The Lawgiver and Democratic Institutions
It will be the demand of the lawgiver to overcome the mistrust, fear, and shame that produce a denial of politics and instead make politics a place where one’s material interests can be satisfied. Through treating the interests of all equally, generating understanding about the needs of others in the community, and effectively motivating each to consider the well-being of all, the lawgiver is to give force to the general will that lies dormant as only a normative hope expressed by the members of the social pact.
For Rousseau, the social pact cannot become the general will until it is “given motion and will by legislation.” “Individuals see the good they reject,” and morality does not inspire acts on its own accord. As a result, the lawgiver is charged with the task of designing the laws, or “conditions of civil association” which are particularly suited to the historical, physical, and material circumstance of a people. In the spirit of Montesquieu, the legislator is to craft a set of laws with regard to the form of government, residential patterns, land use, economic development, etc. that maximize the possibility of free and equal relations between citizens. Cumulatively, the entire pattern of social relations established by the law is to engender a self-sustaining moral tie:
[T]he end of every system of legislation is…freedom and equality…for power, it [should]
stop short of all violence and never be exercised except by virtue of rank and 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.”
Despite aiming for the freedom and equality of a people, interpreters have offered significant questions about the status of the lawgiver in what is, presumably, a deeply democratic text. Instead of attending to the specific tasks the lawgiver must perform to
generate a democratic will, most commentators have focused on issues surrounding how
the legislator transmits laws to the people – namely his use of a language imbued with
immediate feeling, his appeal to some citizens’ conception of the divine to validate his
institutions, or the force of his personality.
Rousseau’s preferred state is one without menacing outsiders or an already corrupt citizenry who require an external moral constraint to generate behaviour that sustains the community. According to Rousseau: “The discovery of the best rules of society would require a superior intelligence, who saw all of men’s passions yet experienced none of them; who had no relationship at all to out nature yet knew it thoroughly: whose happiness was independent of us, yet who was nevertheless willing to attend to ours: finally one who, preparing for himself a future glory with the passage of time, could work in one century and enjoy the reward in another. Gods would be needed to give men laws. But Rousseau does not himself depend upon gods. He goes on to give a great deal of advice to the “one who dares to undertake the founding of a people” and it is here that he mentions, as did Aristotle before him, that “it was the custom of most Greek towns to entrust the establishment of their laws to foreigners.” Rousseau adds to Aristotle’s list, noting that “the Republics of modern Italy in many cases followed this example: Geneva did the same [here Rousseau is thinking of Calvin as a founder] and profited by it.”
Rousseau’s mention of famous foreigners at this crucial point in his text suggests that he sees foreignness as a way to manage some of the challenges that face a founder: Who besides a god or a godlike man would be able to discover the best rules for a society, see all of men’s passions yet experience none of them; have no relationship at all to out nature yet know it thoroughly and, perhaps most important of all, have a happiness that is independent of us? These characteristics might be found only in a man of perfect virtue. But they – or something enough like them – might just as well attach themselves to a foreigner. Someone who comes from somewhere else is familiar with human nature, intrigue, and ambition but is not himself captivated by the particular intrigues at work here, in this new place, in which he has no investment or history. A foreign-founder’s foreignness secures for him the distance and impartiality needed to animate and guarantee a General will that can neither animate nor guarantee itself. Moreover, because he is not one of the people, his lawgiving does not disturb the equality of the people before the law. And finally his foreignness may well ad to his charms and enhance his leadership. No known genealogy demystifies his charismatic authority.
But this solution comes at a price, particularly for a democratic founding. The lawgiver leads the citizens to a legitimate set of arrangements, but he also position citizens in a relation of heteronomy that is deeply at odds with Rousseauvian legitimacy. As Alan Keenan puts it, “Rousseau’s recourse to the legislator” is “surprising, even farfetch,” because it appears “in a text devoted to laying the foundations of popular autonomy.”
