'Rousseau's Dilemma' in Avi Lifschitz, ed, Engaging with Rousseau: Reception and Interpretation from the Eighteenth Century to the Present, Cambridge University Press, 2016, pp 168-88 Rousseau's dilemma Philip Pettit Introduction In his Social Contract (1762), Jean-Jacques Rousseau developed a theory of freedom and government that built upon a long tradition of republican thinking, which by most accounts goes back to the time of the classical Roman republic.1 The heroes in this tradition are Polybius, Cicero and Livy in ancient Rome; Machiavelli in the Renaissance; English writers like James Harrington and Algernon Sydney in the seventeenth century; and radical Whigs in the eighteenth century like the authors of Cato's Letters, the English defenders of the American cause such as Richard Price and Joseph Priestley, and of course American writers such as the authors of the Federalist Papers, in particular James Madison.2 The tradition also had fellow-travellers who endorsed many of the guiding ideas in the tradition but are 1 Zera S. Fink, The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth Century England (Evanston, Ill.: Northwestern University Press, 1962); J. G. A. Pocock, The Machiavellian Moment: Florentine Political Theory and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975); Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998). 2 John Trenchard and Thomas Gordon, Cato's Letters (New York: Da Capo, 1971); James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (Harmondsworth: Penguin, 1987). 2 remembered for the novelty of their claims rather than their fidelity to a recognizable tradition; these, by my reckoning, include John Locke, the Baron de Montesquieu and Adam Smith. Rousseau belongs to this tradition insofar as he joins all the figures mentioned above in endorsing a conception of freedom which requires not being subjected to the will of another agent or agency, even one that displays restraint and indulgence. But he breaks with that tradition, as do some of the fellow-travellers mentioned, in arguing against the institutions associated with the mixed constitution: the sort of arrangement that was exemplified in the minds of Roman and neo-Roman thinkers by the constitution of Rome. That constitution looked for a number of mutually constraining, multiply representative centres of power rather than allowing 'the accumulation of all powers', as Madison put it, 'in the same hands, whether of one, a few, or many'.3 The message, in a medieval slogan, was: Ubi multa consilia, ibi salus; where there are many councils, there is safety – in particular, safety from subjection to an alien will.4 In the Social Contract, Rousseau rejects the mixed constitution in favour of a single assembly of all the citizens, breaking with the institutional recommendations, if not the guiding ideals, of the older tradition. He argues that the best arrangement or constitution for enabling people to enjoy freedom in the republican sense is one under which citizens unanimously agree to be bound, each in their own case, by the majoritarian determinations of a collective, sovereign assembly. While this conceptual innovation appealed greatly to 3 Madison et al., Federalist Papers, 303. 4 Daniel Philip Waley, The Italian City-Republics, 3rd ed. (London: Longman, 1988), 38–39. 3 those of a Romantic political bent – and Rousseau, of course, was one of the inspirers of the Romantic movement – it did more harm than good, by my lights, in the redirection it gave to republican thinking. I try to illustrate the difficulties that confront his approach in this chapter by showing that his new departure created a serious dilemma that he lacks the resources to escape. The chapter is divided into five sections. In the first two, I look at Rousseau's ambiguous connection with the older, Italian-Atlantic republicanism: his endorsement of the received view of freedom on the one side, and his rejection of the mixed constitution in favour of an absolute sovereign on the other. In the two following sections I look at the pair of challenges to freedom that his approach raises and, as he thinks, resolves: the first arises from the fact that, no matter how benign, every sovereign subjects citizens to an independent will; the second arises from the fact that the sovereign may not actually be very benign from the perspective of many citizens. Finally, the fifth section identifies the dilemma that his responses to those two challenges create for his approach.5 5 In this chapter I shall concentrate on the Social Contract. Despite that fairly narrow compass, however, I have been unable to develop the argument, as would have been ideal, while interacting with the voluminous literature on Rousseau's views. I am particularly aware of the different views argued, for example, in works such as Robert Wokler, Rousseau on Society, Politics, Music and Language (New York: Garland,1987); N. J. H. Dent, Rousseau (Oxford: Blackwell, 1988); Tracy Strong, Jean-Jacques Rousseau: The Politics of the Ordinary (Lanham: Rowman and Littlefield, 2002); and Joshua Cohen, Rousseau: A Free Community of Equals (Oxford, Oxford University Press, 2010). One mitigating consideration is that the secondary literature rarely focuses, as I do here, on the tension between Rousseau's endorsement of the republican way of conceiving of freedom on the one hand, and his endorsement of the absolutist rejection of the mixed constitution on the other. 