94)

As the classical tradition emphasized – particularly Polybius, who dreaded its transformation into ochlocracy, a regime of violence and brutal force – democracy is an unstable regime. Constant agitation makes it fragile, for factions dominate it. In the Considerations on the Government of Poland, Rousseau rejects the path that consists in diminishing the influence of the Senate by increasing the number of envoys, for, he says, “I rather fear that this made for too much movement in the state and brought about an excess of democratic tumult” (211). Only citizens could temper the risks of an anarchic drift. Rousseau mentions a modern example: in Poland, civic control and courage rise to the level of heroism. He reports the words of a virtuous Palatine who prefers liberty with dangers than a peaceful slavery – which conveys the unswerving preference for the dangers of liberty demanded by the democratic ethos. Far from being bad in itself, as was stipulated at the beginning of the chapter, democracy thus appears as an ideal beyond reach, by reason of its very perfection: “if there were a people of Gods, it would govern itself democratically. So perfect a government is not suited to men.”

rousseau’s case against democracy 265 In this way, Rousseau’s critique of democracy differs from Plato’s. Plato rejected democracy in the name of a technocratic ideal. As a regime of amateurs, the democratic politeia introduces disorder and anarchy; it is a prelude to tyranny. For the author of the Republic, democracy is the regime that, under the pretext of liberty, renounces all law and all order, and that, in the name of equality, assigns responsibilities without concern for competence. This form of government, congenial to men, is profoundly unjust since it “distributes a kind of equality that applies just as well to what is unequal as to what is equal” and assigns honors and powers not with regard to excellence, but in an egalitarian fashion. In a word, democratic equality is blind, and democratic liberty is license. Where the freedom claimed by democrats is the equal power to participate in common decisions, and the refusal of all personal servitude, Plato perceives it as an agent of dissolution for political and psychological order, capable of bringing to power the worst demagogues.15 But the Social Contract does not uphold any of Plato’s criticisms. Far from dreading license and anarchy, Rousseau notes instead the risks associated with the confusion of powers. His discontent with democracy is caused by the absence of a distinction between legislative and executive power. The government of the people, by the people and for the people is not assumed to have an intrinsic capacity for securing political equality, nor for making the best and most legitimate decisions. Rousseau insists not only on the impossibility of popular sovereignty being represented without it being lost, but also on the impossibility of democracy not drifting into anarchy or oligarchy, or even dissolving into civil war. Bad in its essence (by reason of the partisanship that it engenders), historically exceptional (because of the rarity of its conditions of existence), dangerous by its effects (due to its instability), democracy hence appears as the worst form of administration. In contrast to self-rule, elective aristocracy constitutes for Rousseau the best regime. Not only does the Citizen of Geneva

266 ce´line spector emphasize its sound distribution of powers, but in the wake of Montesquieu he praises the way a Senate could enlighten the citizenry. The Social Contract considers an elective aristocracy preferable to democracy for a variety of reasons: it turns elections into the coronation of the best, enables the most virtuous citizens to make an example of their behavior, and organizes itself more efficiently. The aristocratic art of governing assumes readiness, wisdom, and competence. It is more likely to be orderly and stable since the execution of the laws and the handling of diplomacy are entrusted to a small group of senators. If it is necessary to count the votes in the Sovereign Council, one should weigh them in matters of government: Aristocracy, in addition to having the advantage of distinguishing between the two powers, has the advantage of choosing its members; for in popular government all citizens are born magistrates, whereas this government restricts them to a small number and they become magistrates only by being elected, a means by which probity, enlightenment, experience, and all the other reasons for public preference and esteem are so many further guarantees of being well governed. Moreover, assemblies are convened more easily, business is discussed better and dispatched in a more orderly and prompt fashion, [and] the State’s prestige abroad is upheld better by venerable senators than by an unknown and despised multitude. (SC III.5, 95)

Far from being misleading, these arguments are coherent with Rousseau’s defense of absolute popular sovereignty as the only proper foundation of the State. Several subsequent texts confirm Rousseau’s mistrust of democracy, or at least insist on the rigorous preconditions of self-rule. If democracy can suit Corsica, whose austere, egalitarian, and frugal mores favor equality, it no longer suits Geneva, which has become a commercial society.16 To be sure, the Letters Written from the Mountain seem to introduce a more

rousseau’s case against democracy 267 favorable turn toward this regime, at least in terms of the “Democratic Constitution”: The democratic constitution has been poorly analyzed up to this point. All those who have spoken of it did not know it, or took little interest in it, or had an interest in presenting it under a false light. None of them had sufficiently distinguished the sovereign from the government, or the legislative power from the executive. There is no state where the two powers are so separated, and where one has been so determined to confuse them. Some imagine that a democracy is a government where all the people are magistrate and judge; others only see liberty in the right of electing its leaders, and only being subjected to princes, believing that the one who commands is always the sovereign. The democratic constitution is certainly the masterpiece of political art, but the more admirable the artifice, the less the eye is able to perceive it.17

Yet this by no means indicates that Rousseau supports the most democratic of the Genevan representatives. In a letter to his friend François Condet in February 1767, where he commented upon the constitutional reforms proposed by Paul-Claude Moultou, Rousseau took a position equidistant from the radical democrats and the defenders of oligarchy: M. Moultou does not want a pure democracy in Geneva, and he is right. I have always said and thought the same thing. Everywhere democratic government is too tempestuous, and above all too agitated in a trading city like Geneva, that makes its living only by industry, where many people are rich, and where everyone is busy.18

The correspondence of Rousseau testifies, therefore, to the search for a compromise in the form of a mixed government. In 1768, Rousseau wrote to François-Henri d’Ivernois: “The Small Council tends strongly toward the harshest kind of aristocracy. Following them to their logical end, the maxims of the

268 ce´line spector representatives lead not only to the excess, but to the abuse of democracy – that is certain. Yet your Republic needs neither the one nor the other.”19 This is the reason why Rousseau defends the mediating roles of the Council of 200 and the Council of 60, roles that must not be subordinated to the Council of 25. In this way, the people will be able to remain free, and the magistrates will be in charge without being tyrannical. As noted above (p. 267), Rousseau does not in any way share the positions of Geneva’s radical democrats, whom he perceives as harbingers of civil war.20 Given these arguments, one ought also to return to the image of Rousseau forged in the French Revolution.21 Far from attributing the revolt of the sansculottes and a fortiori the Committee of Public Safety to Rousseau’s influence, one should reassess his view: the author of the Social Contract appears as a partisan of an elective version of executive power. His defense of republicanism and his critique of oligarchic deviations do not constitute unconditional support for direct democracy. If the Great Council, where all the citizens are assembled, holds the sovereign power to make the laws and to name those who govern; if it must be able to assemble without the agreement of the government in order that its sovereignty remains effective; if it must remain master of the form and the officeholders of government – all this does not imply that the citizenry must decide directly on their own affairs. The political role of the people in a republic is not to substitute themselves for the magistrates. For Rousseau, representative government neither seizes power on behalf of elites nor substitutes the power of the people for the power of magistrates. If Rousseau is a “democrat” in the modern sense of the term, it is because the people, in his eyes, must adjudicate constitutional principles and, as a last resort, ratify the laws, with the magistrates holding their authority only from the people’s will.

the legacy of rousseau in democratic theory Despite his harsh criticisms of democracy, it remains the case that Rousseau is considered one of the illustrious forerunners of

rousseau’s case against democracy 269 democratic theory. For political theorists who define democracy by the sovereignty of the people, by self-legislation rather than selfgovernment, the author of the Social Contract is clearly a democrat. Rousseau was able to make liberty and equality the two foremost goals of all legitimate Constitutions. Even if he did not counter representation with direct participation, he gave an invaluable direction to democratic theory. Recent reassessments of Rousseau are stimulating for this very reason. They reevaluate his contribution to theories of participative or deliberative democracy. As early as 1970, Carol Pateman praised Rousseau’s insights about political participation – highlighting the need for educating the people, controlling the collective decisionmaking process, and fostering social cohesion.22 Today, theories of deliberative democracy are far from denying this heritage. Rousseau is, for this school of thought, simultaneously a central and ambivalent point of reference. The advocates of deliberative democracy (Joshua Cohen, David Estlund, Seyla Benhabib, among others) struggle with the apparent absence of collective deliberation in the silent assembly of the Social Contract: decisions are just and accurate as long as they are made by individuals who do not communicate before they vote according to the general interest. Yet political theorists like nonetheless to claim Rousseau as one of their own. The philosopher is invoked as a forerunner in their interpretation of the democratic ideal as the promotion of the common good, the protection of political freedom, and the search for unanimity by deliberation, against the aggregative model of democracy.23 Instrumental and incomplete, their references to Rousseau are all the more surprising since their goal is to transpose Rousseau’s theory into complex and pluralistic societies. But their praise is not altogether pro forma: in drawing upon a possibility that Rousseau appeared to have rejected – that of collective deliberation – theories of deliberative democracy strive to overcome the aporias of Rousseauian politics (the indeterminacy of the general will when it is not expressed by the will of the majority, the paradoxical thesis by

270 ce´line spector which it is sometimes necessary to “force men to be free”).24 At the least, they succeed in reconnecting with the political intention of the Social Contract – that is, to renew democratic theory in its full depth. Further testimony to this continuing vitality of the dialogue with Rousseau is given by the polemical exchange between Bonnie Honig and Seyla Benhabib.25 Benhabib rejects what she perceives as Rousseau’s solution to the paradox of democratic legitimacy, in which the general will is separated from the will of all. Certainly, Rousseau’s legislator tries to solve this problem associated with the procedural conditions of democratic autonomy. Because the people can be wrong about the content of the common good, the lawgiver has a dual function, cognitive and emotional. On the one hand, he must thwart the illusion of the near and the attraction of pleasure that prevail in the multitude, above all at the founding moment (SC II.6, 70). On the other, the lawgiver’s mission is to train the “social spirit” that should preside over the political institution. But this solution, for Benhabib, is no solution at all, for the lawgiver incarnates an idealized figure of nondeliberative reason: in this way, legitimacy seems to be sacrificed. Not only does Rousseau betray his promise of autonomy, but

his

theory

lacks

a

genuine

moral

perspective

(i.e.,

a universalizable one) that protects the legitimacy of democratic procedures. Yet in this quarrel, Bonnie Honig plays Rousseau against Seyla Benhabib. Of course, the people never have the virtues and qualities required to allow democracy to function in its ideal form. The people are always present/absent on the democratic scene: democracy should precisely bring these wise people into being. Rousseau is hence not an incomplete or inferior thinker compared to Kant. If his politics does not proceed to the ideal or to the universal, it is doubtless because he wishes to impart another vision, one closer to the political realm, with its contradictory dimensions and its conflicting aspirations. That the material conditions of popular sovereignty are impracticable today does not make their exposition less instructive. According to Bonnie Honig, it remains true that under strongly unequal material conditions, it is impossible to

rousseau’s case against democracy 271 commit oneself to a supposed “common good.” The Social Contract also shows that nothing allows us to conflate once and for all the general will and the will of all. At its best, democratic politics can set up the material and cultural conditions that mitigate their divergence or their conflict. Instead of taking leave of politics by regulative ideals or fictions, one should remain bound to the real dominion of politics. Law, people, general will, deliberation remain haunted by their contraries – violence, multitude, will of all, decision. If only for this reason, we still need to revisit Rousseau.

notes 1. I will use the following abbreviations and editions: SD for the Discourse on the Origin of Inequality (in The Discourses and Other Early Political Writings, trans. V. Gourevitch [Cambridge: Cambridge University Press, 2019]); SC for The Social Contract (in The Social Contract and Other Political Writings, trans. V. Gourevitch [Cambridge: Cambridge University Press, 2019]); CC (Correspondance complète, ed. R. Leigh [Oxford: The Voltaire Foundation, 1965–98]); Corsica for the Projet de Constitution pour la Corse (Affaires de Corse, ed. C. Litwin and J. Swenson [Paris: Vrin, 2018]); and SL for The Spirit of the Laws (Montesquieu, The Spirit of the Laws, trans. A. Cohler [Cambridge: Cambridge University Press, 1989]). 2. See Pettit 1997, 30; Pettit 2016. 3. McCormick 2007. 4. See, for example, Spector 2011; De Djin 2018. 5. Tuck 2016, 141. 6. Miller 1984, chapter 3 (Miller seems to ignore Montesquieu’s influence). 7. Urbinati 2006, 69. See Manin 2010, 43–4. 8. See Spector 2019, 49–55. 9. See Urbinati 2006. 10. Urbinati 2012. 11. Collected Writings of Rousseau, ed. Roger D. Masters and Christopher Kelly. 13 vols. (Hanover: Published for Dartmouth College by University Press of New England, 1990–2010), vol. 10, p. 336. 12. Urbinati 2012. 13. See Spector 2004.

272 ce´line spector 14. See Cohen 2010. 15. Plato, Republic, Book VIII. See Williams 2007. 16. See Rousseau, Corsica. On Rousseau and Geneva, see Rosenblatt 1997; Whatmore 2012, 54–97. 17. Oeuvres complètes, vol. 3 (Paris: Gallimard, 1964), pp. 837–8. 18. CC 35, 91–7. See Whatmore 2012, 94. 19. Letter of February 9, 1768, CC 35, pp. 100–7. 20. See Rosenblatt 1997; Silvestrini 1993. 21. Swenson 2000. 22. Pateman 1970, 22–7. 23. Girard 2010. 24. See Spector 2015. 25. Benhabib 1994, and Honig’s response (2007).

13 Rousseau’s Dilemma, or “Of Civil Religion” Steven B. Smith

The various modes of worship, which prevailed in the Roman world, were all considered by the people as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. And thus toleration produced not only mutual indulgence, but even religious concord. Edward Gibbon

The theme of civil theology is as old as philosophic reflection on politics. Does politics require theological supports as philosophers from Plato to Tocqueville have argued or should religion occupy a zone of privacy independent and separate from the world of political deliberation as philosophers from Locke to Rawls have maintained? This question was put nowhere more forcefully than in the penultimate chapter of Rousseau’s Social Contract in which he argued that republican politics requires a civil theology – a body of mandatory religious beliefs – if it is to be sustainable over time.1 Rousseau’s chapter “Of Civil Religion” has given rise to considerable debate going back to the book’s earliest readers. To the citizens of Geneva of whom Rousseau counted himself one, the chapter seemed like an affront to moral and political decency.2 The Social Contract and Emile, both published in 1762, were publicly burned in Paris and Geneva largely due to their heretical teachings on theology.3 The author used the occasion to renounce his Genevan citizenship and take refuge first in Neuchâtel – a German outpost in Switzerland – then briefly in England where his trip was sponsored by David Hume, 273

274 steven b. smith before eventually returning incognito to France in 1767.4 For contemporary readers, however, Rousseau’s views on civil religion have merited much less outrage. Opinions range from mild bemusement to benign neglect. The civil religion chapter appears near the end of the fourth book of the Social Contract following what seem to be largely historical digressions on Roman political institutions. Rousseau seems to be doing his best to make the civil religion chapter appear as something of an historical afterthought but not necessarily central to his truly groundbreaking ideas about popular sovereignty and the general will.5 The appearance is misleading. “Of Civil Religion” is central to the Social Contract, and the work cannot be understood adequately without it. The question is whether there is some inconsistency between the requirements of the general will and the need for a civil religion. The point seems to be why the formula for the laws and institutions set out in the earlier books of the Social Contract requires additional support in the form of the religious beliefs examined in the penultimate chapter. I want to suggest that this chapter represents a nod in the direction of Rousseau’s political realism in his acknowledgment that civil religion remains an indispensable part of the education of republican citizens.

why a civil religion? The concept of civil religion has an ancient history. The term itself suggests a paradox. A civil theology suggests a body of beliefs less concerned with theological truth than with their effects on social order, or – in Michael Oakeshott’s terms – such a religion is “not the construction of reason but of authority, concerned not with belief but with practice, aiming not at undeniable truth but at peace” (Oakeshott 1991, 290). Although there have been attempts to locate the origins of the concept of civil religion going back to Plato’s Laws and Augustine’s City of God, it was the Roman historian Livy who provided the canonical account of the role of political theology in his Ab Urbe Condita.6

rousseau’s dilemma, or “of civil religion” 275 Near the beginning of his monumental history, Livy considers the role of Numa, the second founder of Rome, who established Rome’s religious rites and practices. “Numa,” Livy wrote, “determined that Rome, which had originally been established through force of arms, should be re-established through justice, law, and proper observances” (I.19). In order to counter their primitive aggression, which had previously been checked only by military discipline, Numa sought to instill a fear of the gods. He wrapped himself in a “miraculous fiction” in which he pretended to have nightly meetings with a goddess Egeria, who gave the religious orders of the city. Numa then set about reforming the calendar, instituting the priesthoods, and providing funds for maintaining the temple and the proper observance of the prescribed rituals. As a result of these changes, “concern for the gods became ever-present and habitual, filling their hearts with such devotion that good faith and regard for their oaths ensured order rather than fear of punishment under the law.” Numa’s rule extended for thirty-seven years, leaving Rome “strong and welltempered in the ways of war and peace” (Livy I.21). The heyday of civil theology was the early modern era. Exhausted by the religious wars set off by the Protestant Reformation, the Treaty of Westphalia gave up on the idea of a single Catholic faith embracing all mankind and endorsed the view that the religion of the sovereign should be the religion of the state. The principle of cuius regio, eius religio gave the sovereign of each territory the right to decide the religion of that territory. While in no ways intending to adopt a policy of religious toleration, this principle for the first time gave legal recognition to the fact of religious pluralism, if not within, at least between states. This “Erastian” solution of subordinating religion to the civil sovereign – so named after the Swiss theologian Thomas Erastus (Lüber) – was eagerly embraced by those worldly and secularizing figures seeking ways of ending religious warfare and solidifying the national state.7 The most notable of these Erastians, Thomas Hobbes, gave voice to this sensibility by declaring the civil sovereign to be both

276 steven b. smith chief magistrate and head priest. The polemical focus of Hobbes’ masterpiece, Leviathan (1651), is the “Kingdom of Darkness,” by which he meant a “confederacy of deceivers” – above all the Catholic and Presbyterian clergies – who use their position of ecclesiastical authority to gain control over the minds of believers (Hobbes 1994, IV.46). For Hobbes, the falsest of these false doctrines is the belief that the church alone can provide access to salvation. From this belief followed all of the conflicts between church and state that had bedeviled the theological politics of the post-Reformation era. Hobbes’ solution was simplicity itself, namely, to treat Christianity as a civil religion that would henceforth serve the interests of the state. Hobbesian Christianity has two simple doctrines – to accept Jesus as the Messiah and to obey the laws of the sovereign (Hobbes 1994, IV.43). Everything else, so to speak, is commentary. Needless to say, not everyone was enamored with Hobbes’ solution. One of Leviathan’s earliest and most perceptive readers, Edward Hyde, later the Earl of Clarendon, remarked that “a good Christian can hardly hear of Hobbes’ name without saying his prayers” (cited in Letwin 1999, 166). Others found in Hobbes’ unification of church and state a cure worse than the disease, a return to the Caesaropapism of the Roman Empire. Still others have seen Hobbes’ view of the sovereign authority as a recipe for the totalitarian states of the twentieth century.8 Rousseau, the greatest Erastian of all, situated himself within this tradition when he declared in the Social Contract: Of all Christian authors, the philosopher Hobbes is the only one who clearly saw the evil and remedy, who dared to propose reuniting the two heads of the eagle, and to return everything to political unity without which no state or government will ever be well constituted . . . It is not so much what is horrible and false as what is just and true in his politics that has made it odious. (IV.8.13)

Not only is this passage of interest for Rousseau’s inclusion of Hobbes among the “Christian authors” – something that many of Hobbes’

rousseau’s dilemma, or “of civil religion” 277 own contemporaries would surely have doubted – but for his endorsement of his plan for subordinating religion to the authority of the civil sovereign. The question is precisely how to distinguish what is “horrible and false” in Hobbes’ solution from what is “just and true.” I want to call this “Rousseau’s Dilemma.”

