The General Will Vs. The Will of All: Making Room for the People in a Transcendently Justified State

Dissertation, The University of Texas at Austin (1999)
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Abstract

In the founding documents of this country one finds appeals both to the sovereignty of the people and to abstract notions of rights, "justice," and "the common good". These two ideas are evoked almost as if there were no sense on behalf of the framers that these two ideas simultaneously held create a philosophic tension. Yet as history informs us, they are often contradictory in content. This theme was explored by Rousseau in his distinction of the general will versus the will of all. For Rousseau, the answer to political legitimacy was simple: it was found in the general will, the embodiment of transcendent political ideas. ;Rousseau's choice is one which mirrors that of the American founders. And in doing so they have taken a necessary step in law and state formation: the appeal to Platonism. But, ironically, this appeal does not mean that the popular will has no place in the law. In fact, a careful reading of Plato will render precisely the opposite conclusion: that a sound state built upon transcendent ideas must take into account a number of important empirical considerations, perhaps most significant among these being the will of the people. These ideas are not, however, the determinate Forms from the Phaedo, but rather the indeterminate concepts which guide the Athenian Stranger in his construction of the constitution of Magnesia in the Laws. Given this ontological characteristic of the Forms, the author of a state must have a broad understanding of empirical circumstances including human nature, while serving the demands of the universal ideas. In this light, one must realize that the law will be of no service to its highest aspirations unless it can be written in a manner that the people will act in accordance with it But the lawgiver also relies on this body for the articulation of the higher ideas. Thus the people are at once an obstacle to and a conduit of a higher law. To the extent, however, that democratic theory fails to confront its foundations in such a manner, it becomes mired in confusion

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