4 1 Rousseau in support of freedom as nondomination Freedom as non-domination The conception of freedom that I associate with the long republican tradition casts it as requiring the absence of subjection to another's will, or at least the absence of subjection in the exercise of those choices that came to be viewed in the tradition as fundamental liberties.6 These are best seen as choices that can and ought to be protected for all citizens under the law and custom of the society.7 By contemporary standards – and so in any neorepublican doctrine – the citizenry should include all adult, able-minded, more or less permanent residents. But in the older tradition they were always restricted to males and often to those who were minimally propertied and culturally mainstream. In classical Roman usage, subjection to the will of another was described as dominatio: subjection to the will of a dominus or master.8 Hence it is useful to describe it as a conception under which freedom requires non-domination.9 The contemporary rival to this conception casts freedom as non-interference. That ideal dates from the work of 6 John Lilburne, The Legal Fundamental Liberties of the People of England, Asserted, Revived, and Vindicated (London, 1646). 7 Philip Pettit, On the People's Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2012); Just Freedom: A Moral Compass for a Complex World (New York: W. W. Norton and Co., 2014). 8 Frank Lovett, A General Theory of Domination and Justice (Oxford, Oxford University Press, 2010), Appendix. 9 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997); On the People's Terms; Just Freedom. 5 Jeremy Bentham in the 1770s, and became the hallmark of classical liberalism in the early nineteenth century. The difference between the two ideals is revealed in the fact that freedom as non-domination has two implications that freedom as non-interference does not support. The first implication of the ideal of freedom as non-domination is that you are not just unfree when someone actively interferes with you by imposing restrictions on what you can choose; you are also unfree when someone who has the power of interfering at will – someone who possesses the knowledge and resources required for interference – happens to stay their hand, thereby exercising restraint and displaying indulgence. In that case you are still subject to the will of the other, and still suffer domination, for you depend for being able to choose as you wish on the state of their will towards you: in particular, on their remaining indulgently disposed. This observation led traditional republicans to argue that you could not enjoy freedom under any master, however gentle or indeed gullible they may be; you could not enjoy freedom, for example, under a benevolent master. The second implication of the ideal of freedom as non-domination is that you are not unfree if you suffer the interference of another agent or agency but enjoy a suitable degree of control over the interference practiced. How much control must you have in order not to be made unfree by the interference imposed? That may be a cultural variable, as I have suggested elsewhere, so that you have enough control when by the toughest local standards you can look that agent or agency in the eye without reason for fear or deference; you can pass the so-called eyeball test.10 But however the idea is to be 10 For the record, I generally use the eyeball test as a rough criterion of whether people enjoy private non-domination, and I invoke a distinct, if related, test to serve as a 6 developed, it led most traditional republicans to think that the interference of statutory and indeed customary law – say, its interference in determining and defending people's basic liberties – is not dominating to the extent that citizens share more or less equally in controlling how that law is shaped and applied. Those who espouse the ideal of freedom as non-interference are not committed to support such implications; on the contrary, they routinely oppose them. Thus, as against the claim that domination without interference reduces freedom, Bentham's close associate William Paley wrote in 1785 that an 'absolute form of government' may be 'no less free than the purest democracy'.11 And as against the claim that interference without domination – say, the interference of good laws – does not take away freedom, Bentham himself insisted that 'all coercive laws ... are, as far as they go, abrogative of freedom'.12 Rousseau's endorsement of the republican idea Perhaps the deepest divide between the classical republican notion of freedom and the classical liberal alternative – and it remains the deepest divide between neo-republicanism and neo-liberalism – lies in their respective views of the relation between law and liberty. Classical liberals take freedom not to require law per se, identifying it with the natural criterion of whether they enjoy public non-domination; this consists in their being in a position to treat unwelcome public decisions as tough luck rather than the work of a malign will (see Pettit, On the People's Terms and Just Freedom). Here I stick, for simplicity, to the eyeball test. 11 William Paley, The Principles of Moral and Political Philosophy, ed. D. L. Le Mahieu (Indianapolis, IN: Liberty Fund, 2002), 314. 12 Jeremy Bentham, 'Anarchical Fallacies', in The Works of Jeremy Bentham, vol. 2, ed. J. Bowring (Edinburgh: W. Tait, 1843), 503. 