the need for religion Rousseau’s chapter “Of Civil Religion” begins by offering a historical analysis of the religious situation of the ancient world. He begins the chapter with a characteristically paradoxical formulation. “Men at first had no other kings than the gods, nor any other government than the theocratic one,” he wrote. “It takes a long degradation of sentiments and ideas before one can bring oneself to accept a being like oneself as master and flatter oneself [into believing] that one will be well off as a result” (IV.8.1). The earliest condition of which we have knowledge was one of polytheism. Each people or each political society had its own gods whose limits extended only to their own borders. There was no recognized distinction between government and religion. Religion was, so to speak, a purely national affair. “The gods of the pagans were not jealous gods, they divided the empire of the world among themselves” (IV.8.4). Rousseau notes that this was even tacitly recognized in the Hebrew Bible, where Moses speaks of the “God of Israel” as a kind of national deity. It was only after the destruction of the Temple when the Jews refused to recognize the gods of Babylon that the first persecutions took place, anticipating what would become standard practice under Christianity. Rousseau’s analysis of the emergence of Christianity and its two-world doctrine sounds as if it could have come directly out of Nietzsche’s later account of the revaluation of morals. The establishment of a kingdom of heaven apart from the political kingdom was the source of all later conflicts that have convulsed the Christian world. So long as Christians remained a persecuted minority, they adopted an attitude of humility and obedience to the Roman state that

278 steven b. smith appeared to their governors as nothing more than a “hypocritical submission,” which they respected so long as they remained weak. But when Christianity became strong, what the pagans feared came to pass. “The humble Christians changed their language and before long this supposedly other-worldly kingdom was seen to become under a visible chief the most violent despotism in the world” (IV.8.9). The history of Christianity has been the long story of this split vision. Everywhere that Christianity has established itself, the spirit of the priest has taken over. The priesthood constitutes a corporate body that has managed to gain control over the political sovereigns. Rousseau even imagines a conspiracy of priests that has everywhere usurped political authority. “Communion and excommunication are the clergy’s social pact by which it will always be the masters of peoples and kings.” “This invention is a masterpiece of politics,” he notes in mock praise (IV.8.12, n.). The task Rousseau set himself in this penultimate chapter is how to regain political control over religion. Rousseau briefly considered two solutions to his dilemma only to reject them. The first was proposed by the English divine William Warburton in The Alliance Between Church and State (1736), where he argued that of all religions Christianity was best suited for putting society on a stable foundation. The second was proposed by the French Huguenot Pierre Bayle’s Various Thoughts on the Occasion of a Comet (1682), which advanced the radical thesis that religion was completely unnecessary for sustaining social order (Bayle 2000, sects. 133–6, 172, 174, 176). Bayle believed that deeds speak louder than words, and when it came to assessing morality, people’s opinions on the afterlife and other theological matters have little influence on their actual behavior. His “society of atheists” was a bold and original thought experiment that proposed that atheists could be just as good citizens as believers.9 Why does Rousseau reject these two alternatives? Rousseau did not offer a philosophical refutation of these theories but an appeal to “the historical facts” to make his case.

rousseau’s dilemma, or “of civil religion” 279 Christianity, he argued forcefully, divides our obligations between the earthly and the heavenly sovereigns. “All institutions which put man in contradiction with himself are worthless,” he wrote (IV.8.16). Warburton’s effort to forge an “alliance” between Christianity and state would be at best a marriage of convenience. More suggestively, however, Rousseau rejected Bayle’s claim about a society of atheists by countering “no state has ever been founded without religion serving as its basis” (IV.8.14). Whatever truth this may have as a historical claim, Rousseau wanted to draw normative force from it. Atheists and freethinkers (Diderot, D’Alembert, Holbach) of the kind with whom he often associated cannot be trusted to fulfill their social obligations, or so he thinks. Rousseau was obsessed with the problem of atheism and addressed it in a number of places, most prominently in Emile. In a lengthy footnote to the “Profession of Faith of the Savoyard Vicar,” he considered Bayle’s thought experiment about a society of atheists. He readily concedes that religious fanaticism is worse than atheism, yet he also admits that if fanaticism is a vice, it is also a kind of sublime vice. It may be “sanguinary and cruel,” but it is also a “grand and strong passion,” capable of producing the “prodigious energy” necessary for acts of heroic self-sacrifice. Atheism is averse to cruelty “less from love of peace than from indifference to the good.” It “quietly saps the true foundations of every society” by concentrating all passions in private interests and “the abjectness of the human I.” He identifies this philosophic indifference with “the tranquility of the state under despotism” that Rousseau finds “more destructive than war itself.”10 Bayle’s thought experiment would produce not a society of bold and curious freethinkers but a society of self-absorbed egoists and couch potatoes.11 Why does Rousseau think this? Rousseau offered two reasons. First, he doubted that appeals to reason or self-interest alone could be a sufficient motive for performing civic duties. Reason must be supported by a range of sentiments, beliefs, habits, and opinions if it is to have motivational force. It is difficult, if not impossible, on the basis of reason alone to see why

280 steven b. smith people should sacrifice their self-interest for the sake of a more expansive moral viewpoint. Still, this does not answer the question why a civil theology is necessary to come to the aid of reason. Second, Rousseau believed that only religion can provide that shared moral viewpoint or what he later calls the “sentiments of sociability” that constitute a community (IV.8.32). Only if people actually believe that their social responsibilities are supported by divine sanction can they be compelled to subordinate their private interests to their public duties. This seems to be less a philosophical than a psychological necessity, a recognition of the dependence of reason on belief and the dependence of belief on religion. The question that remains is what kind of religion is most conducive to social order.

rousseau’s ferocious machiavellianism There are two forms of civil profession, the religion of man and the religion of the citizen, the one concerning a purely internal worship being “the pure and simple religion of the Gospel,” the other being tied to the laws and duties of a particular state. The religion of the citizen would seem to be closest to Rousseau’s ideal of a civil faith, but he finds such religions in the past to be founded on error and superstition and have the effect of making citizens violent and intolerant. The effect of such purely national religions is to put people in a state of war with one another (IV.8.19). A pure religion of man – something like the religion of the heart set out in Emile – may be “saintly and sublime” but alienates citizens from their social duties. “I know of nothing more contrary to the social spirit,” he wrote (IV.8.21). Here, Rousseau largely reprises Machiavelli’s ferocious attack on Christianity in the Discourses on Livy. Of all modern writers, Machiavelli paid the greatest tribute to Numa’s establishment of a civil religion in Rome. “The religion introduced by Numa,” Machiavelli wrote, “was among the first causes of the happiness of that city” and from this cause arose “good orders” which in turn make “good fortune,” and “from good fortune arose the happy success of enterprises” (Machiavelli 1996, I.11.4). Numa

rousseau’s dilemma, or “of civil religion” 281 feigned conversation with a nymph to convince the Romans that his orders were divinely inspired. This fiction was necessary because of his wish to introduce “new and unaccustomed orders into the city,” and he doubted that his own authority would suffice (Machiavelli 1996, I.11.2). From this, Machiavelli drew the following lesson: “Those princes or those republics that wish to maintain themselves uncorrupt have above everything else to maintain the ceremonies of their religion uncorrupt and hold them in veneration” (Machiavelli 1996, I.12.1). In a chapter deliberately buried near the very center of the book and given the innocuous title “What Peoples the Romans Had to Combat and That They Obstinately Defended Their Freedom,” Machiavelli asked the provocative question why people in ancient times appeared to love their freedom more than in the modern era. The difference, he believed, has to do with their education. Here, he took the bold step of asserting that it is not the corruption of Christianity but the original doctrine that has led to a loss of freedom. “For our religion having shown the truth and the true way,” he noted, “makes us esteem less the honor of the world, whereas the Gentiles esteeming it very much and having placed the highest good in it, were more ferocious in their actions” (Machiavelli 1996, II.2.2). Machiavelli set out a theme that would be picked up not only by Rousseau but by Nietzsche, namely, that the ancient pagan theologies were master moralities that valued domination and strength while Christianity was the prototypical slave morality valuing weakness and pity. “Our religion has glorified humble and contemplative more than active men. It has then placed the highest good in humility, abjectness, and contempt of things human; the other placed it in greatness of spirit, strength of body, and all other things capable of making men very strong” (Machiavelli 1996, II.2.2). His solution to this problem seems to lie in a revivified form of Roman paganism. Rousseau

appears

to

repeat

even

more

emphatically

Machiavelli’s question, namely, what kind of religion can best serve

282 steven b. smith republican government. He distinguishes Christianity as a form of pure internal worship from the pagan religions of antiquity. “Christianity is a wholly spiritual religion, exclusively concerned with the things of Heaven: the Christian’s fatherland is not of this world” (IV.8.25). He even has some kind words for Islam (“Muhammad had very sound views”) for tying his system of law (Sharia) to his form of government.12 But Christianity introduced a fatal conflict of jurisdictions between church and state, which will forever be at odds with each other. Rather than a source of unity, Christianity became a source of conflict, and religion became dominated by priests who used it to advance their own interests. “We are told,” Rousseau wrote, “that a people of true Christians would form the most perfect society imaginable. I see only one major difficulty with this supposition; which is that a society of true Christians would no longer be a society of men” (IV.8.22). Rousseau’s major point, like Machiavelli’s, is that Christian charity makes people useless for political life by making them gullible to every mountebank and fraud that comes along. He tries to imagine what a Christian army would look like. “Citizens march to battle without hesitation; not one of them thinks of fleeing,” he admits, but “they do their duty without passions for victory, they know better how to die than to win” (IV.8.27). The image of “onward Christian soldiers” – unlike the old spiritual – is a contradiction in terms. Pit such an army against a Rome or Sparta, and the Christians will be crushed or allowed to survive only due to the contempt the enemy will feel for them. Rousseau offers his most damning indictment of the “Christian republic” in the following terms: But I am mistaken in speaking of a Christian republic; each one of these two terms exclude the other. Christianity preaches nothing but servitude and dependence. Its spirit is too favorable to tyranny for tyranny not always to profit from it. True Christians were made to be slaves; they know it and are hardly moved by it; this brief life has too little value in their eyes. (IV.8.28)

rousseau’s dilemma, or “of civil religion” 283

rousseau’s profession of faith It is only toward the end “Of Civil Religion” that Rousseau offers his own “purely civil profession of faith.” His description of this religion as a “profession” suggests that it is not a matter of conscience or internal conviction only but must be publicly avowed. While denying that the tenets of this religion constitute “dogmas” – principles of faith that must be believed – he says only that they prescribe the “sentiments of sociability” without which one cannot be a good citizen. What the precise difference is between a dogma and a sentiment is not made altogether clear. He only states that these dogmas must be “simple, few in number, stated with precision, without explanations or commentary” (IV.8.33). He then goes on to prescribe five dogmas of the civil creed, four positive and one negative: 1. The existence of a powerful, intelligent, beneficent, prescient, and provident Divinity 2. The life to come 3. The happiness of the just and the punishment of the wicked 4. The sanctity of the social contract and the laws 5. There is no tolerance for the intolerant. The content of Rousseau’s civil creed has given rise to serious debate. In the first instance, he says nothing about how and by whom these tenets are promulgated. How is such a civil creed to be taught and by whom? Will there be a national church, clergymen, or a more federal version of religious authority? It would seem that these tenets would have to be inculcated at the founding of society, although the chapter “Of the Lawgiver” says nothing specific about religion. Rousseau speaks elliptically about a founder of society being capable of “changing human nature” (II.7.3). Such a leader must use neither force nor reason but must appeal “to an authority of a different order, which might be able to rally without violence and persuade without convincing” (II.7.9).13

284 steven b. smith The closest Rousseau comes to affirming a connection between the legislative founder – Moses, Lycurgus, Numa – and the civil religion is the claim that the founder must wrap himself in divine authority if his laws are to be accepted as legitimate. To support his claim, he cites a revealing passage from Machiavelli’s Discourses I.11: “The truth is . . . there has never been in any country a lawgiver who has not invoked the deity; for otherwise his laws would not have been accepted. A wise man knows many useful truths which cannot be demonstrated in a way that will convince other people” (II.8.7, n.). The claim that every community requires a belief in the divine authority of its founding might equally suggest that every community is based on a lie but a politically useful lie (Griswold 2015, 285). The relation between the five principles of the civil creed is far from obvious. Tenets 1 to 3 refer to theological doctrines – the omnipotence of God, the belief in the afterlife, the punishment of the wicked and the reward of the just – while tenets 4 and 5 concern the foundational rules governing society. The first three tenets speak to certain universal truths of religion, the fourth and fifth to the requirements of civil society. Rousseau draws a connection between belief in such things as an omnipotent deity and the world to come with respect for the laws and a willingness to lay down one’s life for one’s country, although it is not clear why belief in one is necessary for the other. For example, he had earlier maintained that Christian otherworldliness (#2) led to a neglect of civic duties here and now. Why, then, is a belief in the world to come considered mandatory, especially as he had earlier chastised Christianity for its two-world doctrine? How can a Christian be a good citizen if they believe their ultimate reward will be in the afterlife? There is a further difficulty of why tenet 1, which seems to mandate monotheism – the existence of a powerful and provident Divinity – is a requirement of civil religion, since Rousseau’s models of ideal citizenship – the Spartans and the Romans – were pagans and polytheists. Monotheism seems more closely tied to Rousseau’s hatred of theocracy – rule of priests – than were the pagan civil religions.

rousseau’s dilemma, or “of civil religion” 285 He is clear, moreover, that the penalty for reneging on one’s duties is severe: “If anyone, after having publicly acknowledged these same dogmas, behaves as if he did not believe them, let him be punished with death; he has committed the greatest of crimes, he has lied before the laws” (IV.8.32). This raises the further question of whether the tenets of the civil profession must be affirmed as a matter of belief or whether they apply only to public behavior. As evidence for the latter view, Rousseau suggests that the truth of these convictions can only be corroborated through our actions. He is not concerned with truth tests in religion so much as the effects of religion on behavior. He seems to adopt Montaigne’s famous adage, “My reason is not trained to bend and bow, it is my knees” (Montaigne 1958, 714). True religion is to be judged by its fruits, namely, its effects on society. We owe the sovereign our actions, not our minds. “Subjects . . . only owe the sovereign an account of their opinions insofar as these opinions matter to the community,” Rousseau writes. “Beyond this, everyone may hold whatever opinions he pleases without its being up to the sovereign to know them” (IV.8.31). Yet Rousseau also claims that the dogmas of the civil creed must not only be practiced but believed. In a deliberately paradoxical formulation, he writes: “Without being able to oblige anyone who does not believe them, the Sovereign may banish from the state anyone who does not believe them . . . not as impious but as unsociable, as incapable of sincerely loving the laws, justice, and, if need be, of sacrificing his life to his duty” (IV.8.32). But how, exactly, would disbelief in the tenets of the civil faith be expressed and on what evidence would the sovereign be justified in banishing any of its citizens? There could be cases of explicit disavowal of belief, but more likely through violating the very terms or “sanctity” of the social contract. But even this is not clear. Would every violation of the law be a violation of the social contract? Will every infraction, however trivial, be punishable by banishment or death down to and including violations of the parking laws (Williams 2014, 202)?

286 steven b. smith It seems incredible that Rousseau would believe this, but his formula gives us no way of distinguishing breaches in the fundamental law of the land (the social contract) and breaches of ordinary civil law. Furthermore, Rousseau’s insistence on the clarity and simplicity of these dogmas is far from obvious. Any one of these beliefs has been the subject of extensive theological controversy. His insistence that these tenets be held “without explanations or commentary” is intended to put them outside the bounds of argument, although Rousseau discusses these propositions at length elsewhere. But that is already to stake a claim. His goal, as we will see, is to cut off theological controversy in order to avoid civil controversy. Note also that Rousseau nowhere claims that the dogmas of his civil faith are true. It is only necessary that we act as if they were. Perhaps the most intriguing dogma is the fifth, the negative injunction that intolerance will not be tolerated. Intolerance is, apparently, the worst sin in Rousseau’s civil religion. This would seem to put him on the side of various liberal and civil libertarian arguments for freedom of speech. His disapproval of intolerance is coupled with a seeming liberality regarding the actual content of one’s religious beliefs. Apart from his very general beliefs about a providential deity and the existence of the afterlife – it seems clear that atheists would not be tolerated – his subjects are free to profess whatever religion they like. For reasons pioneered earlier by Locke and Spinoza, Rousseau believed civil sovereigns are notoriously inept at distinguishing theological truth from error. It is therefore best to leave each citizen free to choose how to conduct their religious life. “For since the sovereign has no competence in the other world, whatever the subjects’ fate may be in this life to come is none of its business, provided they are good citizens in this life” (IV.8.31). The only sin for Rousseau is intolerance, not because he is agnostic about the truth of his religious dogmas but because theological intolerance breeds political intolerance. Those who believe there is only one path to heaven inevitably put the clergy above the

rousseau’s dilemma, or “of civil religion” 287 sovereign and would restore some kind of theocracy. “It certainly matters to the state that each citizen have a religion which makes him love his duties,” Rousseau writes, but as to the content of this religion, he is theologically neutral. There are many paths to heaven. Rousseau did not believe that intolerance was a vice of religion only. Nonbelievers could be just as intolerant as the most fervent Christians. In the Letter to Voltaire, he calls intolerant “any man who imagines that one cannot be a good man without believing everything he believes.”14 He seems to understand exactly the dogmatic and proselytizing spirit behind Voltaire’s écrasez l’infâme. The Enlightenment’s recourse to mockery and the savage ridicule of religion merely underscores Rousseau’s point about the intolerant spirit of nonbelief. The war against intolerance can foster its own intolerance. Whether it derives from theological or nontheological sources, the demand for intellectual conformity is anathema to Rousseau. “If there were intolerant nonbelievers who wanted to force the people to believe nothing,” Rousseau writes, “I would banish them no less sternly than those who want to force the people to believe whatever they please” (“Letter to Voltaire,” 245). Was Rousseau, then, a tolerationist?15 Not exactly. He is happy to allow for a pluralism of sects so long as there is agreement on common principles. It would seem that questioning the basic law (“the sanctity of the social contract and the law”) is not permitted on pain of death, even though he is willing to grant considerable latitude in the actual practice of religious worship. He does not state exactly why questioning of the basic tenets of theology is not permitted. There seems to be a belief that skepticism about religion would lead to an erosion of “the sentiments of sociability” on which the social contract depends. These sentiments form the bedrock of society and cannot be sustained without a civil religion to enforce them. Rousseau’s recognition that society – even the ideal society governed by the general will – requires an infrastructure of unquestioned beliefs, sentiments, and practices to sustain it over time is part of what I am calling Rousseau’s political realism.