Rousseau does offer us some insight into how to establish democratic will in such conditions through the demands he places upon the lawgiver. These are the tasks which
we too must accomplish if we are to hold the possibility of a free-standing democratic
polity that survives in the midst of a historical legacy of inequality. The lawgiver 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. To do so, institutions are designed that render all citizens roughly equal in their dependency on the community for their material interests. One of the primary needs of the community is to rid itself of asymmetrical power relations in the labour market. Fair division of labour and fair practices of employment are crucial, for the interest in recognition is largely met through the one’s labour practices. Secondly, equality of wealth is regularly adjusted to insure the ability for each to independent members acquire unfair bargaining advantages given their surplus of wealth. Such reserves of wealth generate series of personal dependencies that produce the ability for certain citizens to subject others to their arbitrary demands outside the sanction of the legitimate sovereign. Personal economic power can be an equally impinging form of social coercion as that too can misshapen the manner in which that persons feels free to express their understanding of the general will. Experience of economic powerlessness may even habituate the person into political subjection, denying their own absolute claim to participate in the general will. Lastly, interdependence demands that its system of associational life consist of fluid organizations without “external, authorized forms. The ability to join and move between a variety of organizations is crucial for the connection between interdependence and the next good to which Rousseau asked the lawgiver to attend, namely: “public enlightenment [that] results in the union of understanding and will in the social body.”
Cultivating relationships and interdependencies across various organizations helps
to establish a communicative network that transmits important experience and
information about citizens in various social positions to others throughout the state.
Ensuring that sub-polity organizational structures are permeable and not exclusivist will
both tie members in further interdependent ways and enhance the fairness and accuracy
of the general will. Not only will such organizational patterns broaden the communicative structure of the society, but each citizen will have a greater motivation to seek out information and experience from other citizens. “The commitments which bind us to the social body are obligatory only because they are mutual…their nature is such that in fulfilling them one cannot work for others without also working for oneself.” Having crafted the satisfaction of the community members’ interests as an interdependent enterprise, Rousseau claims that curiosity and reflection will follow where one’s needs are being satisfied. He writes, “the human understanding owes much to the passions, which, also owe much to it…we seek to know only because we desire to enjoy…the passions, in turn, owe their origin to our needs, and their progress to our knowledge.” This produces a desire to know about one’s partners in the shared enterprise, even if it is at first only out of regard for knowing how, or how well, one’s interests will be met. Over time, one can acquire a significant understanding of the positions of others across the society if institutions are arranged so as to generate a shared fate for new sequences of persons (e.g. shifting jurisdictional boundaries for local elections in order to break up consolidated interests.) Such diffusion of social knowledge allows the general will to properly function, conceiving of the people, of itself, as a whole. On with this background of experience and knowledge does the general will fail to marginalize particular groups or appear as a particular will to certain members.
Moreover, the expansion of understanding that can follow a new relation of interests can work to overcome the mistrust of “culpable others” experienced within relations of inequality. Given a weighty enough interest or a long enough time-frame to prevent defaulting, the experience can be a productive opportunity to loosen stereotypes gain some sense of perspective from the social position of the other. The experience can also help to lessen the shame of seeing one’s own culpability that tends to push citizen away from politics and exercise their private will. Communication and sharing a fate with
a heretofore disavowed other can be an ameliorative moment, bringing one back to the
political.
As an answer to both traumas of living through an inegalitarian system, the
arrangement of political, social, and economic institutions must consider the cultivation
of innovative flows of social information as a high priority.
A legitimate objection to taking this lesson from Rousseau would be to cite the
“silence” which fills some of his depictions of deliberative settings. Where is the concern
for expressing social information there? I think a closer look will bear out Rousseau’s
understanding. Here is the passage: If, when an adequately informed people deliberates, the Citizens had no communication among themselves, the general will would always result from the large number of small differences and the deliberation would always then be good. But when factions arise…the differences become less numerous and yield a less general result…there is no longer a general will and the opinion that prevails is nothing but a private opinion.
Rousseau seeks a communicative social order in which mutual understanding is built into the institutional life of the community, as opposed to existing in a particular, distinct setting where egalitarian norms, foreign to other spheres of life, have effect.
Of course, to dismiss deliberation as an independent forum for the airing of social
information is dangerous, the ties of interdependency may not truly be general and the
marginalized social member has no formal setting in which is right to be heard is secure.
But, Rousseau is valuable for reminding us that the work preparing us to be democratic
listeners is done, or not done, through all the institutions of our common life.