7 liberty that someone, by received lore, might even enjoy out of society. Classical republicans, by contrast, identify it with a civil form of liberty that is available only in society. They also take it to be accessible to citizens only where, first, the laws and the mores of their society are under the equally shared control of all; second, such laws identify a suitable range of basic liberties for each; and, third, they give suitable protection to every citizen in the exercise of those liberties. Rousseau is clearly on the republican side in this debate, arguing that 'it is only the State's force that makes for its members' freedom' – that is, their freedom in relation to one another – and that in this exercise of force 'the civil laws are born'.13 The republican character of this ideal of freedom appears in the fact that what it requires, according to Rousseau, is 'that every Citizen be perfectly independent of all the others'. Rousseau is faithful to the older tradition in this insistence that freedom is associated with the nondomination or independence that law can provide for citizens, where law is taken in a broad sense that includes 'morals', 'customs' and 'opinion'. But there are various forms of dependence on others, ranging from depending on their goodwill for being able to exercise your basic liberties – i.e. dependence as domination – to depending on their collateral preferences for having access to certain options: say, depending on their air travel preferences for being able to fly away for the weekend.14 It may sometimes seem that whereas the older republicans looked for independence from an alien power and will – 'independency upon the will of another', as 13 Rousseau, SC, II.12.3. 14 Pettit, Just Freedom, Ch.1. 8 Algernon Sidney had put it15 – Rousseau rails against all forms of dependence. It may seem, in other words, that he assumes more the form of a normative solipsist – better to live a life of self-sufficiency, even perhaps in isolation from others – than that of a normative republican. This appearance is quite misleading, however. It is clear in The Social Contract that what he objects to is 'personal dependence',16 which he also describes as 'servitude and dependence',17 where I take those words to express the same idea. This is the condition against which he had railed in the Second Discourse of 1755 when he says: 'in the relations between man and man the worse that can happen to one is to find himself at the other's discretion'.18 It is not the sort of dependence that living with others inescapably entails, only dependence involving domination: subjection to another's will. Rousseau emphasizes in a letter of 1757 that he has nothing against this inescapable form of dependence, acknowledging that 'everything is to one degree or another subject to this universal dependency'.19 These remarks should be enough to demonstrate that the freedom that Rousseau values is precisely the sort of freedom hailed in the republican tradition. Thus it is not the 15 Algernon Sidney, Discourses Concerning Government, ed. Thomas G. West (Indianapolis, IN: Liberty Classics, 1990), 17. 16 SC, I.7.8. 17 Ibid., IV.8.28. 18 Rousseau, DI, 176; OC III, 181. 19 Jean Starobinski (ed.), 'A Letter from Jean-Jacques Rousseau (1757)', New York Review of Books, 15 May 2003, 31–32. 9 freedom that Benjamin Constant had described in 1818 as the freedom of the ancients.20 This is a form of freedom that consists in being an enfranchised member of a voting community: a community that determines its laws on the basis of voting in a citizen assembly. That notion of freedom may have been endorsed by vulgar Rousseauvians but it was never supported by the master himself.21 Not only does Rousseau value freedom in the sense of non-domination; he also treats it, like his republican predecessors, as the greatest good that a society can bestow. Distinguishing it from the 'natural liberty' that a person might enjoy out of society, as the tradition had routinely done, he casts it as 'civil freedom' and presents it as something that only a suitably organized society can make available.22 Property or ownership in anything presupposes a law that can protect you against those who would take it away, thereby vindicating your claim; it does not consist in having the natural power to maintain possession. And similarly, he suggests, civil freedom presupposes a law that can guarantee your claim to take this or that course of action – presumably, in exercise of a basic liberty – by protecting you against opponents. A person's natural freedom 'has no other bounds than the individual's forces', as brute possession is also 'merely the effect of force'. While people 20 Benjamin Constant, 'The Liberty of the Ancients Compared with that of the Moderns', in Political Writings, ed. Biancamaria Fontana (Cambridge: Cambridge University Press, 1988), 308–28. 21 Jean-Fabien Spitz, La Liberté Politique (Paris: Presses Universitaires de France, 1995). This is to imply that while Rousseau stressed the value of self-legislation in the assembly, he took this to be of heuristic or epistemic rather than constitutive significance; it was a sign – although, as we shall see, a fallible sign – of the presence of the general will. More on this later. 22 SC, I.8.2 10 may be able to enjoy natural liberty and brute possession outside society, then, they cannot enjoy the counterparts. Both civil freedom on the one side, and ownership or property on the other, presuppose a suitable rule of law. They are made possible under and by laws that transcend the rule of force, giving a person what Rousseau calls 'positive title' .23 These remarks should not suggest that Rousseau thinks of freedom and property as distinct ideals. He thinks of the institution of property as an arrangement under which, if it assumes a suitable form, people are given a certain civil freedom: a title to acquire and trade things under the conventions it establishes. The arrangement will assume a suitable form, however, only to the extent that 'all have something and none has too much of anything'.24 No citizen should 'be so very rich that he can buy another, and none so poor that he is compelled to sell himself'.25 For Rousseau, then, civil freedom is the most general, appealing status that society is capable of conferring on its citizens. And so it is no surprise that, like his republican forebears, he represents it as the ideal that the laws of a society should aim at fostering. 