288 steven b. smith

rousseau’s theological legacy Rather than merely an afterthought to the Social Contract, I have tried to argue that Rousseau’s chapter “Of Civil Religion” is integral to the work as a whole and a necessary supplement to his theory of self-legislative freedom and the general will. Rousseau’s civil religion is evidence for his belief that self-government cannot be achieved by reason alone – it is not a Habermasian “ideal speech community” governed by the force of the better argument – but relies on auxiliary supports to sustain the “sentiments of sociability.” The Legislator and the civil religion are crucial to his project. Does the need for civil religion violate Rousseau’s belief in moral freedom as giving law to oneself (I.8.3)? If freedom means self-legislation in the Kantian or proto-Kantian sense, the need for a civil religion would seem to deny the very possibility of autonomy. If all citizens are subject to this creed that they are not even free to discuss, this would deny they are self-legislative beings in any meaningful sense of the term. If the civil creed is a kind of imposed belief, does this mean that the entire Rousseauean project is doomed from the start? I don’t think so. Rousseau’s civil religion is intended to demonstrate the limits on all plans for rationalist perfectionism and utopianism. More than later philosophers of human autonomy, Rousseau thought deeply about the preconditions of liberty. Freedom, he believed, is only possible within a certain theologicopolitical nexus underwritten by belief in God, freedom of the will, and the immortality of the soul. These are the priors that make the social contract possible. He agreed with the ancients and “the principle established by Montesquieu” that the laws of reason must be modified by circumstance which is why he allows for considerable variety in the actual practice of religious beliefs (III.8.1). The idea of a perfect democracy of free and rational citizens is a fantasy. “If there were a people of gods,” he famously opined, “they would govern themselves democratically. So perfect a government is not suited to men” (III.4.8).16 Just as Plato showed that the ideal city of the Republic cannot be sustained by

rousseau’s dilemma, or “of civil religion” 289 reason alone but needs ancillary supports in the form of the “noble lie” and the myth of Er, so too did Rousseau believe that the general will is not self-sustaining without the background conditions – the Legislator, the civil creed – that make freedom possible. The civil religion chapter is a testimony to Rousseau’s political realism. Rousseau’s civil theology would have far-ranging consequences both in his time and in the generations to come. As already indicated (p. 273), this chapter was the cause of the Social Contract being burned in his home city of Geneva. The attack on “the domineering spirit of Christianity” was later heralded by the French revolutionaries as a basis for their new cults and rituals.17 The Jacobin experiments with a religion of reason and the cult of the Supreme Being were short-lived, but in modified form these became the foundation of the nationalisms of the nineteenth century with their worship of the nation, la patrie, and the fatherland.18 The nation and the sovereignty of the people, as Tocqueville later saw, became substitutes for religion or the place where religions managed to live on in a kind of ghostly half-life. Rousseau’s civil religion, which is nothing more than Machiavellianism come of age, survives in modified form today in many of the debates over the secular identity of France and its resistance to efforts – think of the debate over Muslim women wearing headscarves – by revealed religion to intrude into public life. Rousseau’s dream for a new political religion that would surpass or supplant the revealed religions of the past was not confined to France.

Sociologist

Robert

Bellah

revived

this

debate

in

a groundbreaking article called “Civil Religion in America” (Bellah 1974, 21–44). “What we have from the earliest years of the republic,” Bellah wrote, “is a collection of beliefs, symbols, and rituals with respect to sacred things and institutionalized in a collectivity. This religion – there seems no other word for it – while not antithetical to and indeed sharing much in common with Christianity, was neither sectarian nor in any specific sense Christian” (Bellah 1974, 29). This might be called the domestication of Rousseau’s ferocious Machiavellianism.

290 steven b. smith Unlike Machiavelli and Rousseau, Bellah stressed the continuity between American civic religion and the biblical prophetic tradition. American civil religion, Bellah believed, retained key elements of the prophetic tradition but combined these with a kind of worship of the Constitution and reverence for the American framers. “The American civil religion,” he continued, “was never anticlerical or militantly secular. On the contrary, it borrowed selectively from the religion tradition in such a way that the average American saw no conflict between the two” (Bellah 1974, 34–5). Further, he did not draw nearly as sharp a contrast between Christianity as a purely inward faith and civic religion as a body of ceremonies and rituals as embodied in such practices as the presidential oath of office. There has been no greater avatar of this American civil religion than Abraham Lincoln. The Declaration of Independence and Constitutions were for him sacred texts and Washington and Jefferson like the prophets who led their people out of tyranny. Nowhere does Lincoln give more passionate expression to this civil creed than in his 1838 address to the Young Men’s Lyceum in Springfield on “The Perpetuation of Our Political Institutions.” Shocked at the rise of lawlessness and the outbreaks of mob violence, Lincoln exhorted his listeners to reattach themselves to their form of government. But how to do this, he asked, at a time when the living connection to the revolution and the founding was little more than a distant memory. His answer was to turn the laws into the “political religion of the nation.”19 The idea of an American civil religion has always remained somewhat disreputable. America may be overwhelmingly a nation of Christians, but it is not and was not intended to be a Christian nation. The attempt to enlist religion for the cause of the nation has always struck thoughtful observers as a misuse both of religion and of the national ideal. The American experience is no exception. Whatever the hope and faith in America may be, it cannot be the hope that a believing Jew feels for Judaism or a Christian for

rousseau’s dilemma, or “of civil religion” 291 Christianity. A civil religion, however ennobling its goals, is less an expression of religion than a substitute for it.

notes 1. I have used the Gourevitch edition of the Social Contract (The Social Contract and Other Later Political Writings, ed. Victor Gourevitch [Cambridge: Cambridge University Press, 1997]); all citations will refer to book, chapter, and section number given parenthetically in the text. 2. Rousseau attempted to exonerate himself from this charge in Letters Written from the Mountain (in The Collected Writings of Rousseau, vol. 9, trans. Christopher Kelly and Judith R. Bush [Hanover: University Press of New England, 2001]), 146–9. 3. For the reception of both books, see Damrosch 2005, 331–62; see also Guéhenno 1966, 87–135; Rousseau tells of this dark period of his life in the Confessions (in The Confessions and Correspondence, including the Letters to Malesherbes, vol. 5, ed. Christopher Kelly, Roger D. Masters, and Peter G. Stillman [Hanover: University Press of New England, 1995]), 493–550. 4. For the best account of Rousseau’s English adventure and his subsequent dust-up with Hume, see Scott and Zeretsky 2009. 5. Some of the best treatments of the problem of civil religion in Rousseau are Boss 1971; Bertram 2009; Beiner 2011; Williams 2014; Griswold 2015. 6. For Plato’s political theology, see Plato 1980, XI–XII; see also Augustine 1984, VI; Livy 1998, I.18–21; for the uses of Numa in later debates over civil religion, see Silk 2004, 863–96. 7. An important precursor of this position is Marsilius of Padua (1980), II.19; for the role of Erastianism in early modern thought, see Collins 2005, 11– 57; see also Nelson 2010, 92–105. 8. For the assimilation of Hobbes to the modern totalitarian state, see Schmitt 1996; for a useful commentary, see Meier 1998, 116–21, 125–32. 9. For a useful treatment, see Kelly 1988, 78–109; see also Gais 2018, 243–56. 10. Emile, or On Education, trans. Allan Bloom (New York: Basic Books, 1979), 312. 11. Rousseau seems to anticipate Tocqueville’s devastating critique of the effects of “individualism”; see Tocqueville 2004, 585–7.

292 steven b. smith 12. See Letters Written from the Mountain in The Collected Writings of Rousseau, Volume Nine, trans. Christopher Kelly and Judith R. Bush (Hanover: University Press of New England, 2001), 149: “The Author of The Spirit of the Laws went further. He said that the Muslim religion was best for Asiatic countries. He reasoned as a political thinker, and so do I.” Rousseau is probably here reflecting on Montesquieu 1989, XVI.2. 13. For a useful examination of the legislator, see Garsten 2006, 70–83; see also Meier 2016, 171–89. 14. “Letter to Voltaire,” in The Discourses and Other Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 245. 15. See Bertram 2009 for the claim that Rousseau’s adopted a Rawlsian model of an “overlapping consensus” in his treatment of religion. 16. See Hamilton, Madison, and Jay 2005, 281: “But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” 17. The best treatment is Ozouf 1988. 18. For Rousseau’s influence on the rise of nationalism, see Cobban 1964, 99– 125; Cohler 1970; see also Plattner 1997, 183–99. 19. Lincoln 2012, 10–11; for a fuller discussion of Lincoln as a contributor to the civil religion tradition, see Thurow 1976.

14 Entreating the Political Politics and Theology in Rousseau’s Social Contract Matthew W. Maguire

The Social Contract’s epigraph is foederis aequas Dicamus leges or “let us propose equal terms for the treaty.” From Book XI of Virgil’s Aeneid, in this passage King Latinus offers part of his kingdom to the fugitive-conquerors from Troy. It is a curious beginning for a book about politics that treats neither the subject of treaties, nor foreign relations of any description. Still more remarkably, the book’s conclusion approaches defiance about avoiding the subject it raised at its start. The final page of The Social Contract claims that treaties are among the subjects that ought to be included in a complete account of its subject, but they will receive no attention from Rousseau, since they are “too vast for my limited vision” (SC IV.9, 470).1 These opening and closing phrases are decidedly jarring. It is like a writer beginning a book with an exhortation to botanize, and ending it by declaring that he has neither the inclination nor the energy to broach the subject of plants. Yet if we read The Social Contract as a treaty – one that ends with a confession of abandonment – we may be able to find something in Rousseau that allows us to understand the multiplicity of interpretations attending the book. In its pages, Rousseau appears at once democratic and antidemocratic, a defender and critic of aristocracy, as advocate of a people shaped by a sort of exalted philosopher-prophet and as an apostle of Montesquieuian moderation, affirming at once a religion of man and citizen. Through these variations, Rousseau develops a variegated philosophical anthropology – and political theology – upon ancient foundations; finds it to founder upon a new 293

294 matthew w. maguire anthropology and political theology that for Rousseau is in substantial part true, but destructive of political flourishing; tentatively explores a characteristically – one might say archetypally – modern series of metaphors and analogies in search of a way forward, and finds it will not work. Yet does The Social Contract cohere at all? An initial reading finds it careening rather freely through and around its own constitutive terms. For example, the people are always sovereign, and their General Will can never err, yet the people are also a “blind multitude” in need of “guides” to see things as they are, and also as they “ought to be seen” (SC II.6, 380). The legislator is himself a “miracle” (SC II.7, 384), who creates ex nihilo, or “everything from nothing” (SC II.7, 386), yet Rousseau claims that he is simultaneously constricted by a profusion of geographic and historical circumstances, carefully descrying the possible within insuperable extrinsic limits (SC II.7–8, 385–9); furthermore, even within these limits, the people for whom he legislates enjoy the undying prerogative to undo his achievements (SC, III.18, 436). Similarly, the use of mathematical proportions and geometric observations for political argument appears repeatedly in the text, only for Rousseau to say that politics does not admit of mathematical and geometric precision (SC III.1, 398). Christianity as the “religion of man” is “holy, sublime, true” (SC IV.8, 465). It is also a kind of political despotism, a destroyer of unity among selves and social bodies – which makes it, as Rousseau memorably puts it, “worthless” (SC IV.8, 464). In fact, “true Christians are made to be slaves” (SC IV.8, 467). Reading through these apparently contradictory accounts of the same terms, one could imagine the complacency with which a certain kind of analytic philosopher of the last century would consign The Social Contract to their capacious category of “nonsense,” or a slightly later deconstructionist would inform us that the text “fails to mean.” These arguments are wrong, and the text means a great deal – for what it says clearly, for what it says with precise, intricate

entreating the political 295 ambiguity, and above all, for what it reveals when its intricate precision gives way. But with their focus upon disjunction and aporias, these kinds of readers point to something indispensable, something to which Rousseau gestures by declaring at its end that he has not spoken of treaties while beginning the book by invoking them. Like many treaties, the book is intended to settle boundaries, put an end to conflict, and forestall future conflict. The book opens with a remark about a treaty and ends by declaring its failure to discuss treaties not because it is carelessly written; rather, it is because it is itself a treaty, found within the pages of The Social Contract, not beyond it in an account of actual treaties among states. In the manner of many treaties, it does not spell out all its codicils and implicit understandings and ambiguities, because to do so would risk the renewal of the conflicts it is meant to resolve. Rousseau is sufficiently committed to ambiguity that the references to a treaty that begin and end the volume are placed under the titular (in every sense) notion of a contract. Rousseau is still more ambitious than he seems: He drafts a treaty addressed to distinctions not among states but among kinds of souls. It is Platonic in inspiration, not least Plato’s Republic.2 It attempts to settle some of the distinctions that many authors of the Enlightenment had, in Rousseau’s account, failed to heed. To understand what sort of treaty Rousseau intends, one must first understand its purpose. The book’s famous opening- “man is born free and everywhere he is in chains” (SC I.1, 351) – appears to promise a transnational, even universal emancipatory ambition directed toward the present and the future. But as several careful readers have pointed out,3 what follows is less often noticed. To the question of how this change happened, Rousseau claims not to know the answer; but to the question of “how it can be made legitimate,” he believes himself ready to offer an answer. His truce offers a legitimation of chains and hence of just and temperate restraint rather than omnidirectional emancipation, directed toward the future rather than the past. Rousseau uses the passive construction with

296 matthew w. maguire a prospective “can” (i.e., “how it can be made legitimate”) rather than assertive “I will make it legitimate” because while he can propose the agreement, it requires the concord of other parties to become actual, in the manner of a treaty. Not all chains are legitimate; above all, slavery’s bonds are emphatically not. Rousseau’s arguments against slavery are the most clear and consistent arguments in the book. Slavery is incompatible with any kind of law or right (droit) and the very terms “are mutually exclusive” (SC I.4, 358). Nearly as evident are the arguments against any order of hereditary aristocracy. He repeatedly calls hereditary monarchy “the worst of legitimate administrations” (SC III.10, 422, n.). These arguments demonstrate Rousseau’s willingness to argue with clarity; they are suggestive evidence that his no less explicit ambiguities elsewhere are purposeful. Three different groups – legislator, executive, and the assembled people, or citizens – are the primary parties to Rousseau’s draft treaty. They are all given freely what they most desire but are indeed simultaneously enchained, in the sense that while the goods they supremely desire are given them, those goods they desire less supremely are denied them. For Rousseau, this stands in rigorous contradistinction to certain currents within the Enlightenment, which offered the prospect of placing all goods within the reach of different kinds of people. The order of these desires is distinguished not only by intellect, but above all the kinds of recognition or honor one most craves. To understand how Rousseau’s treaty applies to modern politics, it is important to understand The Social Contract with reference to some of Rousseau’s other political writings. We have Rousseau’s explicit authorization for this turn. As he acknowledges in the Confessions, “everything daring in The Social Contract was formerly in the Discourse on Inequality; everything daring in Emile [which itself includes a précis of The Social Contract] was formerly in Julie.”4 From the beginning of his authorial career, Rousseau worried that the Enlightenment gave people better suited to honest work and

entreating the political 297 simple mores ambitions for which they were ill suited; it offered a kind of universal competition for merit, and a universal access to truth, about which Rousseau was at best ambivalent from the very start of his philosophical writing. The would-be geometer or poet, devoid of talent, would have been an excellent clothier.5 More generally, the desire of a broadly literate public to judge the writings of philosophers was foolish, since most people are better suited to receiving instruction than to offering criticism.6 People deserve to have their good judgment respected, but in Rousseau’s account, for most, the judgments they are competent to make are practical, egalitarian kinds of judgment that allow for healthy communities already established, those that apply the “sublime science of virtue” to issues immediately before their community; citizens should avoid political subtleties no less than open metaphysical speculation. From the First Discourse forward, Rousseau declared himself no less convinced that political office needed to be in the hands of those who by merit were most likely to wield it well, with those endowed with great intellectual ability and energy brought close to power in order to improve political life and allow people to lead virtuous lives.7 Yet Rousseau also believed – and this too was expressed from his earliest political writings forward – that the philosophes, a number of whom did have a gift for speculative thinking, did not understand that they needed to avoid flattering political power and pursuing contemporary applause, fame, and wealth for their own sake. Rousseau mentions Voltaire as a vivid example of this kind of modern writer.8 In Rousseau’s account, more radical authors within the Enlightenment also foolishly denied the power of religious belief and immortality to give people’s lives meaning and purpose, even if those beliefs were either not true or only possibly true.9 An enlightened age expanded the ambitions of people who were by nature unable to realize those ambitions, while depriving them of metaphysical and spiritual boundaries that make eudaemonic, virtuous, soul-shaping limits possible. They also refused to recognize that the more one’s exceptional gifts allowed one to inflect or even perhaps to give

298 matthew w. maguire distinctive shape to the morals and moeurs of souls and cultures, the more one needed to renounce wealth, contemporary honors, and visible political influence. With these abiding assumptions in mind, the treaty offered within the Social Contract comes into focus. Political leaders, citizens, and gifted political-philosophical founders all have an indispensable role in the flourishing of a legitimate political community, affording its members both virtue and happiness. Yet if they do not respect that a legitimate order must enchain each group to whom it gives prerogatives – as various authors within the Enlightenment had not done – the result is a blurring of functions, powers, and purposes that leads to a kind of macrocosmic political chaos expressing a microcosmic chaos of the soul. For Rousseau, an inability to recognize the capabilities, forms of freedom, and limitations rightly belonging to different kinds of persons is a real danger, even if he cannot entirely and consistently endorse or believe in the intricate and reciprocal hierarchies that he tries to draw from that recognition. Each group has a certain excellence matched to distinct boundaries. Their various tasks are divided as follows:

the people The people are and ought to be sovereign. While they do not give chairs or pensions (SC II.2, 371), as citizens they are superior to the modern bourgeois (SC I.6, 361, n.), always divided against himself and attentive to the desire for self-advancement.10 In fact, the people as sovereign have no master but themselves, and it is absurd to claim that they should have one (SC III.16, 432); the executive power is simply its officers, and the people have the authority to sack them (SC III.18, 434). They alone may legislate for their own polity (SC III.1, 395), and a law not ratified by the people is null (SC III.15, 430). The sovereignty of the assembled people can be neither represented nor alienated (SC III.15, 429): as living bodies forming a collective body, they must be assembled to be Sovereign. By expressing the General

entreating the political 299 Will, a community can be governed by the common good (SC II.1, 368); a government that does not express the General Will dissolves the political body (SC III.1, 399). In these passages – not everywhere, but repeatedly – Rousseau appears as a champion of carefully defined popular sovereignty, especially if that sovereignty is understood as a solidarity that allows each to enjoy the collective force of the General Will “while only obeying one’s self and remaining as free as before” (SC I.6, 360 and II.4, 374). Yet even as this rhetoric reconciles fierce personal independence and communal solidarity for large numbers of citizens, it repeatedly marks out the chains that bind the people. First and most famously, those who refuse communal solidarity will be obliged to join it, and thereby will be forced to be free (SC I.7, 364). Further, when the General Will is not unanimous, if a citizen’s view loses the vote, he must understand that his view was mistaken (SC IV.2, 441). The people have no role in applying law to particular cases (SC III.15, 430), nor may they implement it (SC III.3, 404). A sovereign people endowed with executive power leads to disorder (SC III.16, 432). Holders of political office can rightly find in Rousseau strict limits on the power of the sovereign people. The figure of the legislator also makes the law making capacity of the sovereign people somewhat ambiguous. Rousseau claims that laws must have some flexibility, since the legislator cannot “foresee everything” (SC IV.6, 455). The legislator in question appears to be the extraordinary figure who gives shape to the ultimate opinions and, as it were, shared metaphysics of the political community, rather than the people themselves. In fact, Rousseau says that the General Will issuing from the people is not always enlightened (SC II.6, 380) and that wisdom as such is beyond the reach of the people (SC II.7, 383). The people need illusions as well as truths, and they are, as noted above (p. 294), in need of “guides” since they are a “blind multitude.” The people in Rousseau therefore make all laws for themselves and experience a vivifying, eudaemonic sense of personal and

300 matthew w. maguire collective selfhood reconciling personal independence and communal unity. But the tasks of creating vivifying horizons of meaning and the ultimate boundaries of opinion for the community are not theirs, any more than implementing and applying its laws. Rousseau unambiguously affirms popular sovereignty and the capacity of each citizen to participate fully in the formation of law, without being a democrat, either in strictly political or in broader moral and philosophical terms.