Conclusion
In detailing the actual demands of the Social Contract’s lawgiver, we arrive at a
description of Rousseau’s offerings to contemporary democratic theory. First,
placing these demands onto such an unlikely and mercurial figure tell us that these are
precisely the most difficult tasks for democracies to manage. Second, legislating
according to the general will demands an extensive set of supporting institutions that both
satisfy claims of recognition and lead citizens to recognize the inter-dependence of their
interests. The tasks of the lawgiver signal the enduring need to remedy existing claims of
mis-recognition, overcome the foreignness of those with whom one shares a community,
and secure the motivation for egalitarian deliberation and legislation.
Rousseau asks of the lawgiver, and democracy, to satisfy claims of recognition and equality through a truly inclusive institutional life in which each contributes to the conditions enabling freedom for all. Lastly, Rousseau’s pessimism about the prospects for such an enduring equilibrium, and the inevitable reach for appeals to exclusionary identity to maintain solidarity, imparts to us that no institutional remedy is ever complete. No citizen is ever finished in their education about the other, spectres of inequality linger which (re)inspire distrust, and mutual interdependence is a social state demanding constant attention and re-adjustment. The work of the lawgiver is never done, nor is the temptation to resort to forms of degraded, reactionary solidarity fully overcome.
BIBLIOGRAGHY
- Antony Flew, An introduction to Western philosophy, German Democratic Republic, Thames and Hudson, 1989.
- Bonnie Honig: Democracy and The Foreigner
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Site visited 10/04/05
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Site visited on 09/04/05.
- Ian, Ward, Introduction to Critical Legal Theory, First published in great Britain by Cavendish Publishing Limited, Second edition, 2004.
- Kirk Greer: Rousseau’s Lawgiver and Democratic possibility.
- University of East London, Law and Society Reading Materials page 16-20
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Site visited on 05/04/05
Jean Starobinski, Jean-Jacques Rousseau: Transparency and Obstruction, Arthur Goldhammer, trans.
(Chicago: University of Chicago Press, 1988), p. 30. Starobinski offers a radical distinction between
Rousseau’s normative and practical writings that I will implicitly refute in my account of the lawgiver’s
task below. The abuses depicted in the Second Discourse are implicated in Rousseau’s normative account
of democratic life. Steven Affeldt seems to present a similar understanding of the Social Contract to my own, though he emphasizes the abstract developmental demands of converting the private to the general will. See his “TheForce of Freedom,” Political Theory 27, 3 (June 1999), pp. 300, 327 n. 5.
Rousseau, Geneva Manuscript, trans. Judith Masters (New York: St. Martin’s Press, 1978), I.3 para. 2, p.
163.
Second Discourse, II, para. 36, p. 175.
e.g. Shklar (1985), p. 171. Ethan Putterman makes a similar move in his recent work. Putterman defends
the seriousness of Rousseau’s work as a constitutional consultant, but misses the regret expressed in
moving from the lawgiver’s practices early in the Social Contract to those of the anxious nation-builder of
Book IV and Poland. See his “Realism and Reform in Rousseau’s Constitutional Projects for Poland and
Corsica,” Political Studies 49, 3 (August 2001), pp. 481-94
11 In his excellent piece, Arash Abizadeh rightly emphasizes the xenophobia Rousseau deploys in order to
naturalize the nation as an object of passionate attachment and overcome the distinct inadequacies of
rhetoric and reason. I do claim, however, that Abizadeh is too quick to indict the legislator as necessarily
the progenitor of exclusionary violence. As I hope to show, Rousseau’s first attempted ground of coping
with force is through the reconciliation of recognitive and material interests toward the reproduction of
common institutions. See his “Banishing the Particular,” Political Theory 29, 4 (August 2001), pp. 556-
582.
12 Rousseau, The Government of Poland, Willmoore Kendall, trans. (Indianapolis: Hackett Press, 1985), p.11.
Social Contract II.6.1, p. 66.
Social Contract II.6.10, p. 68; Christopher Kelly, “‘To Persuade without Convincing’: The Language of Rousseau’s Legislator,” American Journal of Political Science 31, 2 (1987), p. 323.
Social Contract III.2.13, p. 89; II.10.1-2; II.11.4, p. 79.
Social Contract II.11.2, p. 78.
Kelly (1987), p. 323 and Grant (1997) serve as examples.