'The greatest good of all', he says, and 'the end of every system of legislation', involves 'two principal objects, freedom and equality'.26 And in effect it consists in freedom alone, since he immediately adds that equality is attractive only 'because freedom cannot subsist without it'. 23 Ibid., I.8.2. For the tension in Rousseau's works between civic equality and the defence of property, see Jean-Fabien Spitz's essay in the present book. 24 Ibid., I.9.8, footnote. 25 Ibid., II.11.2. 26 Ibid., II.11.1. 11 2 Rousseau in support of absolute sovereignty27 The absolutist idea of sovereignty The two most important figures in the development of the idea that each state has to have a unitary, absolute and indivisible sovereign – an idea that was designed to undermine the republican notion of a mixed constitution – were Jean Bodin and Thomas Hobbes. Bodin wrote his major anti-republican work, The Six Books of the Republic, just a few years after the St Bartholomew's Day massacre of Huguenots in 1572, at a time of great religious and civil strife in France. Hobbes wrote his equally anti-republican tracts in or around the 1640s – The Elements of Law, De Cive and Leviathan – in Parisian exile from an England beset by civil war. Prompted by the fear of civil strife, both argued vehemently that whatever individual or body holds power – or at least the supreme power, as they saw it, of legislation – it has to operate as a unitary agent or agency, it cannot embody separate, mutually checking elements and it has to enjoy unchallenged authority. Each believed that in the absence of such a unitary, indivisible and absolute sovereign, there is bound to be continuing dissension and, as Hobbes famously stated it, a relapse into a war of all against all: a state of nature in which no one owes any obligations to others and life is 'solitary, poor, nasty brutish and short'.28 27 This section draws on material in Philip Pettit, 'Two Republican Traditions' in Republican Democracy: Liberty, Law and Politics, ed. Andreas Niederbeger and Philipp Schink (Edinburgh: Edinburgh University Press, 2013), 169–204. 28 Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), 13.9. 12 While Hobbes built on Bodin's work, the case he made for a unitary, indivisible and absolute sovereign was quite original.29 He argued that we should think of the commonwealth, whatever form it assumes – monarchical, aristocratic or democratic – as a corporate body on the model of 'a company of merchants'.30 In a monarchy – the constitutional form that he, like Bodin, prefers – the multitude of the people are incorporated into a body for which, by unanimous consent, the king or queen speaks. In an aristocracy or democracy, they are incorporated into a body for which, again by unanimous consent, an elite or popular assembly speaks, determining what it says on the basis of majority voting. Prior to incorporation, according to Hobbes, the people in a country constitute just a multitude of dissonant voices: an 'aggregate' or 'heap' of agents, 'a disorganized crowd', a 'throng'.31 After incorporation, the people comes into existence as a proper agent. It forms a will and assumes the status of an agent or person via the single authorized voice of its spokesperson. This may be the individual voice of a monarch or the majoritarian voice of an assembly.32 29 Philip Pettit, Made with Words: Hobbes on Language, Mind and Politics (Princeton, NJ: Princeton University Press, 2008), Ch. 5. 30 Hobbes, On the Citizen, ed. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998), 5.10. 31 Hobbes, Human Nature and De Corpore Politico: The Elements of Law, Natural and Politic, ed. J. C. A. Gaskin (Oxford: Oxford University Press, 1994), 21.11; On the Citizen, 7.11; Leviathan, 6.37. 32 Hobbes, Leviathan, 16. As a matter of record, the members of an assembly could not operate satisfactorily under straight majoritarian decision-making; such an arrangement would be hostage to inconsistency in group judgements and policies; see Pettit, Made with Words, ch. 5, and appendix; Christian List and Philip Pettit, Group Agency: The Possibility, Design and Status of Corporate Agents (Oxford: Oxford University Press, 13 This spokesperson operates as a unitary agency and gives the unity of a corporate entity to the multitude personated or represented: 'it is the unity of the representer, not the unity of the represented, that maketh the person one ... and unity, cannot otherwise be understood in multitude'.33 And since the people or commonwealth assumes that corporate existence only in virtue of the sovereign, it cannot continue to exist in the absence of a sovereign. It is 'an error', Hobbes says, to think 'that the people is a distinct body from him or them that have the sovereignty over them'.34 Or, as he puts the point elsewhere, 'the sovereign, is the public soul, giving life and motion to the commonwealth, which expiring, the members are governed by it no more, than the carcass of a man, by his departed (though immortal) soul'.35 But not only does each state or commonwealth have to have a unitary sovereign in this sense; according to Hobbes, this sovereign also has to be indivisible. What this means, in effect, is that it cannot exist or operate under a mixed constitution. Hobbes thinks that the mixed constitution – 'mixarchy', as he mischievously calls it – cannot establish the unitary sovereign that every commonwealth requires.36 It would support 'not one independent commonwealth, but three independent factions; nor one representative (2011). I ignore this problem, which arises for Rousseau as well as Hobbes, in the present context. 