the executive: officeholders and leaders The executive includes those endowed with abilities superior to that of the common people. In fact, for Rousseau there has never been a true democracy (SC III.4, 404), and merit deserves preference (SC III.5, 408), in a kind of elected aristocracy. In the best and most natural government, the wise govern the multitude (SC III.5, 407). It is these persons who will implement and apply all laws (SC III.4, 404 and III.15, 430) and pass judgment on all particular cases (SC II.4, 374). They will make decisions about the conduct of war and peace, including the declaration of war, which would certainly count for many as a supreme instance of political authority (SC II.2, 370). For all that, political leaders and officeholders find their authority suspended whenever the people are assembled (SC III.14, 427); they can be dismissed by the same people if that is the expression of the General Will (SC III.18, 434). Holders of office can apply and implement laws, but only at the sufferance of the people, even as they are powerless to engage in forming the moral and spiritual orientation that is the function of the legislator. Here and elsewhere – notably in On the Government of Poland – Rousseau emphasizes that the executive power must not be allowed to usurp the prerogatives of legislative power, a power that must belong to the people.11 In this way, those who wield power are enchained by their incapacity to make law or to give an orienting impetus to communal thinking and feeling. Yet they are given recognition for their excellence by holding offices that declare superiorities of character and

entreating the political 301 ability visible to and celebrated by their contemporaries. The appeal of their position is immediate, with perceptible rewards of power and honor.

the legislator In several passages of The Social Contract, Rousseau inclines toward immoderate rhetoric about legislators. These philosopher-founders are akin to gods, their souls themselves a miracle (SC II.7, 381–4). According to Rousseau, they have a particular and a superior function. Beyond law and political leadership, the legislator deals with mores, custom, “and above all opinion” (SC II.12, 394). For Rousseau, it is opinion rather than nature that “determines the choice of pleasures,” just as moeurs are connected to notions of honor (SC IV.7, 458), and with them a form of what subsequent modern philosophies would often call recognition. Legislators appear to transcend worldly limits; they impute their own wisdom to the names and voices of gods – in fact, they fake religious revelations to give their judgment the imprimatur of created nature and divinity. Among other “common [grossiers] expedients,” Rousseau speaks of legislators claiming to receive divine messages from a bird. Here, Rousseau suspends his anathemas against representation, while maintaining his conviction that representation is essentially dishonest; it is the legislator who represents gods or God (SC II.7, 383–4). Every instance of the legislator marks the appearance of a “great and powerful genius” (SC II.7, 384), and it is the property of true genius to “create everything from nothing” (SC II.8, 386). Their prototype is not the honest citizen, nor the skillful politician, but Lycurgus and others who “instituted” a people (SC II.8, 385 and II.10, 390). While appearing to confine himself to more modest specific questions (SC II.12, 394), the legislator makes the laws of the state appear to be the laws of nature or divine mandates, and hence people “obey freely” and bear with “docility the yoke of public happiness” (SC II.7, 383). The legislator sets the metaphysical

302 matthew w. maguire horizons that will make the sound judgments of the General Will possible. The rhetorical grandiosity that attends the appearance of the legislator in the Social Contract is meant to inspire daring pride – or an imaginative identification with others who are so daring – pride that does not need the assumedly lower, “vain” need to be recognized by contemporaries. Those sorts of honors belong to members of the executive; in Rousseau’s account, the legislator cannot hold any formal political office (SC II.7, 383). He must carry the people with him “without violence” and “persuade without convincing.” He must find his superiority in his reticence, and his vindication in the thought that he will be appreciated after his death for his greatness (SC II.7, 381), even though he must be content to imagine this posthumous vindication rather than being recognized by his contemporaries. Rousseau also acknowledges that the legislator does not, in fact, create everything from nothing. His work requires highly specific historical conditions (SC II.10, 390–1), often those associated with a youthful people that has recently formed a sense of shared community, or a people that has just experienced a revolution. A people can acquire freedom, but only very rarely and in extraordinary circumstances recover it (SC II.8, 385). In truth, the legislator must both understand and accept the nature of things without himself, lest he fail. In the end, “invincible nature” itself will reassert its power (SC II.11, 393) and undo the work of the legislator’s constraint upon perfectibility (Rousseau’s term for the desire to realize imaginatively articulated desire directly in the world of persons and things), and the passions it seeks to satisfy in the world. Through his tripartite account of the different sorts of persons in a legitimate polity, Rousseau hopes to create an equilibrium between the possibilities of popular power, elite rule, and philosophical-political founders, who give shape to general opinion, especially about pleasure and honor. Rousseau’s proposed political order sets “equal terms” in the sense that all three groups are given what they

entreating the political 303 most desire, whether it is both individual dignity and collective assertion against putative superiors, or wielding administrative power and winning explicit, contemporary honor, or alternately, by the discreet, proud assumption of divine authority, and the anticipation of posthumous greatness (and perhaps encouraging others who more passively identify with this kind of soul to silence themselves discreetly upon certain fundaments of political order, as Rousseau understands them). Each of these kinds of persons enjoys real and potent prerogatives, but the treaty only works if they do not trespass their boundaries – that is, if they accept what they have gained along with their chains, perhaps only dimly aware of their constraining power. Rulers who wish to be philosopher-founders, philosopher-founders who wish to rule directly – and worse, see the assumed falseness of religious revelation as something to be proclaimed rather than used – are dangerous. So are citizens who wish to pass judgment upon questions of ultimate meaning, pleasure, honor, and purpose, or who wish to exercise direct executive power, rather than the power to make laws for all. All these forms of “chain-breaking” are destructive of legitimate political order and prevent individuals from freely exercising the kinds of authority proper to the sorts of people they are, leading to internecine divisions (within both communities and persons) without a good or happy resolution. So far, it seems The Social Contract is only apparently at odds with itself. It is a skillfully written treaty to secure concord among the different sorts of persons comprising a flourishing political community. Like many treaties, it includes language of forthright assertion that brooks no ambiguity – in this case, against hereditary aristocracy and slavery. It also deploys a language of purposeful ambiguity that rewards careful reading. Yet this by no means dispels The Social Contract’s ambiguities. First, as we have seen, we have a book that announces itself in its first pages as a fragment (SC, Avertissement, 349) and ends with a confession that the author’s vision of his subject is too weak for his original conception, with a short description of the relevant topics

304 matthew w. maguire abandoned (SC IV.9, 470). This is, to put it mildly, not Rousseau’s usual manner of making his presence known to his readers. For example, the First Discourse begins by declaring its author someone who intends to live beyond his “century”12 and proceeds to speak of the rise and fall of states over some twenty centuries. The Second Discourse announces that amidst so many lies, Rousseau has consulted the book of nature, which never lies, and promises readers that they will understand themselves and the history of their species anew.13 Emile announces at the start that it is a work addressed to the happiness of humankind14 and sees it through to the end, and to the start of a sequel. The Confessions begins with Rousseau issuing a defiant challenge to God himself at the Last Judgment, declaring himself unique among all human beings,15 and proceeds to narrate his life from his own birth up to the public reading of the Confessions itself. In The Social Contract, there are opening moments of rhetorical grandeur (“Man is born free” . . .), but the beginning and end of the text are anomalously tentative. No less than its turn to the language of a compact among distinct groups, Rousseau’s rather limited, defeated assessment of his own project is confirmed by the epigraph from Virgil: In the passage from the Aeneid chosen by Rousseau, King Latinus offers equal terms not as a victor over his foe but as a defensive measure, and the proposed treaty fails. Aeneas conquers the kingdom and fuses his family line with the defeated people, founding Rome. Rousseau seems to find himself defeated as well. Yet what has defeated him? Given the extended denunciation that appears at the end of The Social Contract, there is an immediate answer: Christianity, and what Rousseau calls the religion of man. Yet there is a deeper answer disclosed by Rousseau’s unambiguous inability to resolve a set of ambiguities. That answer is also ultimately profoundly connected to Christianity, but in a different, subtler, much more revealing way – and surprisingly, aligns itself with what is perhaps the most influential statement of early modern natural philosophy.

entreating the political 305 We have already seen that the forms of division and incoherence working their way through modern society unsettle Rousseau, in which common people seek distinction in the arts and philosophy, while those of great intellect yearn for contemporary applause, riches, and influence, and leaders trample the rights of citizens and fancy themselves entitled to do so by birth. For Rousseau, these apparent confusions can be understood as a broad yearning to occupy the highest ranks of society, and to enjoy some unbounded good. Yet where does this confusion come from? Among its preconditions must be Christianity, which announces a universal kingdom of original, ultimate, and universal peace separate from political authority, one that fundamentally upends the orders of rank in pagan societies to which Rousseau often turns sympathetically, both within and beyond The Social Contract. For him, Christianity has also forever broken the bounded unity of secular and sacred authority within the state (SC IV.8, 464–5), and with it the citizen’s unity of soul (SC IV.8, 464). Torn between his allegiance to two cities, the soul of the citizen at once seeking immortality in a salvation open to all, and the ambitions and demands of his particular community in the world with its attendant gradations of thisworldly virtù, the Christian of any political community is divided against himself, making the constitution of the state and of individual citizens divided, unhappy, and incoherent. Approaching the state of those eager to enrich themselves or who are content to have their political activity represented by others – these persons are already slaves, according to Rousseau’s expansive account – Christians, without the desire for admiration, recognition, and glory, are ready to be slaves, the “slaves” that semi- or postChristian moderns have in Rousseau’s account actually become. In Hannah Arendt’s terms, they desire eternity (atemporal contemplative bliss) rather than immortality (posthumous fame for their worldly excellence).16 A Christian people cannot really become citizens, cannot revere the law, and the unified expression of the General Will inevitably becomes obscure and uncertain.

306 matthew w. maguire No longer ultimately separated from other peoples by sacred law – but rather knowing their ultimate spiritual unity and equality – for Rousseau, the true Christian is also an incompetent citizensoldier, lukewarm in fighting spirit and prompt to concede defeat, assuming it is an immediately legible manifestation of God’s will (SC IV.8, 466–7). As if the true Christian’s passivity were not damaging enough, for Rousseau, Christianity’s demands to live life by love engender an unbearable hypocrisy, which, in order to secure obedience to revealed ways of life that its members cannot follow or perhaps fully believe, turns its leaders toward a violent despotism to secure power (SC IV.8, 462). The power of the Church also divides the executive. Endowed with powers of excommunication and damnation, the Church cannot damn but can nonetheless threaten leaders and citizens with a loss of infinite life (SC IV.8, 462–3), and the executive has no sanction of that magnitude to apply in particular cases – though decisions in particular cases are its legitimate function. The leaders are no longer considered the best, unless they are also saints, and for Rousseau no less than for Machiavelli (who is repeatedly cited approvingly within The Social Contract), that is not desirable. Specifically political functions lose their unity of execution and purpose, and the evident disagreements of spiritual and temporal authorities weaken the state. Hence, Christianity itself has “made all good polity impossible in Christian states” (SC IV.8, 462). Christian universality also reaches beyond the state, depriving the political community of a religion uniquely suited to its unique circumstances (following Montesquieu, for Rousseau these are variously geographic, economic, and historical). Here and elsewhere in his writings, for Rousseau, Christ indeed gives a broadly valid and appealing account of universal moral duties and truths about human nature,17 but it is politically destructive. Now, whether they are republics, elected monarchies, or bucolic self-governing cantons, all political bodies must worship the same God with similar if not identical rites, prayers, and commitments of belief and action. To make

entreating the political 307 matters worse, for Rousseau there is no practical possibility of returning to “exclusive national religion” after this universal spiritual Kingdom enters the world (SC IV.8, 469). In this way, with the advent of Christianity, the legislator is given greatly reduced means of calling upon a religious revelation of his own fashioning to justify his work in shaping a unifying regime of opinion upon fundamental questions of morals and communal life, and of giving souls their due in accordance with their earthly circumstances and dispositions. This restriction upon creative – if false – divine revelation is for Rousseau a disastrous limitation upon politics. He is emphatic upon this point: God or gods lead all political societies (SC IV.8, 460), for “never was a state founded without religion serving as its foundation” (SC IV.8, 464). For Rousseau, after Christianity, the divine is already behind, above, and before the legislator, and the situation is irreversible (SC IV.8, 462). According to Rousseau, Muhammad’s views were more “sound,” but even these have been corrupted by political-spiritual claims that have come to bear a striking resemblance to Christian ones, above all in Shia Islam (SC IV.8, 463). Given its threat to his three orders of legitimate political activity, Rousseau concludes that for his treaty to work for modern political bodies, or at least inspire functional approximations to itself, it will require a radical revision to Christian life. This revision must be in the spirit of and yet still more radical than that of Hobbes, whose corrosive account of human moral and spiritual motives was, according to Rousseau, unable to tame “the dominating spirit of Christianity” (SC IV.8, 463). Hobbes sought to bring Christianity under the complete control of the secular leader in radically Erastian fashion, and to sow doubt about Christian doctrines without overtly rejecting them. For Rousseau’s truce to work, he must not only control the formal doctrine, ritual, and institutions of the Church as Hobbes proposed, but must reach into the soul of citizens and give it an unquestioned creed of spiritual abstraction stripped bare of distinctively Christian expression.

308 matthew w. maguire Christianity itself must become “purely interior” (SC IV.8, 464), without public issue or consequences beyond the civil Deism that sustains the state. In any public fora, it is reduced to a minimal moral code affirming the immortality of the soul, the rewards of justice, and the punishment of evil, along with – and this is indispensable for Rousseau – the sacral nature of both the social contract and the laws of the community. This civil profession is, in a crucial passage, not to become the object of explanation or commentary (SC IV.8, 468), and thus faith is forbidden from seeking understanding, and cast outside the ambit of public reason. For Rousseau, it is under this dispensation that the people can properly become sovereign, assembling without interference from the demands of a morally legitimate, universalist Kingdom with a complicated relation to civil law that divides citizens within and among themselves. Second, only under these conditions would the executive be freed from the interference of clericalism that presumes to place itself in relation to an invisible universal Kingdom, at the expense of the republic in which they live, and the recognition due its leaders. Finally, it is only in this arrangement that the legislator – after the advent of Christianity – can have a reduced but still substantive means to call upon some measure of spiritual authority to sanctify his labors while working within a predominately immanent political logic. After Rousseau’s “civic deist reduction,” there is no notion of abiding and transcendent love that issues in distinctive action. Only the legislator is permitted to exceed the law, and only to sanction a particular temporal law with what appears to exceed it. In this way, the Church – the ἐκκλησία, or “assembly” – no longer threatens the legitimate, specifically political assembly of the people. Theology no longer menaces philosophy. The law of love no longer fulfills the law, nor does love transcend the law. Yet here, Rousseau finds himself in a strikingly circular position. As we have seen (p. 307), he argues that the divine is required for political society, and that all politics has religion “as its foundation.”

entreating the political 309 But in his own legitimate polity, religion has no real foundation but politics and political utility. Politics has religion for its foundation, which in turn is founded upon politics. Perhaps politics is therefore first philosophy, and religion a subordinate form of concealed politics. But can politics serve as first philosophy? Must it not have some account of the motive and ends of common activity connected to what human beings are and what they are for that is not itself wholly or even primarily political? Whatever the Platonic resonances of Rousseau’s tripartite account of political activity in a republic, it can be very strongly doubted that Plato – in his account of noetic intuition, the Forms, and much besides – understood politics to ground itself. For him, the common good must rely on some comprehensive notion, or Form, of the Good.18 Rousseau therefore must enter a different kind of philosophical territory, fundamentally changed since the centuries of Lycurgus or Plato. To explore it, Rousseau works within a distinctively modern division: to be precise, several openings of language, or figurative speech, that orient and frame political activity toward something determinate beyond politics, with implicit origins, processes, and ends for the ultimately real and best order of our lives in common. Rousseau is compelled to evoke them throughout The Social Contract to escape the inability of politics to account for itself. The commitment to this particular configuration of modern metaphors and analogies is not invariable. In The Social Contract, Rousseau occasionally describes political order through an established, even venerable figurative economy. The legislator, for example, is compared to a great architect (SC II. 8, 384), as Plato, Aristotle, and Thomas Aquinas had described various kinds of political leadership before him.19 Yet in Rousseau, a comprehensive and just political order is also forcefully and repeatedly described as a machine. It is amenable to construction by exceptional persons, who know what they make and how to use it, as a kind of superlative instance of homo faber. Unsurprisingly, this account of politics as a machine for lives in

310 matthew w. maguire common is associated with – though significantly, not invariably attributed to – the legislator. For it is the legislator who “invents the machine” (SC II.7, 381). Yet it is no less true that in a monarchy, “all the springs of the machine are in the same hand” (SC III.6, 408). Perhaps it works by abstract laws associated with early modern physics. They are analogous to those governing inanimate objects rather than people, revealingly compared to “Descartes’ vortices” (SC II.9, 388). For Rousseau, political order is a machine that is also simultaneously alive, part of the common life of human beings, as beings endowed with organic life, body, soul, and will. The social pact gives life to the political body (SC II.6, 378); the executive is like “the union of the soul and the body” (SC III.1, 396); “the legislative power is the heart of the state, the executive power its brain” (SC III.11, 424). Beyond metaphors of life, Rousseau includes traditional figures of flourishing for political life: the state of the citizenry can be healthy or sick (SC IV.4, 452–3), and the state is born and must ultimately die like other mortals (SC III.11, 424). At still other intervals, the political communities and governments are variously between life and machine: if it is not a great building as above, the government is, as it is in Hobbes, “an artificial body” (SC III.1, 399).20 Yet in Rousseau’s own note, the sifting of particular interests from the General Will testifies that politics is such is not a body at all, but a form of “art” (SC III.3, 371) – and thus neither a living being nor a mechanism, but a kind of unity of distinct elements in time, and hence a narrative art, just as the legislator’s factitious

revelations

must

be

narrated

to

the

people,

as

a transcendent origin that shapes their shared story. These orienting figures for the political are not only distinct, but in no way reconciled: Rousseau can propose no treaty, let alone on equal terms. He runs in every direction to escape the political becoming merely political, so that it can be conceived from beyond politics; as the invention and maintenance of a machine, the treatment and functioning of a living body, or an artistic creation partaking in narrative art. But he cannot conceive of these potential radiants of escape

entreating the political 311 from his theological-political circle in any rigorous, productive relation to one another. It is very well to claim, as Rousseau does, that liberty and equality constitute “the greatest good of all, that must be the end of all systems of legislation” (SC II.11, 391). Rousseau’s figures imply different courses of thinking and action, and different accounts of political life. Even if one were to grant Rousseau the eudaemonic imperatives that characterize so much of his thought, it appears that such a happiness cannot afford even to suggest a clear ordering of these points of departure: the people will not find their virtue and happiness in an account of their common life that makes them cogs functioning within a “machine” created by another. Artistic creation and the operations of abstract rationality have distinct origins, means, and ends. These crossed ways of understanding are in no way the subject of Rousseau’s abortive treaty. Quite the opposite: in The Social Contract, some of Rousseau’s most intensely lived philosophical tensions throughout his writing rise to the surface and remain politically unreconciled. Not least among them are the possibility that the people around him can have hearts desirous of happiness, and that he himself wants above all to “see all hearts content,” and yet his contemporaries are also identified as “mechanical beings” whose actions he can “calculate by the laws of motion”; where heart and soul give life, and life in abundance, and then this animated life is labeled as illusion amidst the infinite flux of imagination, where Rousseau wishes to abandon himself to reverie prompted by immediately sensible impressions – though in the same writing, he finds in “general and abstract truth” the “most precious of all goods.”21 Yet the precise configuration of Rousseau’s figurative congeries does not lead simply to his own inner ambivalences; nor does it lead back to Hobbes or Locke – the two philosophers often thought to have most heavily influenced The Social Contract. Rather, they recall Descartes’ language with astonishing precision. They share – or at least converge upon – a nearly identical figurative language for their philosophical projects.

312 matthew w. maguire This language seeks to combine the legislator of pagan antiquity with an abstract yet constructive universal reason. It conjoins a powerful but politically powerless truth to the need for the compelling language of story, embodied in persons, all of these nettled by an ambient universality that vexingly, perhaps tragically, fails to acknowledge what both thinkers understand to be forms of human superiority, above all philosophical ones. Their figurative impasses ultimately require God to authorize and unite distinct and often disparate aspirations. In the Discourse on Method, Descartes promises to live by moral convention and prevailing custom while a new “lodging” or house of moral order is being built.22 Yet beyond the traditional architectural metaphor that Rousseau also deploys, for Descartes (as for Rousseau) life can also be understood at once as an organic phenomenon (as in Descartes’ extended summary of Harvey’s discoveries about the heart and circulation of the blood) and also as a machine, at the very least in prospect. For Descartes, this organic-life-asmechanism assumption applies to the whole of animal nature. Upon a hasty reading, Descartes appears to limit his account of “human life as a machine” to a hypothetical being that lacks reason.23 But in his account of a provisional morality that he will accept while a “house” of morality is being renovated, Descartes accepts misfortunes beyond our power, including illness, because “now” (the temporal modifier abruptly appears) we cannot be half-mechanical beings: that is, we cannot now have “bodies of a material as incorruptible as diamonds, or wings to fly like birds.”24 The Discourse intends to impart a rigorous method for achieving secure knowledge, not least abstract truths about God and the world directed toward the cumulative advancement of natural philosophy and with it, the mastery of nature. Yet according to Descartes, the Discourse itself is not a demonstrably certain enterprise at all, but an artifact of narrative art, to be precise a “story” (histoire) or still more strongly, what he calls “a fable.” He explains that fables and histories persuade through selective omission and creative narrative

entreating the political 313 invention designed to edify and inspire without being true, or the whole truth.25 In terms that anticipate The Social Contract’s own ambiguities about popular sovereignty and extraordinary persons who give shape to the thinking of others through narrative, Descartes also struggles with a specifically epistemic popular sovereignty and the need for a superior sort of person who both poses the questions and proposes the answers through which a more general population will work and move, often assuming their constricted vision. For Descartes, “common sense is the best distributed thing in the world.”26 The gifted natural philosopher, however, has an exalted task that the enthusiasm and participation of less gifted souls makes obscure, slower, and more difficult.27 They are very nearly what Rousseau would describe as indispensable groups of ordinary people who are also a “blind multitude.” For Descartes no less than Rousseau, the model for discovery in his field would be someone who understands the work of what Descartes calls a “prudent legislator,” and he, like Rousseau, finds the legislator’s historical archetype in Lycurgus. For Descartes, the “flourishing” of Sparta was due to the fact that its laws, “having been invented by a single person . . . tended to the same goal,” and thus made for good order.28 Like Rousseau’s legislator, Descartes’ legislator of natural philosophy needs God to escape the difficulties of their common figurative congeries. For Descartes, it is God who guarantees the general reliability of our sense experience of the world and our reasoning about the world ; second, it is the specifically Christian injunction to love one’s neighbor that justifies the preeminence of medical enquiry, and with it, the preservation of life and health for all people, rephrased as more abstract general good. We cannot fail to see that scientific and specifically medical knowledge cannot be hidden without “sinning greatly” (the Christian resonance of “sinning” is unmistakable) against that law that “obligates us to procure as much as we can the general good of all men.”29 Descartes’ God serves both as guarantor of the trustworthiness of our sensations and our reason

314 matthew w. maguire (i.e., identifying causes in nature), and as the foremost ethical impetus toward a scientific and specifically medicinal end, a benison for human beings as such. Yet why does the figurative configuration of Descartes’ Discourse succeed in completing and propagating itself with its indispensable theological referent, where the same aspirational figurative economy of The Social Contract fails to allow the author to complete his own project? Why does Rousseau’s project collapse precisely when it turns toward its theological referent? Descartes’ God orients the Cartesian-Rousseauian figurative language toward the acquisition of material knowledge, and the technique through which he intends to see it secured. Further, Descartes’ figurations promise that human beings can become the “masters and proprietors of nature”30 – on behalf of our immediate material desires, above all for our individual well-being, initially establishing the divine simply so that we can trust what we already sense. Rousseau proposes to mortify those same self-regarding desires in order to make communal happiness within an ineluctably sacred order; for things not just to be seen as they immediately are, but as Rousseau puts it, “sometimes as they ought to be seen” (SC II.6, 380). Working with more spontaneous self-seeking and immediately visceral passions tending toward material goods, Descartes, as a kind of natural-philosophical Lycurgus promising the conquest of nature and with it aging and death in the world we sense, need only invoke a vague God vaguely demanding moral obedience – and in an explicitly provisional way – to license his project. In The Social Contract, while God or the gods’ relation to a people does not create that people, it does mark its origin as a people of laws, in which the divine serves originally and eternally, or at least originally and immortally, acting continually to keep the citizens’ hearts from hearkening unto themselves, and upholding a communal purpose beyond the limits of the saeculum, for as long as the political order can forestall decline. It is a far more demanding and comprehensive task than the acquisition of knowledge in pursuit

entreating the political 315 of health, control of nature and its enhancement, and with them the indefinite postponement of death. It requires the sacrifice of immediate and individuating passions (in Emile, Rousseau revealingly calls this sacrifice “denaturing”),31 and hence an infinitely present and no less discrete God. Asserting the necessity of divinely authorized law, Rousseau pursues abstract, reproducible and immanent truth for political order as such, and so he cannot offer any substantive theological particular any more than he can affirm a divinity addressed to a particular people. Having denounced the political effects of what is for him an ethically legitimate theological universality, he has nowhere to go. He finds there is no way to give the impress of the divine or find a plausible theological ground or end for what he wishes to accomplish, despite being convinced, by his own explicit acknowledgment, that politics requires a divine foundation. Geneva has broadly and quite imperfectly approximated something closer to Rousseau’s hopes, but it too will soon fail him, not least because he published The Social Contract. The minimalist Deist civic profession, the benison of the divine upon the laws of the state, is insufficient for the task Rousseau has set himself, as he acknowledges. Immediately after this chapter, Rousseau ends the manuscript. Yet the search for the origins of The Social Contract’s figurative language does not end with its remarkable resemblance to Descartes’ own figurative language in the Discourse on Method. These congeries of language receive their ultimate authority from the theological economy that both Descartes and Rousseau wish to challenge and reorder, if not to supplant, with a kind of embodied legislator placed in the position of divine and specifically incarnate authority. It is this theological order that is the ultimate source of the configurations they reconstruct as an artificial, rationally animate narrative assemblage. For it is the Johannine λόγος, or logos, that is simultaneously reason and logic, as well as language, word, or story. It allows for a universally constructive and abstract reason embodied in narrative and life, a reason that also creates what Rousseau in The Social

316 matthew w. maguire Contract calls, in an access of enthusiasm, “everything from nothing” – or in properly Johannine language, “through him all things were made.” This revelation offers an irreducibly personal creative authority over fully alive, created physical beings that are simultaneously capable of individual and communal freedom, authorizing particular, purposeful action in a world of mortality, embodied in divine being also fully, humanly vulnerable to worldly violence and without formal office or political power, speaking in ordinary language among a discrete people, and also addressed to human beings as such. Descartes’ and Rousseau’s figurative language reduces these depths to a theologically “reduced” figurative economy of conscious artifice: it moves from story understood as truth to story as “fable,” from embodied transcendent truth to the abstractions of the modern philosophical legislator. Taken separately, these figures appear as disjecta membra from pagan and modern sources, yet as a combinatory sequence and integral composition, they are unmistakably drawn from Christian revelation. Inspired by or converging upon Descartes’ provisionally successful configurations, Rousseau’s political project is not even provisionally sustainable and fails. Yet Rousseau’s failure is still more revealing than Descartes’ success. Rousseau turns in form and figurative economy to the very revelation that he found inimical to good government. Deep into his great work of political philosophy, he discovers that this apparently politically pernicious revelation beyond human law can be denied, appropriated, criticized, extended, interpreted, redirected, and dismembered – but not replaced. Whatever his interest in the political as a machine, Rousseau had no enthusiasm whatever for the Cartesian ambition to become “master and proprietor of nature,” nor did he warm to the prospect of eventually creating cyborgs that fuse human flesh with diamondstrong materials, endowed with artificial wings that allow us to fly. Rather, he admired the ancient legislators who dared proclaim that they had received divine revelations in conversations with birds.

entreating the political 317 Rousseau, amalgamating language and aspirations converging upon the revelation he criticizes so fiercely, realized that those winged fatidic phantasms – in the end, indispensable for his philosophicalpolitical ambition – had taken flight long ago and could not return. Abruptly ending his political-philosophical masterpiece, increasingly he turned to writing dreams and imaginative memories that, through exaltations of imagination, would rise beyond all artifices and disciplines of citizenship and legislating, so he could himself take wing. No longer a citizen, increasingly reluctant to present himself as the stern and sober sage of the commons, in the Confessions, the Reveries, and beyond, Rousseau wrote of vertiginous interior journeys that promised to deliver him from all calculations of gravity: “readers, a public and all the earth, what did they matter to me as long as I soared in the sky?”32 It is preeminently this interior flight that emerges from the impasse at the end of The Social Contract. Not only in Rousseau, but throughout the nineteenth century and beyond – as far as twentieth-century modernists like Fernando Pessoa – it was this journey of imaginative self-becoming that was thought to be the most powerful alternative to the ongoing mastery of external nature wrought by the positivist descendants of Descartes. Yet we now see that the figurative configurations of Descartes and Rousseau were at a crucial point in their philosophical trajectories the same. Further, these figures better sustained and furthered Descartes’ project that they did Rousseau’s – and from them the late turn in Rousseau’s writing is, in every sense, a flight rather than a solution. In our own time, the life of interior, fantastic becoming and of positivist science are converging, producing anomic and fragmented public spaces. It is not a coincidence that they do so at a time when even a modest and capacious theism has moved to the outermost margins of public speech and reasoning. Mediated through technology, individuating imaginings and the mastery of nature are increasingly one, as we remake nature according to the demands of fantastic desire, as our desires are shaped by the accelerating mastery of nature. In this way, it is not only the case that attempts to revive thinking

318 matthew w. maguire about citizenship in which Rousseau’s political thought participates and to which it contributes – from Rawlsian liberalism to the neoRepublican freedom of Quentin Skinner33 – have not had the impact upon our common lives for which their advocates hoped. It is also the case that Rousseau’s late, at once self-transcending and self-exalting solution to the impasse of The Social Contract increasingly reveals its only apparent antagonistic relations to the Cartesian mastery of nature, relations that now compound their shared imperatives and jointly impoverish our common life. We do well to attend closely to The Social Contract, not only to explore its remarkable conceptual intricacies, but to reflect upon its incongruous abandonment, and with it, its philosophical and theological origins. Opening up these long-submerged depths, we can move through and beyond some of the collapsed antimonies of modern thinking.

notes 1. All page references, unless otherwise noted, refer to the Pléiade edition of the Social Contract in Jean-Jacques Rousseau, Oeuvres complètes, ed. Bernard Gagnebin and Marcel Raymond (Paris: Bibliothèque de la Pléiade, 1959–95). Hereafter, the Oeuvres complètes will be abbreviated as OC, followed by manuscript title, volume, and page number. For citations from the Social Contract, books and chapters will be marked in-text. Rousseau does address foreign relations in other writings, though one of the best known of these writings is a commentary on another author – that is, the Abbé Saint-Pierre, and the extract from his “Project for Perpetual Peace” (OC, III, pp. 563–612). Absent attribution to others, all translations are my own. 2. While there are important differences between Rousseau’s account and Plato’s, the Platonic differentiation of souls (with upward and downward mobility according to merit) is a notion for which Rousseau expresses an abiding sympathy. See Plato, Republic, book III, 414c–417b, especially 415b–c. For Rousseau’s sympathy with a rank order of persons according to their capacity for wisdom as he understands it (which for Rousseau is always shaped by a desire for general human happiness), see Maguire 2006, 93–110. For a different, comprehensive and insightful account of Rousseau’s relationship to Plato, see Williams 2007.

entreating the political 319 3. See, for example, Damrosch 2005, 346; see also Christopher Kelly in this volume, Chapter 3. 4. OC, I, Confessions, p. 407. 5. OC, III, Discours sur les sciences et les arts, p. 29. 6. See in particular Correspondance complète, 52 vols., ed. R. A. Leigh (Geneva: Institut et Musée Voltaire, 1965–95), vol. 3, Rousseau to Voltaire, September 7, 1755, Letter 319, p. 165. 7. OC, III, Discours sur les sciences et les arts, p. 30. 8. Ibid., p. 21. 9. For example, see OC, IV, Emile, pp. 633–5, Rousseau’s note. 10. OC, IV, Emile, pp. 249–50. 11. See OC, III, Sur le gouvernement de Pologne, esp. p. 977. That said, here – unlike in the Social Contract – Rousseau allows for the possibility of representing the legislative power. 12. OC, III, First Discourse, p. 3. 13. OC, III, Second Discourse, p. 133. 14. OC, IV, Emile, p. 242. 15. OC, I, Confessions, pp. 3–5. 16. See Arendt 1958, 17–21. 17. See, for example, OC, IV, Lettre à C. De Beaumont, especially pp. 960–2, and “Morceau Allégorique sur la Révélation,” pp. 1053–4. 18. For an interesting discussion of the common good in Plato and its influence upon Rousseau, see Trachtenberg 2001. 19. See Plato’s Statesman, 259e; Aristotle, Nicomachean Ethics, 1152b; Thomas Aquinas, De Regno, I.10.69. It is noteworthy that Thomas bestows the architectural task upon the ruler rather than anyone resembling a Rousseauian legislator, while Aristotle finds the political philosopher to be most analogous to an architect. For more on Plato’s and Aristotle’s use of architectural metaphors, see Landrum 2015. 20. See Hobbes 1968, Leviathan, II.21. 21. See OC, I, Les Rêveries du Promeneur Solitaire, pp. 1058 and 1078; Lettres à Malesherbes, pp. 1140–1; Les Rêveries, p. 1026. 22. Descartes 1953, Discours de la méthode, p. 140. 23. Ibid., p. 164. 24. Ibid., p. 143. Emphasis added upon “now.” 25. Ibid., pp. 127–9. 26. Ibid., p. 126.

320 matthew w. maguire 27. Ibid., p. 136 and pp. 175–6. 28. Ibid., p. 133. 29. Ibid., p. 168. 30. Ibid. 31. See, for example, OC, IV, Emile, p. 249. 32. OC, I, Confessions, p. 162. 33. See Rawls 1993 and Skinner 2012.

15 Civil Religion and Political Unity Social Contract IV.8 Ryan Patrick Hanley

Religion at once unites men and divides men. Few have understood this truism and its implications better than Rousseau. And indeed, Rousseau’s treatment of civil religion in Social Contract IV.8 is itself best understood as a sustained and penetrating effort to grapple with religion’s capacity to both unite and divide. Yet putting matters this way immediately prompts a number of questions. Not least among these is the question of what exactly we mean by unity. Rousseau himself famously speaks of unity in several different ways. At times, he focuses on the unity of the individual human being: the psychological unity of the human being’s heart and mind. At other times he focuses on the unity of a state: the civic or national unity binding citizens or institutions into a whole. And at yet other times he focuses on the unity of humanity: the international or cosmopolitan unity that leads human beings universally to identify with each other. With which of these types of unity is Rousseau’s treatment of civil religion engaged then? The simple answer is: all three. Of the three, the least emphasized in the chapter is psychological unity. Rousseau’s most important treatment of the relationship of religion to psychological unity is of course not to be found in the Social Contract but Emile. Yet even in Social Contract IV.8 we find a brief but explicit statement of this core theme of the Savoyard Vicar’s profession of faith. But the main focus of Social Contract IV.8, in keeping with the key themes of the book as a whole, is political rather than psychological, and thus it is religion’s relationship to national unity and international unity that must primarily occupy us here. 321

322 ryan patrick hanley As I hope to show in what follows, at the core of Social Contract IV.8 lies Rousseau’s recognition of the profound and perhaps intractable tension between these last two forms of unity. Put in terms of a question, Rousseau here asks: What form of religion brings both national unity and international unity? Or, to put it in terms of its obverse: What form of religion overcomes national division without fostering international division? The import of this question for politics is immediately obvious as soon as we reflect – as Rousseau at the very start of the chapter invites us to do – on the fact that no established religion has yet squared this particular circle. And yet for all this political significance, this question also has another significance. To help us see this other side of its significance, Rousseau uses a specific vocabulary in this chapter. What I have thus far called “civic” or “national,” he calls particular, and what I have called “cosmopolitan” or “international,” he calls general.1 Restated in his terms, the central question at the heart of this chapter is: What (if any) religion is capable of bringing unity to, and thereby reconciling, particular society and general society? Viewed thus, Rousseau’s account of civil religion in Social Contract IV.8 demands to be seen in light of his efforts to reconcile general and particular providence in Emile and Letter to Voltaire, and his efforts to reconcile general and particular wills in the first books of Social Contract. My aim in this chapter then is to show that Rousseau develops the account of civil religion that concludes his Social Contract with an eye toward political unity. In so doing, I follow a path blazed by several previous commentators, who have long argued that Social Contract IV.8 is concerned with civic religion’s “ability to strengthen the unity and stability of the State,” with “the necessity of religion for social and political cohesion,” and with the need to “reforge religion’s civic ties.”2 What I hope to add to this now generally accepted view is a renewed appreciation of the specific type of political unity that Rousseau aspires to realize via civil religion: not political unity in any ordinary sense, but political unity that is at once national and

civil religion and political unity 323 international, at once a unity of the particular society and a unity of the general society.

history, religion, and political division Rousseau’s discussion of civil religion in Social Contract IV.8 is, as commentators often note, roughly divisible into three parts.3 The first part is historical and focuses on two particular stages in the historical evolution of religion: the rise and fall of paganism, and the advent of Christianity. But it is important to see from the outset that Rousseau’s seemingly historical treatment is at once a theoretical treatment of the key problem that religion poses to politics. For it is in this historical section that Rousseau introduces and defines the problem of political division as it relates to religion. For as he here means to make clear, wherever there has been religion, there has been political division – even as different types of religion have fostered different types of political division. Rousseau begins with paganism, opening his examination with a statement of fact: “Men had at first no other Kings than the Gods, and no other Government than Theocracy” (SC IV.8, 3:460). In this first stage, at the beginning, there was no functional distinction between the political sovereign and the religious sovereign; within the state, sovereign authority was organized in such a way that its division was inconceivable. But things were very different beyond its borders: From this alone – that God was placed at the head of every political society – it followed that there were as many Gods as peoples. Two peoples foreign to one another, and nearly always enemies, couldn’t long recognize the same master, as two armies engaged in battle can’t obey the same leader. Thus from national divisions resulted polytheism, and moreover theological intolerance and civil intolerance – which are naturally the same thing – as will be shown. (SC IV.8, 3:460)

Thus Rousseau’s double perspective on paganism. Internally, it unifies the state by unifying the sovereign; externally, it divides one state

324 ryan patrick hanley from another. Paganism thus at once fosters unity within the state and division between states. In the words of a recent commentator, paganism “helped to define national identities, but also enflamed national rivalries.”4 Rousseau then turns from polytheism to monotheism, shifting focus from paganism to Christianity. Christianity of course disrupted the political orders of pagan polytheism in introducing the concept of the universal brotherhood of man. In so doing, Christianity held forth the promise of a transnational unity that would transcend national divisions. But the political reality in fact introduced by Christianity is seen very differently by Rousseau. For even in holding forth the promise of international unity, Christianity in actual fact merely exacerbated divisions between states – even as it introduced division within the state. On the former front, Rousseau claims that Christianity served to transform political war between states into holy wars. Thus under paganism, he insists, somewhat strikingly and paradoxically, that even as all governments were theocracies, “there were no wars of Religion.” By this, he means that the pagan theocracies, even while recognizing their gods as sovereign within their state, understood their gods to have no authority over other states: “that is to say, the departments of Gods were fixed by the limits of Nations. The God of one people had no right over other peoples. The Gods of the pagans weren’t jealous Gods; they divided between them the empire of the world” (SC IV.8, 3:460–1). Polytheism thus necessarily divided one state from another, but these national divisions were not necessarily destructive. Yet all of this changed with the introduction of the jealous God. At this point, Rousseau calls attention to the unprecedented refusal of Israel to recognize the authority of any god but its own (SC IV.8, 3:461). But the full implications of monotheism for politics would not be realized until the coming of Christianity, to which Rousseau traces the birth of holy war. Thus, his unmasking of “the humble Christians”: their ostensibly “other-worldly kingdom” revealed itself in time as in fact “the most violent despotism” here below (SC IV.8, 3:462).