33 Hobbes, Leviathan, 16.13. 34 Hobbes, Human Nature and De Corpore Politico, 27.9. 35 Hobbes, Leviathan, 29.23. 36 Hobbes, Behemoth; Or, The Long Parliament, ed. Ferdinand Tönnies (Chicago: University of Chicago Press, 1990), 16. 14 person, but three'.37 His argument is straightforward: 'if the king bear the person of the people, and the general assembly bear also the person of the people, and another assembly bear the person of a part of the people, they are not one person, nor one sovereign, but three persons, and three sovereigns.' In this Hobbesian view, which closely resembles the earlier image developed by Bodin, the unitary, indivisible sovereign also has to have a third property: it must enjoy absolute power. This means that the sovereign must be unconstrained by the law on the one side, and must be incontestable by subjects on the other. The argument for why the sovereign is above the law reflects a line of reasoning in Bodin and is remarkably simple.38 Law is command and the sovereign is the commander who gives the law. But no one can give a command to himself: 'he that can bind, can release'.39 And so the sovereign cannot be subject to the laws he establishes: 'having power to make, and repeal laws, he may when he pleaseth, free himself'. Thus, by this account, it would make no sense to posit a sovereign at the origin of law and hold at the same time that that sovereign ought to be constrained by the law itself. The argument for why the sovereign is beyond challenge from citizens is a little more complex but still readily intelligible. Assume that the people, as distinct from the multitude, exists only in virtue of being incorporated by covenant under a single sovereign. If individuals were to contest what the sovereign does, that would be to allege a breach of 37 Hobbes, Leviathan, 29.16; see too On the Citizen, 7.4, and Human Nature and De Corpore Politico, 20.15. 38 Jean Bodin, Six Books of the Commonwealth, ed, M. J. Tooley (Oxford: Blackwell, 1967), I, 8, 395. 39 Hobbes, Leviathan, 26.6. 15 covenant on the sovereign's part. But this would amount to rejecting the role of the sovereign as the unique spokesperson on what should hold under the covenant; there is no super-sovereign, after all, to resolve such a contest. And, in rejecting the sovereign's role in this regard, they would be acting as if they were still in a state of nature: a war of all against all. Hobbes puts forward this argument in commenting on the essentially restricted place of subjects in a commonwealth: if any one or more of them pretend a breach of the covenant made by the sovereign at his institution, and others or one other of his subjects, or himself alone, pretend there was no such breach, there is in this case no judge to decide the controversy: it returns therefore to the sword again.40 But what of the case where the whole people, and not just one individual or subgroup, contests what the sovereign does? Would this be possible within the Hobbesian vision? No, it would not. Individuals contract with one another to have a sovereign and it is only in virtue of establishing such a spokesperson that they can act as a single body. Thus they cannot act as a single body in contesting the very spokesperson on whom they depend for so acting. They can only act as the members of a mob or multitude if they were still in a state of nature.41 Rousseau's endorsement of the absolutist idea Rousseau follows Bodin and Hobbes in taking the legislative authority, rather than executive or judicial officers, to be the sovereign, on the grounds that the work of any such 40 Ibid., 18. 41 Ibid., 18.14. 16 agency is the 'application of the law', not the making of law.42 Moreover, also following their lead, he allows that there is a difference between sovereignty and administration and that the sovereign need not lead the administration or government.43 Like Bodin and Hobbes, he describes a regime in which the assembly of the people serves as both legislative and administrative authority as a democracy and, as we shall see, rejects democracy in that sense. What he espouses is a 'mixed government',44 as he calls it, in which the sovereign is the people and the administration is delegated to appointed magistrates. This ideal of a mixed government is consistent with the existence of an unmixed legislative sovereign, however, and should not be confused with the ideal of a mixed constitution. Rejecting the ideal of a mixed constitution, Rousseau joins Bodin and Hobbes in arguing for a unitary, indivisible and absolute sovereign. For him, as for Hobbes, the existence of a state, as distinct from enslavement to a despot,45 presupposes association or incorporation. This incorporation has to come about via 'unanimous consent'46 to a primitive contract that gives the assembly of the people 'its unity, its common self, its life and its will'.47 The sovereign in this vision is that assembly itself, and its unitary character appears in the fact that it always operates through the voice of the majority. 'Except for this 42 SC, III.2.3. 43 Ibid., III.7.4. 44 Ibid., III.7.3. 45 Ibid., I.5.1. 46 Ibid., IV.2.5. 47 Ibid., I.6.10. 17 primitive contract, the vote of the majority always obligates all the rest; this is a consequence of the contract itself'.48 Rousseau is particularly insistent on the need for this sovereign assembly of the people to be indivisible, railing as strongly as the earlier absolutists against those who would defend the mixed constitution. He thinks that the very idea of a state presupposes a single sovereign – a single source law – and that 'whenever one believes one sees sovereignty divided, one is mistaken'.49 And he deploys all his rhetorical skills against theorists of the mixed constitution, prominent though they were in the republican tradition: they turn the Sovereign into a being that is fantastical and formed of disparate pieces; it is as if they were putting together man out of several bodies one of which had eyes, another arms, another feet, and nothing else. Japanese conjurors are said to carve up a child before the spectators' eyes, then, throwing all of its members into the air one after the other, they make the child fall back down alive all reassembled. That is more or less what our politicians' tricks are like; having dismembered the social body by a sleightof-hand worthy of the fairground, they put the pieces back together no one knows how.50 Not only does Rousseau follow in the steps of Bodin and Hobbes in developing the case for a unitary, indivisible sovereign, he also follows their path when he goes on to argue 48 Ibid., IV.2.7. 49 Ibid., II.2.4. 50 Rousseau, SC, 58; OC III, 369–70. 18 that the unitary, indivisible sovereign assembly that he envisages has to enjoy absolute power: it has to be unconstrained by law, and incontestable by individual citizens. Upholding the claim that the sovereign should be unconstrained by law, he argues that 'it is contrary to the nature of the body politic for the Sovereign to impose on itself a law which it cannot break';51 here he is presumably assuming that no body can give a command to itself. Thus he maintains that the assembly is 'above judge and law' ,52 and that there is no 'kind of fundamental law that is obligatory for the body of the people'.53 Upholding the claim that the sovereign should be beyond challenge from individual members, Rousseau invokes the explicitly Hobbesian thought that there is no supersovereign, no higher judge, that might make it possible for individuals to challenge their sovereign within the terms of the social contract. He says that 'if individuals were left some rights' – presumably, rights of contestation – 'there would be no common superior who might adjudicate between them and the public';54 'where interested private individuals are one of the parties, and the public the other', he maintains, 'I do not see what law should be followed or what judge should pronounce judgment'.55 Thus, 'each, being judge in his own case on some issue, would soon claim to be so on all', and 'the state of nature would subsist' or obtain.56 The lesson is that since there is no further judge of a dispute under the social contract, it can make sense for an individual or individuals to contest the sovereign's 51 Ibid., I.7.2. 52 Ibid., II.5.7. 53 Ibid., I.7.2. 54 Ibid., I.6.7. 55 Ibid., II.4.6. 56 Ibid., I.6.7. 19 claims. However, if they were to insist on contestation, they would be retreating to a state of nature, denying the sovereign its proper role. We saw earlier that Rousseau remains faithful to the republican tradition in taking freedom as non-domination to be the supreme ideal in politics: the end, as he puts it, of every system of legislation. But we now see that this fidelity to republican ideals went hand in hand with a rejection of the institutions of the mixed constitution that, in some version, almost all republicans espoused. This gives its distinctive character to Rousseau's republicanism but it also creates a difficulty for republican doctrine. In the remaining sections of this chapter I distinguish between two distinct problems of freedom that Rousseau's scheme requires him to address, and then I argue that they give rise to a problematic dilemma that he lacks the resources to resolve. 3 The first problem for freedom and Rousseau's response In Rousseau's vision of social and political order, each of us is subject to the mastery of an unconstrained, incontestable sovereign. And so the first issue that he confronts, as he looks at this order from the point of view of freedom, is how it can be consistent with thinking that people remain free. 'Man is born fee, and everywhere he is in chains', he remarks in the beginning of the first chapter of the Social Contract. And then he poses two questions, one historical and unanswerable, the other normative and, as he thinks, quite tractable. 'How 20 did this change come about? I do not know. What can make it legitimate? I believe I can solve this question'.57 The task Rousseau confronts in addressing the normative question of legitimacy is to explain how social order could appear without compromising the freedom of those who live under that order. He has to find 'a form of association' that would make it possible that 'each, united with all, nevertheless obey only himself and remain as free as before'.58 'This is the fundamental problem', he says, and he immediately adds that 'the social contract provides the solution'. His image of the social contract is developed on lines that Hobbes had already explored. Prior to publishing Leviathan in 1651, Hobbes generally suggested that when a state forms by explicit agreement or institution, a democracy will form in the first stage, and then in the second one of two things will happen: either democracy will be upheld, with the assembled people retaining the role of sovereign; or that democratic sovereign will cede its sovereignty, giving itself over to the rule of an aristocratic body or a monarch.59 Rousseau probably did not know Leviathan, since it had not been translated in his time, and his vision of the social contract starts from the earlier suggestion. He assumes, as the early Hobbes had assumed, that all must come together in what Hobbes would have called a democratic assembly in order to form a society. And what they do in coming together is to consent unanimously to follow the outcome of majoritarian voting in making their decisions – or at least, as Rousseau maintains, their decisions about 57 Ibid., I.1.1. 