civil religion and political unity 325 In transforming war into holy war, monotheism exacerbated the divisions between peoples. But it also introduced division within peoples. Rousseau traces this to Jesus and the ambition Rousseau attributes to Him to “establish a Spiritual kingdom on earth.” And thus his key claim: This establishment of a spiritual kingdom, by “separating the theological system from the political system,” made it such that “the State ceased to be one,” and thus “caused the internal divisions that have never ceased to agitate the Christian peoples” (SC IV.8, 3:462). The main internal division Rousseau here has in mind is not religious sectarianism but a crisis of sovereignty in which the once-unified sovereign power was divided into two separate competing powers, political and ecclesiastical. This “double power,” he proceeds to explain, leads to “a perpetual conflict of jurisdiction” between prince and priest that makes it impossible for citizens to know which is to be obeyed (SC IV.8, 3:462). Elsewhere, Rousseau would explore the political history of this problem in his beloved Geneva, in the struggles of the bishops and the counts (HG 5:500). Yet here he sticks to the theoretical, notoriously crediting “the philosopher Hobbes,” alone among “Christian authors,” for having recognized most clearly the need for “political unity,” even as Rousseau means to distance himself from Hobbes’ scheme for creating unity by “reuniting the two heads of the eagle” (SC IV.8, 3:463). The important point though is that Rousseau sees Christianity as having introduced a fatal division of sovereign power. Yet it also introduces another type of internal division: In becoming “independent of the sovereign,” the holy religion takes up a new independent position “without necessary connection with the body of the State” (SC IV.8, 3:462). Rousseau’s claim then is that not only does Christianity divide the power of the sovereign into two, it also divides the state in creating an independent interest within the state, separate from that of the body of the state. This is clearly inconsistent for many reasons with the idea of the well-ordered state that Rousseau has been at pains to advance throughout the Social Contract. And hence the potential political tragedy introduced by Christianity: Where the

326 ryan patrick hanley pagans enjoyed national unity albeit with international divisions, Christianity exacerbates international division even as it introduces multiple forms of internal division. All of which necessarily leads one to wonder: What, if any, alternative to this might there be? Thus the chapter’s key question, made all the more pressing by Rousseau’s forthright insistence that “no state or government will ever be well constituted” without “full restoration of political unity” (SC IV.8, 3:463).

the religion of man Rousseau begins to explore possible answers to this question in the second section of the chapter. Thus, having concluded his historical review of paganism and monotheism, he now introduces a theoretical distinction that he claims will bring “a little more precision to the much-too-vague ideas of Religion related to my subject” (SC IV.8, 3:464). To this end, he now introduces what he calls two “species” (espèces) or “types” (sortes) of religions. The way he introduces this distinction is itself significant. “Religion, considered in its relations with society, which is either general or particular, is also divisible into two species: namely the Religion of man and that of the Citizen” (SC IV.8, 3:464). In his earlier draft of this passage in the Geneva Manuscript, as has been noted, Rousseau did not mention the general/particular distinction.5 But here this distinction takes center stage, as Rousseau will evaluate both the religion of man and the religion of the citizen in terms of their effects on both the particular society – that is, the individual political state – and the general society – that is, humanity in the aggregate. And on all of these fronts, the key evaluative criterion will be the capacity of the type of religion under study to at once promote unity and minimize division in both the particular and the general society. That this is in fact Rousseau’s criterion is made clear in his brief comment on a third type of religion, which he quickly insists is not worth discussing at any length. This he calls the “religion of the Priest,” which he explicitly associates with Catholicism, Shintoism,

civil religion and political unity 327 and Buddhism. The problem with the religion of the priest is that it merely reifies the division of sovereign power that Rousseau has already criticized; thus, his claim that the religion of the priest “gives men two sets of laws, two heads, two fatherlands,” and in so doing merely “subjects them to contradictory duties and prevents them from being at once devout men and Citizens.” All of this of course is already familiar to readers of Rousseau’s chapter. But what is new and significant (and indeed itself new to the published version of the text and absent from the Geneva Manuscript) in his rejection of this third species of religion is his concluding statement: “everything that breaks social unity is worthless; all institutions that put man in contradiction with himself are worthless” (SC IV.8, 3:464). The valueadded here to Rousseau’s now-familiar privileging of unity is that in addition to explicitly invoking “social unity” here, Rousseau also acknowledges the import of a type of unity that is internal to the human being and enables him to transcend the divisions or contradictions within himself. Thus, in treating this third type of religion, the religion of the priest, Rousseau comes as close as he will come in this chapter of the Social Contract to addressing the significance of the psychological unity that is so central to his treatment of religion in Emile and in the Moral Letters – the unity that brings together both of “the two substances” of which man is composed (LB 4:936). Rousseau’s decision not to pursue this side of unity further here is in keeping with his twice-repeated insistence that his focus here is religion “considered in relation to society” and his aim to “consider politically” these different sorts of religions (SC IV.8, 3:464). This leads him first to take up the religion of man. In introducing the religion of man, he defines it as a religion “without Temples, without altars, without rituals, limited to the purely internal worship of the Supreme God and to the eternal duties of morality” and identifies it with “the pure and simple Religion of the Gospel, true Theism, which could be called divine natural right” (SC IV.8, 3:464). This is a striking description for reasons that will be evident both to Rousseau scholars and to scholars

328 ryan patrick hanley of religion. The former will notice that this religion of man is at once “purely internal” and “pure and simple” and concerns a form of right that is “natural.” This then is a religion especially well-suited to Rousseau’s natural man. The latter will notice that Rousseau identifies the religion of man as “true theism.” The concept of “true religion” was central to several Enlightenment discussions of religion; in addition to famous discussions by Hume and Kant, many orthodox divines also used the term. But what renders a religion “true” in Rousseau’s sense? Any full treatment of this idea would need to go well beyond the Social Contract and examine the standards Rousseau elsewhere develops for religious truth – standards that shift from external metaphysical realities known by reason to inner moral truths that are known strictly by “interior assent” and “internal sentiment” (LF 4:1138). Again, in keeping with his resolutely political focus in this chapter, Rousseau does not explore these questions further here, leaving it to his reader to ask how the different religions here described comport with the religions of the Savoyard Vicar or Rousseau’s own religion. Here instead, Rousseau returns to the question to his main focus: whether and how the religion of man can foster unity and minimize division in both general and particular society. That this is in fact Rousseau’s intention here has sometimes been lost sight of because of the way in which he develops his argument. For in seeking to explain the concept of the religion of man to his readers, Rousseau equates the religion of man to Christianity, albeit with the caveat that when he speaks of Christianity he has in mind “not that of today, but that of the Gospel, which is totally different” (SC IV.8, 3:465). This association, however, complicates the discussions by introducing a polemical element that can obscure the theoretical significance of the serious problem that he means to address. Rousseau of course has already criticized Christianity in his opening historical section, as we have seen (pp. 324–25). And in what follows, he goes out of his way to land a few more blows, insisting among other points that “a society of true Christians would no longer be a society

civil religion and political unity 329 of men” (SC IV.8, 3:465), that “Christianity preaches only servitude and dependence” and has a spirit “too favorable to tyranny,” and that the idea that “Christian troops are excellent” cannot be countenanced (SC IV.8, 3:467). These critical comments famously attracted a great deal of attention from the ecclesiastical authorities of Rousseau’s day and were, more than any other single element of the Social Contract, what led these authorities to condemn the text. Yet the inflammatory rhetoric that aroused the ire of the ecclesiastical authorities must not distract philosophical readers from attending to the complex problem on which Rousseau is here focused, namely the implications of the religion of man for political unity. And on this front, the record of the religion of man is interestingly mixed. In keeping with his commitment to evaluate these types of religion in terms of their effects on both general and particular society, Rousseau begins his evaluation in terms of its influence on the unity of general society. Here, he finds much to admire and even marvel at. Thus he explains: “by this religion – holy, sublime, and true – men, children of the same God, recognized all others as brothers, and the society that unites them does not dissolve itself even at death” (SC IV.8, 3:465). In fostering universal brotherhood, the religion of man creates a bond among men that not only transcends national boundaries but death itself (cf. LB 4:960–61). And Rousseau similarly marvels at the way this bond manifests itself among the leaders of this religion, calling “a masterpiece of politics” the universal assembly of the priests, who understand themselves all to be “fellow citizens” even as they hail from opposite ends of the earth (SC IV.8, 3:463 n). The religion of man in its Gospel form thus lays the groundwork for the unity of the general society that Rousseau believes paganism was unable to achieve and which Christianity too often subverted in practice.6 Rousseau thus finds much to admire in the religion of man. Yet Rousseau has also already told us that “considered politically,” each of the three types of religion “has their faults.” This is certainly true of the religion of man. For where the religion of man does much to foster

330 ryan patrick hanley the unity of the general society, it also does much to subvert the unity of the particular society. It specifically does so by detaching individuals from a particular society: But this religion, having no particular relation with the political body, leaves to the laws just the force that they draw from themselves without adding any other to them, and in this way one of the great bonds of the particular society remains without effect. Even more: far from attaching the hearts of the Citizens to the State, it detaches them from it as from all other earthly things. I know nothing more contrary to the social spirit. (SC IV.8, 3:465)

Rousseau here insists that the religion of man is inimical to the unity of particular society in two ways: it fails to foster the laws that bring order to a particular society, and it weakens the sentiments of patriotism and love of fatherland in redirecting the citizens’ loves to the city of God. Rousseau himself invites the use of this Augustinian language in continually framing this phenomenon, in what follows, in terms of a love redirected from the earthly city to the divine city. Thus his insistence that Christianity is “an entirely spiritual religion,” that “the fatherland of the Christian is not of this world,” that Christians regard the success or failure of their worldly duties as matters “of profound indifference,” and that Christians fear to take pride in their state when it flourishes and are prone to bless God’s providential hand when it declines (SC IV.8, 3:466). In insisting so resolutely on the Christian’s indifference to the worldly city in his exclusive focus on the heavenly city, Rousseau takes Augustine’s argument perhaps further than even Augustine himself. But however this may be, the key point is clear: the religion of man fosters the unity of general society but subverts the unity of particular society.

the religion of the citizen What then of the second of the two types of religion introduced by Rousseau, the so-called religion of the citizen? In the same paragraph in which he defines the religion of man, he also provides a definition

civil religion and political unity 331 of the religion of the citizen. This religion, “inscribed in a single country, gives it its Gods, its own tutelary Protectors. It has its dogmas, its rituals, its exterior worship prescribed by the laws; beyond the single Nation that follows it, all else is infidel, foreign, barbarous; it extends the duties and rights of man only as far as its altars.” And it is under this broad heading of the religion of the citizen, Rousseau says, that we can place “all the religions of the first peoples,” and to which we properly give the name “divine civil or positive right” (SC IV.8, 3:464). Rousseau’s definition is striking for a number of reasons. First, Rousseau here very explicitly associates the religion of the citizen with early paganism in a manner analogous to his explicit association of the religion of man with Gospel Christianity, thereby tying the theoretical analysis of two the types of religion described in the second part of the chapter to his historical analysis of the two religious types examined in the first part of the chapter. Second, Rousseau here makes clear both what is admirable and what is problematic in the religion of the citizen seen politically. In short, where the religion of man fostered the unity of general society at the expense of the unity of particular society, the religion of the citizen fosters the unity of particular society at the expense of the unity of general society. The development of these claims becomes Rousseau’s focus in the paragraphs that follow. He begins with the benefits of the religion of the citizen, noting the ways in which it strengthens the bonds of the domestic state. It specifically does so by fostering attachment to the laws in a manner inverse to the way in which the religion of man attenuated citizens’ attachment to the laws. Thus, he forthrightly explains, this religion is good in that it reunites the divine worship and the love of the laws, and that in making the fatherland the object of the adoration of the Citizens, it teaches them that to serve the State is to serve the tutelary God. It is a species of Theocracy, in which one must not

332 ryan patrick hanley have any pontiff than the Prince, nor other priests than the magistrates. Thus to die for his country is to be martyred, to violate the laws is to be impious, and to submit one who is culpable to public execration is to sacrifice him to the wrath of the Gods: sacer estod. (SC IV.8, 3:464–5)

The religion of the citizen is a theocracy in the purest form. By placing God at the head of the laws, it gives the citizens a second reason to love the laws: not simply because the laws are their own, but because they are the work of their god. Herein we find one of the many ways in which Social Contract IV.8 dovetails with themes central to the treatment of the legislator earlier in the text.7 The religion of the citizen promotes civic unity then by binding the citizens to the laws. But it also promotes civic unity insofar as it unites prince and pontiff and obviates a distinction of sovereign powers. The religion of the citizen thus fosters the two types of civic unity that the religion of man subverts. Yet this religion of the citizen, like the religion of the man, also has its “faults.” In its case, all of its faults concern its effects on the general society. Rousseau’s initial definition of the religion of the citizen suggested this pernicious potential in noting that it encourages those inside the state to see men beyond the state as “infidel, foreign, barbarous.” In what follows, he spells out the implications of this propensity: Becoming exclusive and tyrannical, it renders a people bloodthirsty and intolerant, such that it breathes only death and destruction [meurtre et massacre], and believes it does a holy act in killing whoever does not recognize its Gods. This puts such a people in a natural state of war with all others, which is very injurious to its own security. (SC IV.8, 3:465)

Rousseau’s concluding turn to the self-interest of the state is noteworthy in itself. But the force of his critique centers on how love and worship of one’s own culminates in both hatred and violence toward

civil religion and political unity 333 others: the “intolerance” that culminates in holy war. And this is in addition to the fact that the religion of the citizen is “founded on error and on lies” that serve to “deceive men and render them credulous, superstitious, and submerges the true worship of the divinity in a vain ceremonial” (SC IV.8, 3:465). Far from an improvement on the religion of man, the religion of the citizen both exacerbates, in the most violent of ways, the division of general society at the same time that it introduces error and lies. Rousseau could hardly countenance this in the well-ordered state, of course, and indeed for the simple reason that he explicitly adduces in the Geneva Manuscript, though drops from the published version: “It is not permissible to tighten the knot of a particular society at the expense of the rest of the human race” (Geneva 3:337). And thus, in achieving one unity at the expense of the other, the religion of the citizen thus leaves us no closer to achieving the specific form of political unity Rousseau seeks.

the civil profession of faith In the third and final section of the chapter, Rousseau presents what he calls a “purely civil profession of faith” (SC IV.8, 3:468).8 And it is for this profession of faith that the chapter is best known and indeed most notorious. For a previous generation of scholars, this civil profession of faith represented perhaps the clearest evidence of the totalitarian bent of Rousseau’s political theory in the Social Contract.9 More recently, scholars have tended to focus more on the ways in which this civil profession of faith does or does not comport with Rousseau’s theory of freedom, with some calling attention to the disaccord between these mandated beliefs and the concept of freedom developed earlier in the Social Contract, even as others call attention to the ways in which Rousseau’s civil religion might be reconciled with a broadly Rawlsian vision of a pluralistic liberal society founded on a minimal overlapping consensus.10 Yet given Rousseau’s conspicuous and indeed resolute emphasis on questions of political unity to this point in the chapter, his presentation of the civil profession of faith asks to be understood in this context as well. And thus

334 ryan patrick hanley the question I think that Rousseau means to invite given the way in which he has organized his chapter, namely, how might the civil profession of faith serve as an answer to the specific problem of encouraging unity at once in the particular society and general society? Transitioning between the second and the third sections of the chapter, Rousseau first proclaims: “leaving aside all political considerations, let us go back to right, and settle the principles on this important point” (SC IV.8, 3:467). Here he makes clear that he means to address a matter of right rather than a matter of fact. That is, Rousseau here is primarily concerned to present the civil profession of faith as an answer to a problem of right that is conceivable on the level of theoretical principles rather than as a blueprint for a religion to be instantiated in actual polities. Even more specifically, Rousseau here aims to articulate a religion that is commensurate with “the right the social pact gives to the Sovereign over his subjects,” which, he further insists, “does not extend beyond the limits of public utility.” In hearkening back to his definition of right in the earlier books, Rousseau reminds us with specific reference to religious belief that the state’s interest is strictly limited to issues of general public concern, and hence that in matters that go beyond the public interest, “the citizens do not have to render any account to the Sovereign of their opinions,” and indeed “each moreover can have whatever opinion pleases him” (SC IV.8, 3:467–8). Whatever else it may be, the civil religion that Rousseau envisions is not a comprehensive doctrine. The key question now of course is how we ought to understand the public interest. Rousseau goes on to define this interest primarily in terms of duties. Thus, what matters to the state, he explains, is “that each citizen has a religion which makes him love his duties,” and specifically his duties “towards others” (SC IV.8, 3:468). It is for this reason that Rousseau envisions the articles of his civil profession of faith “not precisely as dogmas of Religion, but as sentiments of sociability without which it is impossible to be a good citizen or

civil religion and political unity 335 a faithful subject.” Later in the paragraph, he reiterates this point, insisting that the nonbeliever is not merely “unsociable” but in fact “incapable of sincerely loving the laws and justice” and sacrificing his life for his duty. Notoriously, Rousseau even goes so far as to claim that nonbelievers in the dogmas may be legitimately banished from the state and that nonbelievers who hypocritically profess belief in the dogmas are to be executed (SC IV.8, 3:468). Rousseau’s insistence on the use of coercive force to motivate the citizens’ adherence to the laws here seems obviously far removed from his earlier vision of autonomy and indeed closely parallels his notorious earlier insistence that men must be “forced to be free” (SC 3:363–64). It may be that in both instances Rousseau believes he can reconcile these tensions by privileging an ancient conception of autonomy as a capacity for selflegislation over a more modern conception of autonomy as radical independence. But however we might choose to try to understand these striking claims, still unanswered is our key question of how the civil religion might promote particular and general unity. For this, we have to look to Rousseau’s single brief paragraph in which he spells out “the dogmas of the civil Religion” – dogmas that he insists “must be simple, few in number, announced with precision and without either explications or commentaries” (SC IV.8, 3:468). As has been noted, Rousseau’s own articulation of these dogmas lives up to the articulation of them that he expects from the sovereign.11 Without providing anything like an explication or interpretation of these dogmas, Rousseau simply lists them and leaves it to readers to figure out for themselves why these particular dogmas are necessary. Here then are the dogmas he presents: The existence of the Divinity – powerful, intelligent, benevolent, farsighted and provident – the life to come, the happiness of the just, the punishment of the wicked, the sanctity of the social Contract and the Laws: thus the positive dogmas. As far as the negative dogmas go, I limit them to just one: namely intolerance. This goes with the religions we’ve excluded. (SC IV.8, 3:468–69)

336 ryan patrick hanley Absent any further explication or justification of these dogmas, the key question for readers becomes how to understand them as the solution to the problem of political unity. What solution to this problem do these dogmas then provide? The answer lies in Rousseau’s distinction between “positive” dogmas and “negative” dogmas – a distinction that tracks his distinction between particular society and general society.12 Put in a slightly different way, the positive dogmas are meant to foster the unity of the particular society, and indeed in two ways. First, in mandating belief in a God who will dispense divine justice in the life to come to both the good and the evil alike, the first three positive dogmas aim to provide a theological reinforcement of the basic institutions of civil order. And second, in positing “the sanctity of the social Contract and the Laws,” the fourth positive dogma aims to remedy the key failing of the religion of man: namely its failure to encourage the love of the laws necessary for domestic social cohesion. But Rousseau’s description of the single negative dogma also hearkens back to specific claims made earlier in the chapter. In his discussion of the religion of the citizen, Rousseau explicitly identified intolerance as its key failing leading to holy war, and in proscribing it, the civil religion clearly aims to preempt the violence and fanaticism fatal to the unity of the general society.13 All told then, the five dogmas of the civil religion seem meant to achieve nothing less – and indeed nothing more – than what is necessary to achieve the specific goal of political unity in the unique sense in which Rousseau conceives it.

conclusion Rousseau’s civil religion, I have argued, is presented as the solution to a very specific political problem. It is certainly not presented as either the religion that is most true in an ontological sense, or the religion that is best suited to us in a psychological sense; for these, we need to look to other professions of faith that Rousseau describes that go beyond this civil profession of faith – among them, the Savoyard Vicar’s profession of faith, the fictional Julie’s profession of faith,

civil religion and political unity 337 and Rousseau’s own “profession of faith” as set forth in the Moral Letters and developed in various of his autobiographical writings (ML 4:1085). To bring the standards of judgment needed to judge these professions of faith to a judgment of the civil religion would be to lose sight of the political problem that the civil profession of faith is meant to solve. That said, we cannot help but wonder whether the civil profession of faith is able to solve even this specific political problem. For after all, this political problem is a daunting one: namely, to provide a politically salutary system of beliefs for an individual who is meant to see themselves at once as a member of the particular society as well as a member of the general society, at once the citizen of a nation and the citizen of the world. To ask this is of course to ask a great deal of human beings, and perhaps much more than can be reasonably expected from most human beings.14 Yet to recognize this is not to invalidate the project of attempting to define a civil religion, but rather to bring into the relief the precise challenges that need to be overcome if men hope to create a political world that is at once founded on a commitment to justice within the state and to peace among states.

notes 1. Commentators on Social Contract IV.8 have not tended to emphasize the significance of Rousseau’s distinction between general and particular society. For a key exception to this general rule, see esp. Waksman 2010. Citations to Rousseau’s writings are to volume and page number of the Pléiade Œuvres complètes (Paris: Gallimard, 1959–95), with individual titles, cited by book and chapter number where relevant, taking the following abbreviations: E = Emile; Geneva = Geneva Manuscript; HG = History of the Government of Geneva; LB = Letter to Beaumont; LF = Letter to Franquières; LV = Letter to Voltaire; M = Moral Letters; SC = Social Contract. Translations are my own. 2. For these quotations, see Ronald Grimsley as quoted in Williams 2014, 203; Bertram 2004, 179; and Karant 2016, 1036.

338 ryan patrick hanley 3. See, for example, Williams 2014, 193; Bertram 2004, 179. 4. Karant 2016, 1030. 5. See Waksman 2010, 105–6. 6. Also relevant in this context is Rousseau’s treatment of “the general society of the human race” in Book 1, chapter 2 of the Geneva Manuscript (Geneva 3:281–9), in which we are invited to see the human race as “a moral person having with a sentiment of common existence which gives it individuality and renders it one, a universal movement which makes each part act for a general end relative to all” (Geneva 3:283–4). 7. As has often been noted, Rousseau wrote the draft of SC IV.8 on the back of his draft of SC II.7; see, for example, Waksman 2010, 91–2. 8. In fact, one of two “civil professions of faith” to be found in Rousseau’s corpus; see also his explication of the civil profession of faith at LV 4:1073. 9. For a helpful recent overview of this position as set forth by Cobban and Crocker among others, see Karant 2016, 1029. 10. For the former view see, for example, Beiner 1993, esp. 620, 632; and Griswold 2015, esp. 288, 293–4. For the latter view, see esp. Bertram 2004, 177–8. 11. Griswold 2015, 274–5. 12. The “civil profession of faith” that Rousseau earlier described in his Letter to Voltaire was likewise said to contain certain social maxims both “positively” (those that all were obliged to accept) and “negatively” (those that all were forbidden to hold) (see LV 4:1073). 13. On Rousseau’s efforts to channel religious fanaticism toward a healthier disposition more amenable to civic stability, see esp. Cortes 2020; and Karant 2016, 1047–8. 14. In this context see Beiner’s accusation that “Rousseau’s thought fluctuates between two opposed and contradictory standpoints, the standpoint of cosmopolitan brotherhood and the standpoint of national particularism” (1993, 636); and esp. Waksman 2010, 108.

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Index

administrative power. See executive power Alembert, Jean d’, 73, 80, 91, 279 amour-propre. See self-love in commercial societies, 105 dangers of, 15, 75, 105, 109 defined, 5, 75 morality and, 157 and political equality, 161, 172–6 transformed into love of the fatherland, 35, 74–6, 98 Anti-Federalists, 12 Arcadians, 117, 122, 123, 163 Arena, Valentina, 229 Arendt, Hannah, 305 aristocracy Athenian democracy as, 126 criticisms of, 215 Rousseau and, 229–31, 265 as type of government, 12, 13, 14, 20 types of, 215 virtue in, 16–17 Aristotle, 14, 104, 133, 160, 254 Politics, 101 Arrow, Kenneth, 213 assemblies deliberation in, 165 as expression of general will, 144, 173, 175, 209, 245 political education gained from, 165 in Rome, 213, 217, 226–8 as sign of healthy political community, 166 as site for voting/expression of sovereignty, 173, 208–12 atheism, 279, 286 Athens, 118–22, 126, 135, 260 Augustine, 330 City of God, 274 authoritarianism/totalitarianism, 5, 89, 94, 109–10. See also tyranny

356

Babbitt, Irving, 205 Bayle, Pierre, 278 Bellah, Robert, 289 Benhabib, Seyla, 269, 270 Berlin, Isaiah, 2, 5, 89–96, 98, 101–4, 106, 109, 110 Freedom and Its Betrayal, 90 Political Ideas in the Romantic Age, 90 The Roots of Romanticism, 90 Bertram, Christopher, 98 Bodin, Jean, 107 body politic death of, 207, 209, 211, 218 Hobbes’s conception of, 187 institutional design for, 207, 242 legislation as motive force for, 209 maintenance of, as task of government, 248 religious faith in relation to, 200 Rousseau’s conception of, 187 Brecht, Bertolt, 104 Brooke, Christopher, 94 Buddhism, 327 Caligula, 104 Calvin, Jean, 43, 44, 48–51, 53, 110 Institutes, 50 Carr, E. H., 179 Carter, Ian, 172, 177 Cassirer, Ernst, 90, 102 Castro, Fidel, 2 Catholic Church. See Roman Catholic Church censors and censorship, 96, 213–15, 228 Christianity American civil religion and, 289–91 anti-political nature of, 71 criticisms of, 4, 8, 71, 198, 199, 279, 282, 284, 304–8, 324–6, 328–9 divisive effects of, 305, 325–6 identified with religion of man, 329

index 357 international relations affected by, 280, 324–6 Machiavelli’s criticisms of, 281–2 sociopolitical role of, 198, 199, 276, 278, 279, 281, 282, 284, 304, 305, 306, 307, 308, 323, 324, 325, 329, 330 universal character of, 199, 305–7 Cicero, 61, 216 citizenship, 64–84 education for, 30, 66–72, 76–7, 165–8 foreign status vs., 190 in Geneva, 78–83 modern, 68, 69 moral psychology of, 5, 65, 70, 72, 75, 78 property in relation to, 6 suitability for, 162–5 civic harmony. See fraternity civil liberty, 94–5, 125, 140, 193 civil religion, 8, 273–91, 321–37 in America, 289–91 belief vs. practice of, 287 as check on selfishness, 96 concept of, 202, 276 dogmas/principles of, 283–7, 335–7 enforcement of belief in, 286, 335 freedom in relation to, 286–9, 333 general will in relation to, 274 Hobbes and, 275–7 legislator in relation to, 284 nationalism and, 199, 200, 202, 280–2, 289 Rousseau on history of, 277–80 Rousseau’s advocacy of, 199, 202, 247, 283–91, 334 unity as goal of, 322, 336–7 civil war, 121, 123, 219, 255, 264, 265, 268 clientelism, 246, 247 Cohen, Joshua, 66, 176, 269 Cohler, Anne M., 196 comitia centuriata, 226–9, 230 comitia tributa, 226, 228, 229 commercial societies civic responsibilities of, 80 dangers of, 105, 109 forms of government suitable for, 232, 248–9 republican, 14, 21, 78, 249 values of, 99, 132 Condet, François, 267

Condorcet, Marie-Jean-Antoine-Nicolas de Caritat, Marquis de, 245 Constant, Benjamin, 1 conventionalism general will and, 142–5 property and, 139–42 Cooper, Laurence D., 116 corruption amour-propre as source of, 15, 109 commerce as source of, 19, 105, 194 conditions mitigating risks of, 257 Corsica free of, 189 in democracies, 259–60 economic inequality as source of, 128–9 irreversibility of, 45 legislator’s task when faced with, 243 measures to counteract, 219, 228, 243 in modern society and politics, 37, 82, 98, 105 reason as source of, 33 in Rome, 213, 215, 228 secret ballot as weapon against, 215 theater as source of, 80 in Venice, 216 Corsica, 44, 52, 72–3, 75, 182, 183, 189, 249, 266 cosmopolitanism, 71, 90, 199, see also religion, of man; unity, international Cranston, Maurice, 159 Crest, Jacques-Bartélemy Micheli du, 49 Cromwell, Oliver, 174, 219, 254 Cusher, Brent, 116 Cyrenians, 117, 122, 123, 163 deliberative democracy, 269–70 Deluc, Jacques-François, 47 democracy conditions for, 263 critiques of, 21, 26, 32, 253, 254, 259–68 deliberative, 269–70 direct, 223, 241, 254, 260, 261, 268 equality as key feature of, 17–19, 26, 31 powers of government in, 26 Rousseau’s conception of, 4, 252, 253–4, 258–71, 288 sovereignty and government in, 26, 32, 259–61, 265 transformations and failures of, 260, 264 virtue in, 16–18, 262–4 democratic sovereignty, 4

358 index Dent, Nicholas, 44 Dérathé, Robert, 159, 224 Descartes, René, 310–17 despotism, 12–17, 20, 28, 44, 104, 162 dictatorship, in Rome, 228 Diderot, Denis, 73, 91, 96, 279 Diogenes Laertius, 122 direct democracy, 223, 241, 254, 260, 261, 268 Discourse on Political Economy (Rousseau) on education, 81, 166–8 on inequality, 124, 126–8 on legitimacy of government, 73–4 on love of fatherland, 74–7, 179 Social Contract’s relationship to, 5, 66, 72–8 on virtue, 72 Discourse on the Origin of Inequality (Rousseau), 3, 10 on democracy, 254 on equality in state of nature, 113 on freedom, 124 on Geneva vs. Rome, 243 on human nature, 33, 91 on inequalities of commercial societies, 105 inequality as central theme of, 123–4, 223 on legislator’s role, 46 on natural differences, 158 on property, 138 on reform and revolution, 44, 52 Rousseau’s claims about, 304 on self-love, 74 on the social contract, 41, 164 on sovereignty and government, 130, 231 domination, freedom from, 93, 96, 104–9, 236 Dupin, Madame, 10 economic equality, 102, 105, 109, 120, 124–7, 132, 133, 135, 136, 137, 157, 169 education of citizens, 30, 66–72, 76–7, 165–8 in Emile, 66–72, 99, 167 in Geneva, 80, 81 individual vs. public, 68 political equality and, 160, 165–8 religiously based, 17 republican role of, 17, 18, 31, 74–7 in virtue, 16–19, 35, 166 egalitarianism

Rousseau and, 37, 65, 66, 158, 176, 223, 225, 229, 231 social and political conditions for, 161, 163, 170, 172, 173, 175 Venice, voting and elections in, 7, 208, 216–17 Emile (Rousseau), 3, 5 on citizens’ love of democracy, 18 controversies over, 46, 273 criticisms of Grotius in, 104 on education, 66–72, 99, 167 on freedom, 96 the general and the particular in, 322 on inequality, 128, 129 and moral psychology, 65 on pity, 70–1, 77 and Plato’s Republic, 115, 116 on religion, 279, 280, 327 Rousseau’s purpose in writing, 304 Social Contract’s relationship to, 13, 22, 23, 66–72 on transformation of human nature by the legislator, 34 on women’s role in society, 164 Encyclopedia (d’Alembert and Diderot), 73, 80, 232 England and democracy, 253, 259 as model republic, 12, 20, 21, 25, 36 Rousseau’s critique of, 36 Enlightenment, 3, 232, 287, 296–8, 328 equality. See also egalitarianism; inequality; political equality as condition for freedom, 5, 106, 124, 131, 175 as condition for virtuous citizenship, 77 economic, 102, 105, 109, 120, 124–7, 132, 133, 135, 136, 137, 157, 169 Hobbes’s conception of, 113–14 influences on Rousseau’s thought about, 116, 122, 123 as key feature of democracy, 17–19, 26, 31 Locke’s conception of, 113–14 as object of law, 29, 114, 117–20, 125 Plato on, 120–3, 126, 127 Rousseau’s conception of, 113–14, 122–32 in state of nature, 113–14, 124 Erastus, Thomas, 275 Estlund, David, 269

index 359 executive power, 25, 26, 28, 101, 107, 108, 210, 231, 260, 261, 265, 268, 300 factions, 57, 93, 107, 121, 174, 209, 212, 213, 214, 216, 217, 218, 220, 221, 255, 264 fascism, 89 fatherland. See love of the fatherland Federalist, The, 37, 254 Federalists, 12 filibusters, 218 Filmer, Robert, 104 fitness principle, 242–4 France, 289. See also French Republic; French Revolution fraternity, 118, 121, 122, 130, 131 free riding, 102 freedom. See also civil liberty; negative liberty; political liberty; positive liberty civil religion in relation to, 286–9, 333 conditions for, 288, see also equality as condition for from domination, 93, 96, 104–9, 236 equality as condition for, 5, 106, 124, 131, 175 general will in relation to, 94, 103, 104, 142 Hobbes’s conception of, 113–14 influences on Rousseau’s thought about, 116 Locke’s conception of, 113–14 moral, 95–6 nations and, 184 as object of law, 29, 114 paradoxes of positive and negative, 93, 102 as principle of republics, 36 reason associated with, 88 in Rome, 236, 237 Rousseau’s conception of, 5, 88–110, 113–14 social contract and, 140, 170 in state of nature, 92–3, 94, 113–14 virtue as necessity for, 77 vulnerability of, 103 French Republic, 130, 136 French Revolution, 42, 110, 232, 268, 289 frugality, 18, 19, 26, 31, 258, 262, 266 general will as basis for formation of societies, 60 civil religion in relation to, 274 conditions for, 289

conformity of particular to, 30, 35, 93, 103, 104 freedom in relation to, 94, 103, 104, 142 Geneva, 59 inequality as threat to, 6 influence of concept of, 1 legitimacy of government dependent on, 73 limitations of, 100, 101, 103, 108 nondomination as goal of, 105 property in relation to, 152 psychology of, 5 reason in relation to, 97–101 republicanism linked to, 27 rights in relation to, 142–5 selfhood associated with, 91 and solidarity, 244–8 as source of law, 27, 28 territory for the exercise of, 145–51 voting in assemblies as expression of, 144, 173, 175, 209, 245 will of all in relation to, 270 Geneva, 46–62 and democracy, 267 education in, 80, 81 as model republic, 66, 68, 229, 231, 240, 248, 266, 267, 268, 315 Rousseau and, 2, 46, 54–8, 78–83, 274, 289, 315 Rousseau’s history of, 5, 46–8, 51–62 voting and elections in, 7 gerrymandering, 213–14 Gibbon, Edward, 273 Gordon, Bruce, 51 Gourevitch, Victor, 122 government. See also law; republics efficacy of, 257 fitness of, for particular contexts, 242–4 forms of, 12–15, 24, 25, 162, 256–9 Geneva as case study in/model for, 51–62, 66 legitimacy of, 11, 12, 22, 24, 27, 28, 40, 45, 59, 61, 62, 73, 84, 210, 257, 263 moderate, 20–1 peoples in relation to, 186 powers of, 25, 96, 101, 107 republics as only legitimate form of, 11, 24, 27, 86 sovereignty distinguished from, 4, 7, 24, 27, 59, 189, 210, 211, 230, 235, 253, 256–9, 261, 263

360 index government (cont.) tradition and change in, 61 weighing and balancing of interests and authority in, 95 Grotius, Hugo, 22, 104, 143, 183, 185 Habermas, Jürgen, 288 harmony. See fraternity Harrington, James, 232 Hazony, Yoram, 179 Hegel, G. W. F., 1, 88 Hendel, Charles, 96, 116 Herder, Johann Gottfried von, 205 Hitler, Adolf, 89, 94, 110 Hobbes, Thomas and equality, 113–14, 172 and freedom, 113–14 and legislation, 114 Leviathan, 276 and monarchy, 104, 107, 136 on the nature of government, 310 on forms of government, 14, 25, 258 on political membership, 187 and property, 139 and religion, 275–7, 307, 325 Rousseau’s criticisms of, 22, 104, 325 on the social contract, 40, 88, 180, 189 and state of nature, 10, 113–14, 150 on subjects of the state, 187 Holbach, Paul-Henri Thiry d’, 91, 279 Honig, Bonnie, 270 human nature asocial character of, 33, 34, 43 denaturing of, 34, 68, 75, 76, 97, 101, 315 fragility of transformations of, 96 legislator’s task of shaping, 34, 98, 101, 128, 196, 284 Montesquieu’s conception of, 33 Rousseau’s conception of, 32–4, 90, 96 Hume, David, 273, 328 Hyde, Edward (Earl of Clarendon), 276 inequality dangers of, 5, 19, 31, 74, 75, 82, 87, 106, 108, 117–32 legislators’ actions when faced with, 117–20 mitigation of economic, 106 political equality in conditions of, 158–76

property and, 157 intolerance, 8, 20, 201, 202, 280, 283, 286, 287, 323, 332, 333, 335, 336 Islam, 282, 289, 307 Isocrates, 159 Ivernois, François-Henri d’, 267 Jacobins, 225, 289 Jaucourt, Louis de, 232 Jefferson, Thomas, 290 Jesus, 325 judgment. See political judgment judicial power, 25 Kant, Immanuel, 1, 88, 172, 173, 270, 288, 328 Keller, Abraham C., 116 Kelly, Christopher, 162 Kingston, Rebecca, 116 Koestler, Arthur, 104 law. See also government; legislator civil, 29 conditions for introduction of, 117, 122, 162–3, 189, 194–5 equality as object of, 29, 114, 117–20, 125 freedom as object of, 29, 114 general will as source of, 27, 28 Hobbes’s conception of, 114 Locke’s conception of, 114 meaning and consequences of violations of, 192 Montesquieu’s conception of, 28–9 peace as object of, 114 political, 29, 64 republicanism based on rule of, 27 Rousseau’s conception, 114–15 Rousseau’s conception of, 27–9 lawgiver. See legislator laws of nature, 28 Léger, Antoine, 49 legislation. See law legislative power, 24–8, 96, 101, 107, 265 legislator, 4, 40–62, see also law absence of, in modern communities, 42 in ancient communities, 42, 51 appeals to religion or the supernatural in establishing the laws, 275, 280, 306, 309, 310 civil religion in relation to, 284

index 361 Descartes on, 313–14 examples of, 42, 44, 48–51, 117–20 Geneva as case study in, 48–57 Montesquieu’s conception of, 41–2 place of, in social contract theory, 40 Plato on the role of, 127–8 Plutarch’s accounts of, 116, 117–20 role of, 40–1, 61, 156, 163, 193–7, 210 Rousseau’s conception of, 34, 40–1, 43, 115, 301–3 shaping of human nature/character as chief task of, 34, 98, 101, 128, 196, 284 liberty. See civil liberty; freedom; negative liberty; positive liberty Lincoln, Abraham, 8, 290 Livy, Ab Urbe Condita, 274–5 Locke, John and equality, 113–14 influence on Rousseau, 204 and law, 100, 113–14, 191 on political membership, 191 and property, 139, 149 and religion, 286 on the social contract, 40, 180, 189, 190 society as conceived by, 99 and state of nature, 113–14, 149 lottery, for appointing officials, 216–17, 254 Louis IX, king of France, 41 love of the fatherland. See also nationalism defined, 17, 31, 197 inculcation of, 74, 98, 200 as key to political virtue, 16–17, 30 love of humanity vs., 72 moral psychology of, 66, 70–2 selfhood identified with, 77 transformation of self-love into, 35 Lycurgus, 18, 42, 43, 44, 51, 81, 117, 118, 130, 131, 132, 245, 284, 301, 309 Macedonia, 74 Machiavelli, Niccolò, 8, 10, 17, 30, 38, 182, 232, 280, 290, 306 Madison, James, 254 Maistre, Joseph de, 183 majority rule, 101, 175 Mao Zedong, 1 Marxism, 89 Masters, Roger D., 116 McCormick, 220