58 Ibid., I.6.5. 59 Hobbes, Human Nature and De Corpore Politico, Ch. 21; On the Citizen, Ch. 7. 21 questions of general law.60 In what way, though, does this solve the first problem of freedom? Why is it that people would not suffer a loss of freedom if society were to be formed in this manner? The main element in Rousseau's answer is that the social contract he envisages – 'the act by which a people is a people'61 – 'presupposes unanimity' and is 'the most voluntary act in the world'.62 Elaborating on this last point, he says: 'every man being born free and master of himself, no one may on any pretext whatsoever subject him without his consent'. But once a society and polity is established, newborn citizens do not have any role in consenting to it. So how do they exercise consent in submitting to the local order? He suggests that a 'free State' will not 'keep an inhabitant in the country in spite of himself', and that under such a regime 'consent consists in residence: to dwell in the territory is to submit to the sovereignty'.63 This raises a problem, of course, when an inhabitant cannot leave a country because no other state will have him, or he does not have the resources needed to live elsewhere. But we will not dwell on that particular difficulty here. Is the idea that the citizens of any free state each consent to the rule of majority voting enough on its own to ensure a solution for Rousseau's first and more fundamental problem? By his own lights, not quite,. Where Hobbes had envisaged the possibility of the popular or democratic sovereign transferring sovereignty to an aristocratic committee or to an individual monarch – a view 60 SC, IV.2.7. 61 Ibid., I.5.2. 62 Ibid., IV.2.5. 63 Ibid., IV.2.6. 22 associated in the Social Contract with Grotius64 – Rousseau insists that the sovereignty of the assembly cannot be alienated in that manner. Thus he suggests that submission to a sovereign can preserve the liberty of an individual, and thereby solve the first problem, only if at least two conditions are fulfilled: first, as we have just seen, that the submission must be consensual or voluntary on the part of each; and second that the sovereign to which each submits in the first place – the assembly of the whole – does not give up its sovereign role to any independent agency. The idea in this second condition is presumably that if the assembly were to give up its sovereign role, then the consent of the individual members to being ruled by the assembly would be worth nothing: they consented to be ruled by the assembly, after all, not to being ruled by any other agency. But the second condition is not really a problem, in Rousseau's eyes, because he thinks that it is not only impermissible, but also implausible, that the assembly should ever transfer its sovereign powers to another body or to an individual. He argues that for any agent or agency 'it is absurd for the will to shackle itself for the future', tying itself to what someone else 'is going to will tomorrow'; this, he says, would be to deny its own nature as a will.65 And that premise leads him to an essentially anti-Hobbesian conclusion. 'If, then, the people promises simply to obey, it dissolves itself by this very act, it loses its quality of being a people'.66 No individual man could give himself to another in this way and still be regarded as being of sound mind. By extension, neither could a whole, incorporated people: 64 Ibid., I.5.2. 65 Ibid., II.1.3. 66 Ibid, II.1.3; see also I.7.3. 23 To say a man gives himself gratuitously is to say something absurd and inconceivable; such an act is illegitimate and null, for the simple reason that whoever does so is not in his right mind. To say the same of a whole people is to assume a people of madmen; madness does not make right.67 The two conditions that make submission to the assembly of the whole legitimate have to bear a lot of weight in Rousseau's theory, given that the assembly enjoys absolute power. It is unconstrained by law and incontestable by citizens, thus involving 'the total alienation of each associate with all of his rights to the whole community'.68 Where Bodin and Hobbes did not have problems with this absolutist vision of the state, however, Rousseau's commitment to republican freedom leads him to try to sugar the pill.69 He points out that 'each, by giving himself to all, gives himself to no one',70 emphasizing that the social contract does not involve accepting dependence on any other particular agent. And then he adds that the social contract has two distinct benefits, 'since there is no associate over whom one does not require the same right as one grants him over oneself'.71 The first benefit is that 'one gains the equivalent of all one loses': if others can affect you in their voting as members of the assembly, so you can affect them in that 67 Ibid., I.4.4. 68 Ibid., I.6.6. 69 It is worth noting, however, that Hobbes (Leviathan, 14.29) limits the extent to which individuals can commit themselves to the sovereign, arguing that no one can give up the right to seek self-preservation. Rousseau may be more extremely absolutist on this matter. Thus he writes that under the social contract a citizen's 'life is no longer a bounty of nature, but a conditional gift of the State' (SC, II.5.4). 70 SC, I.6.8. 