McCormick, John, 224, 225, 229–32, 237, 239, 252 Melon, Jean-François, 232 Miller, James, 252 mixed constitutions, 106, 107, 236, 241 monarchy, 12–17, 20, 27 monotheism, 284, 324, 325, 326 Montaigne, Michel de, 285 Monter, E. William, 51 Montesquieu, Charles Louis de Secondat, Baron de La Brède et de, 4, 8, 15, 162 Considerations on the Government of Poland, 232 on democracy, 254 on forms of government, 12–15, 162, 257 on freedom, 193 his conception of republics, 12–21, 30–7, 232 on human nature, 33 influence on Rousseau, 10–12, 37, 41, 229 on modern political conditions, 248 and political right, 22–3 and religion, 288 reputation of, 10 Rousseau’s criticisms of, 10–14, 22–4, 26–30, 36, 72, 262, 263 Spirit of the Laws, 10, 12, 13, 21, 22, 25, 28, 36, 41, 229, 253, 254, 257, 262, 263 moral freedom, 95–6 moral psychology of citizens, 5, 65, 70, 72, 75, 78 Emile and, 65 of love of fatherland, 66, 70–2 reason’s role in, 97 of social bonds formed through religion, 280 moral responsibility, 90, 94 morality. See also virtue inequality as threat to, 128 rights in relation to, 151–4 More, Thomas, Utopia, 235 Moses, 42, 43, 195, 277, 284 Moultou, Paul-Claude, 267 Muhammad (Prophet), 307 nations and nationalism. See also love of the fatherland; peoples civic nationalism, 180, 197–203 civil religion and, 199, 200, 202, 280–2, 289 cultural/ethnonationalism, 179, 197–203

362 index nations and nationalism (cont.) distinctiveness of, 193–7 and freedom, 184 organic vs. contractual bases of, 188–93 relations of, 183, 324 and religion, 277, 330–3 Rousseau and, 179–203 social contract and, 180, 184 and unity, 322 negative liberty, 5, 88, 89, 92, 102 Neuhouser, Frederick, 65, 67, 68–70, 124 Nietzsche, Friedrich, 171, 277, 281 Numa, 42, 43, 240, 245, 246, 275, 280, 284 Oakeshott, Michael, 274 occupancy, 148–50 Oprea, Alexandra, 116 paganism, 199, 277, 278, 281, 282, 284, 305, 323, 324, 326, 329, 331 Parry, Geraint, 66 Pateman, Carol, 269 patriarchy, 104 patriotism. See love of the fatherland; nationalism people, political capabilities and limitations of, 298–300 peoples. See also nations characteristics of, 186 formation of social contract by, 184–7 freedom of, 181–4 governments in relation to, 187 and nationhood, 180, 182 Rousseau’s conception of, 182, 184–7 perfectibility, 33, Pessoa, Fernando, 317 Peter the Great, 163, 189, 195 Pettit, Philip, 106–9, 252 philosophes, 91, 297 pity, 70–1, 77 Plato, 6, 115–17, 120–3, 126, 127, 128, 131, 132, 265, 309 Laws, 121, 123, 127, 130, 274 Republic, 115, 116, 120, 126, 235, 288, 295 Plutarch, 6, 30, 115–20, 122, 125, 126, 130, 131 plutocracy, 224, 225, 242–4 Poland, 44, 52, 72, 73, 75, 239, 249 political equality. See also equality amour-propre and, 161, 172–6

citizenship vs. subjecthood, 160–5 convention as basis for, 161, 168–72 education’s role in, 160, 165–8 natural differences in relation to, 6, 158–76 opacity mechanism for, 161, 172–6 political judgment, 100, 110, 159, 160, 166, 168, 171, 172–6 political liberty. See also freedom economic equality linked to, 120 in England, 36 in Geneva, 49, 53, 57, 58 judicial power necessary for, 25 moderate government as condition for, 21 Montesquieu’s conception of, 36 in Rome, 82 Rousseau’s conception of, 36 political membership/obligation, 191–3 political order, Rousseau’s account of, 309–11 political right, 22–3, 26 political virtue. See virtue Polybius, 264 polytheism, 277, 284, 323, 324 popular sovereignty capacities and limitations of, 299, 300 characteristics of populace suitable for, 44, 212, 227 elective aristocracy, 266 formation of, 187 legislator in relation to, 43 political equality and, 6 republicanism and, 7 in Rome, 226, 235 type of government appropriate to, 7 positive liberty, 88, 89, 91, 92, 94, 95 possession natural basis of, 147–9 property vs., 139, 153, 154 pride, 76 privacy, 103 property, 6 citizenship in relation to, 6 as conventional vs. natural, 138–42, 149–51, 153–4 general will in relation to, 152 labor in relation to, 139, 149 Locke’s conception of, 139, 149 as object of law, 114 occupancy and, 148–50 possession vs., 139, 153, 154

index 363 Rousseau’s conception of, 138–54 social contract as basis of, 139–40 territory in relation to, 145–51 Protestant Reformation, 275 psychology. See moral psychology Rahe, Paul, 37 rationality. See reason/rationality Rawls, John, 2, 65, 84, 156, 161, 172, 318, 333 realism, 110, 220, 237–9, 274, 287, 289 reason/rationality freedom associated with, 89 general will in relation to, 97, 98, 99, 100, 101 morality associated with, 90 Rousseau’s conception of, 95, 96, 97 redistricting. See gerrymandering Reformation, 49, 50, 53, 57, 58, 275 religion. See also Christianity; civil religion of the citizen, 8, 198, 330–3 Descartes and, 313, 314 in Geneva, 47, 58 of man, 8, 199, 280, 304, 326–30 nations and, 277, 330–3 non-worldly focus of, 17 pluralism of, 275, 287 politics in relation to, 308, 315, 322, 323, 324 of the priest, 327 in Rome, 275, 280 Rousseau on, 8, 46, 280, 297, 308, 328 social bonds formed through, 280 as tool in electoral interventions, 217 and unity, 322 representative government, 166, 253, 255, 268, 301 republics characteristics of ancient, 17, 26, 37, 68 characteristics of modern, 21 contrast of ancient and modern, 21, 42, 68, 79, 80, 81, 248 criticisms of, 15, 19, 21 decline of, 61, 96, 107, 208–20 education’s role in, 18, 30, 74, 75, 76, 77 England as model of, 12, 15, 20, 21, 25, 36 freedom as principle of, 36 general will linked to, 27 Geneva as model of, 66, 68, 229, 231, 240, 248–9, 265, 266, 267

Montesquieu’s conception of, 12–21, 30, 31, 32, 37, 232 as only legitimate form of government, 11, 24, 27, 86, 263 plausibility of large modern, 225, 232–49 populace suitable for, 44 Rome as model of, 7, 81, 223–50, 284 Rousseau’s conception of, 11, 16, 30–7, 108, 223, 235, 299, 300, 301, 302, 304 social contract as basis of, 23 socioeconomic conditions for, 18, 31 Sparta as model of, 18, 81, 284 virtue as principle of, 11, 15, 16, 17, 19, 20, 26, 30, 31, 32, 34, 35, 36, 86, 262 weighing and balancing of interests and authority in, 95, 107 revolutions, 42, 44, 45 rights civil religion and, 335 as conventional vs. natural, 142–5, 153 morality in relation to, 151, 152, 153, 154 in state of nature, 148 Riker, William, 213 Riley, Patrick, 100, 116 Roman Catholic Church, 198, 276 romanticism, 90 Rome criticisms of, 239, 240, 241, 244 decline of, 61, 221 education of citizens in, 68, 74 fitness principle applied to, 243, 244 a fortiori argument based on, 239–42, 248, 249 freedom in, 237 as model republic, 7, 82, 223–50, 284 religion in, 275, 280 voting and elections in, 7, 61, 208, 211–18, 224, 225–8, 245–6 Romulus, 214 Rosenblatt, Helena, 80 Rousseau, Jean-Jacques. See also Discourse on Political Economy; Discourse on the Origin of Inequality; Emile; Social Contract, The Confessions, 4, 30, 115, 207, 304, 317 Considerations on the Government of Poland, 42, 43, 66, 73, 107, 112, 131, 167, 179, 182, 195, 196, 197, 231, 238, 264, 300 The Constitution of Poland, 246

364 index Rousseau, Jean-Jacques (cont.) Constitutional Project for Corsica, 179, 197, 260 criticisms of, 1, 5, 89, 90, 91, 92, 93, 94, 95, 96, 106–9, 110, 176, 193, 197, 220, 252, 274 Dialogues, 4 Discourse on the Sciences and the Arts, 2, 10, 16, 44, 304 Geneva Manuscript, 86, 96, 97, 224, 327, 333 History of the Government of Geneva, 4, 46–8, 51–62 influences on, 115, 116, 117, 204 interpretations of the thought of, 23, 43, 65, 66, 69, 70, 72, 83, 84, 86, 269 Julie, 3, 96, 336 Letter to d’Alembert, 46, 80, 81, 130, 258 Letter to Voltaire, 287, 322 The Letters Written from the Mountain, 46, 47, 48, 49, 59, 60, 79, 82, 105, 130, 231, 234, 248 Moral Letters, 327, 337 personal life of, 2, 3, 4, 46 Plan for a Constitution for Corsica, 75, 124, 244 “Political Economy,” 17, 30, 31, 34 Political Institutions, 64, 207 Preface to “Narcissus,” 178 “The Profession of Faith of the Savoyard Vicar,” 46, 97, 279, 321, 328, 336 Reveries of the Solitary Walker, 4, 317 “The State of War,” 188 Russia, 163, 189 Savoy, 47, 58 Scaevola, 30 seisacthea (remittance of debts), 119, 135 self-determination individual, 78, 88, 95 political/national, 100, 182, 183, 184 selfhood authentic, 90, 91, 102–3 general will associated with, 91 and identification with one’s political community, 77 moral freedom and, 95 private freedoms associated with, 103 selfishness, 96, 101, 105 self-love, 5, 33–6, 70, 74, see also amourpropre

self-renunciation, 17, 19, 32, 35 Servius, 214, 245 Shapiro, Ian, 94 Shintoism, 326 Shklar, Judith, 10, 37, 116, 129, 159, 195–6 Sidney, Algernon, 232 Silverthorne, M. J., 116, 123 skepticism, Rousseau’s political, 101, 193, 253 Skinner, Quentin, 318 slavery, 104, 296 small-republic thesis, 225, 232, 233 Smith, Adam, 79 social contract equality achieved by, 124 and freedom, 140, 170 Hobbes’s conception of, 40, 88, 180, 189 legislator’s role concerning, 40 Locke’s conception of, 40, 180, 189, 190 and nationalism, 180, 184 organic vs. contractual nature of, 188–93 and property, 139–40 Rousseau’s conception of, 23, 88, 102, 144, 180, 184, 186 state of nature and, 40, 102, 124 Social Contract, The (Rousseau) ambiguities and contradictions of, 295, 303, 313 and citizenship, 5 Discourse on Political Economy’s relationship to, 5, 66, 72–8 Emile’s relationship to, 13, 22, 23, 66–72 figurative language of, 8, 309, 311, 314 incomplete character of, 3, 5, 8, 64, 207, 224, 304 influence of, 1, 3, 289 influences on, 10, 25, 115, 116, 117, 122 publication of, 3, 46 reception of, 46, 48, 274, 288, 329 and republicanism, 16 as a treaty, 293–304, 307, 311 socialization, of individuals into the general will, 93, 97, 99, 167 Solon, 117, 118, 119, 120, 125, 126, 131, 135, 245 sovereignty. See also popular sovereignty aristocratic, 231 creation of a people as basis of, 187

index 365 government distinguished from, 4, 7, 24, 27, 59, 189, 210, 211, 230, 235, 253, 256–9, 261, 263 Hobbes and, 14 Montesquieu and, 13–14 in Rome, 226 Rousseau and, 14, 187 voting in assemblies as expression of, 208–12 Sparta Descartes on, 313 education of citizens in, 68, 74 legislator’s actions in, 117 as model republic, 18, 81, 284 reform of citizenry in, 44 voting and elections in, 215 Spinoza, Baruch, 286 Spon, Jacob, Histoire de Genéve, 47 Staël, Madame de, 1 Stalin, Joseph, 94, 110 state of nature equality in, 113–14, 124 freedom in, 92–3, 94, 113–14 Hobbes’s conception of, 10, 113–14, 150 Locke’s conception of, 113–14, 149 Montesquieu’s conception of, 41 possessions in, 147–9 property rights in, 139–42 social contract and, 40, 102, 124 Steinmetz, Alicia, 94 Stilz, Anna, 65, 66, 69, 70, 78 Tamir, Yael, 179 territory and political membership, 191–3 and property, 145–51 theocracy, 200, 201, 277, 284, 287, 323, 324, 331, 332 theology. See civil religion; religion Tocqueville, Alexis de, 19, 193, 289 totalitarianism. See authoritarianism/ totalitarianism Trachtenberg, Zev, 116 Treaty of Westphalia, 275 tribunes, 228, 236, 241 Tronchin, Théodore, 46, 81 tyranny, 92, 103, 104, 109, 125, 126–7, 162, see also authoritarianism/ totalitarianism

United States, 289–91 unity civil religion and, 322, 336–7 international (general), 323–6, 329–32, 333–7 national (particular), 323–6, 330–7 religion of man and, 330–3 religion of the citizen and, 333 types of, 321 vanity, 76 Virgil, Aeneid, 237, 293, 304 Viroli, Maurizio, 66, 116 virtue. See also citizenship: moral psychology of; morality in aristocracies, 16–17 as conformity of the particular to the general will, 30 in democracies, 16–18, 262–4 in Discourse on Political Economy, 72 education in, 16–19, 35, 166 in Geneva, 78–83 moral psychology of, 75–6 political, vs. moral or Christian, 86 as principle of republics, 11, 14–20, 26, 30–7, 86, 262 Rousseau’s conception of, 30–1 Voltaire, 91, 232, 287, 297 voting and elections, 7, 207–21 assemblies and, 211 as essential to the persistence of a political community, 207–20 lottery as means of, 216–17 majority as criterion for, 101, 175 methods of intervention in, 218–20 publicity of, 215 redistricting and, 213, 214 in Rome, 7, 61, 208, 211–18, 224, 225–8, 245–6 timing of, 218 universal suffrage, 209–10 in Venice, 7, 208, 216–17 Waldron, Jeremy, 161, 172 Warburton, William, 278, 279 Washington, George, 290 welfare state, 88, 109 Williams, David Lay, 242 women, excluded from citizenship, 164

other volumes in the series of cambridge companions (continued from page ii)

DEWEY Edited by molly cochran DUNS SCOTUS Edited by thomas williams EARLY GREEK PHILOSOPHY Edited by a. a. long EARLY MODERN PHILOSOPHY Edited by donald rutherford EPICUREANISM Edited by james warren EXISTENTIALISM Edited by steven crowell ‘THE FEDERALIST’ Edited by jack n. rakove and colleen a. sheehan FEMINISM IN PHILOSOPHY Edited by miranda fricker and jennifer hornsby FICHTE Edited by david james and guenter zoeller FOUCAULT 2nd edition Edited by gary gutting FREGE Edited by tom ricketts and michael potter FREUD Edited by jerome neu GADAMER 2nd edition Edited by robert j. dostal GALEN Edited by r. j. hankinson GALILEO Edited by peter machamer GERMAN IDEALISM 2nd edition Edited by karl ameriks GREEK AND ROMAN PHILOSOPHY Edited by david sedley HABERMAS Edited by stephen k. white HAYEK Edited by edward feser HEGEL Edited by frederick c. beiser HEGEL AND NINETEENTH-CENTURY PHILOSOPHY Edited by frederick c. beiser HEIDEGGER 2nd Edition Edited by charles guignon HERMENEUTICS Edited by michael n. forster and kristin gjesdal HIPPOCRATES Edited by peter e. pormann HOBBES Edited by tom sorell HOBBES’S “LEVIATHAN” Edited by patricia springborg HUME 2nd Edition Edited by david fate norton and jacqueline taylor HUME’S “TREATISE” Edited by donald c. ainslie and annemarie butler HUSSERL Edited by barry smith and david woodruff smith WILLIAM JAMES Edited by ruth anna putnam KANT Edited by paul guyer KANT AND MODERN PHILOSOPHY Edited by paul guyer KANT’S “CRITIQUE OF PURE REASON” Edited by paul guyer

KEYNES Edited by roger e. backhouse and bradley w. bateman KIERKEGAARD Edited by alastair hannay and gordon daniel marino LEIBNIZ Edited by nicholas jolley LEVINAS Edited by simon critchley and robert bernasconi LIBERALISM Edited by steven wall LIFE AND DEATH Edited by steven luper LOCKE Edited by vere chappell LOCKE’S “ESSAY CONCERNING HUMAN UNDERSTANDING” Edited by lex newman LOGICAL EMPIRICISM Edited by alan richardson and thomas uebel MAIMONIDES Edited by kenneth seeskin MALEBRANCHE Edited by steven nadler MARX Edited by terrell carver MEDIEVAL ETHICS Edited by thomas williams MEDIEVAL JEWISH PHILOSOPHY

Edited by daniel h. frank and oliver

leaman MEDIEVAL LOGIC Edited by catarina dutilh novaes and stephen read MEDIEVAL PHILOSOPHY Edited by a. s. mcgrade MERLEAU-PONTY Edited by taylor carman and mark b. n. hansen MILL Edited by john skorupski MONTAIGNE Edited by ullrich langer MONTESQUIEU Edited by keegan callanan and sharon r. krause NATURAL LAW ETHICS Edited by tom angier NEWTON 2nd Edition Edited by rob iliffe and george e. smith NIETZSCHE Edited by bernd magnus and kathleen higgins THE NEW CAMBRIDGE COMPANION TO NIETSZCHE Edited by tom stern NOZICK’S “ANARCHY, STATE AND UTOPIA” Edited by ralf bader and john meadowcroft OAKESHOTT Edited by efraim podoksik OCKHAM Edited by paul vincent spade THE “ORIGIN OF SPECIES” Edited by michael ruse and robert j. richards PASCAL Edited by nicholas hammond PEIRCE Edited by cheryl misak PHILO Edited by adam kamesar PHILOSOPHICAL METHODOLOGY Edited by giuseppina d’oro and søren overgaard THE PHILOSOPHY OF BIOLOGY Edited by david l. hull and michael ruse PIAGET Edited by ulrich mu¨ller, jeremy i. m. carpendale and leslie smith PLATO 2nd edition Edited by david ebrey and richard kraut

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