71 Ibid. 24 same way. And the second is that one thereby gains 'more force to preserve what one has'.72 The idea here is that the sovereign body you form with others can give you a status that you could not have given yourself. To return to earlier themes, it can establish your possessions – or at least those that pass muster under the laws – as your property and, more generally, it can transform your natural liberty into liberty of a civil kind. 4 The second problem of freedom and Rousseau's response This attempt to soften the message, however, raises a second problem of freedom for Rousseau. The suggestion is that the social contract offers a good deal in promising to replace natural liberty by civil liberty. But that promise will be discharged only if the sovereign assembly that is established by common consent – and that therefore avoids the first problem of freedom – actually turns out to operate in a distinctively benign manner. The assembly must operate in such a way that 'the characteristics of the general will are still in the majority'.73 Specifically, it must not allow a particular faction, large or small, to gain control and to use voting as a way of imposing its will on other citizens. Should a faction of this kind gain control, it would no longer be the case that the assembly represented the community as a whole, with each citizen having an equal role and an equal stake in its operations. It would become an arena where some individuals or subgroups lorded it over others. 72 Ibid. 73 Ibid., IV.2.9. 25 The second problem of freedom is posed nicely by Rousseau when he asks: 'how can a man be both free and forced to conform to wills which are not his own'.74 His view, of course, is that there is no problem here if civil freedom is really established for all – a freedom, as we saw, that requires equality – and people are each protected in the same way by the sovereign whole. In that vision of the good society, the idea is that 'every Citizen be perfectly independent of all the others' – that is, enjoy private freedom as non-domination in relation to them – 'and excessively dependent on the City': that is, dependent on the protective, sovereign assembly, and only on that assembly, for protection against others.75 Traditional republicans would have shied away from the idea that each should be dependent on the goodwill of a single assembly, however comprehensive; that would have seemed to guarantee public domination. But Rousseau thinks that this dependence will be innocuous; indeed, that it will do nothing but good for the freedom of individual citizens, so long as it is truly the general will – the will of an un-factionalized, egalitarian assembly – that shapes the law. Being the will of an un-factionalized assembly, the general will may be expected to track the common interest of citizens, not the interests of this or that individual or subgroup: 'it is concerned with their common preservation, and the general welfare'.76 Or at least it may be expected to track the common interest so long as there is a legal adviser – unhappily named a 'lawgiver' – to keep the people from falling into error.77 The general will is essentially the will of the un-factionalized assembly, then, and while it is bound to aim at 74 Ibid., IV.2.7. 75 Ibid., II.12.3. 76 Ibid., IV.1.1. 77 Ibid., II.7. 26 identifying the common interest, it may sometimes go astray for lack of full information or understanding. Note that according to Rousseau it would make no sense for the citizens to allow someone like the lawgiver to rule over them, since this would be to alienate their sovereignty: 'the people cannot divest itself of this non-transferable right, even if it wanted to do so'.78 But it would certainly make good sense, he thinks, for them to follow the advice of such a presumptively enlightened counsellor. The second problem of freedom is that while the general will would establish people in equal enjoyment of their civil freedom, there is no guarantee that majority voting will preserve 'the characteristics of the general will', even in the presence of a lawgiver.79 The problem is that it is always possible for an assembly of citizens to become factionalized and always possible, therefore, that 'there is no longer any freedom'. People may get over the first problem of freedom by contracting unanimously into forming a society and polity, thereby subordinating themselves to a sovereign assembly. But they may still confront the second problem. They may find that the sovereign assembly that was established without compromising freedom actually operates in a way that fails to deliver the civil freedom that it promised: the sort of freedom that was supposed to compensate for the loss of natural freedom. The task that Rousseau confronts in facing this second problem is to identify institutions that can ensure that 'the general will is always upright and always tends to the public utility'.80 He looks for devices, in his own words, that would reduce 'the considerable 78 Ibid., II.7.7. 79 Ibid., IV.2.9. 80 Ibid., II.3.1. 27 difference between the will of all' – 'the sum of particular wills' – 'and the general will'.81 Happily, he thinks that there are 'practicable ways' to achieve this,82 he and identifies two in particular. In order to avoid faction, to take the first of these devices, it is necessary that in casting his vote, each member of the assembly 'states his own opinion'83 of what is 'advantageous to the state';84 he votes according to his perception of the common interest, in other words, not of the interest of his own self or faction. In maintaining that this is essential for the avoidance of faction, Rousseau is claiming in effect that there can be no freedom in a polity, even a polity that is ruled by a plenary assembly of citizens, unless there is a high measure of civic virtue among the citizenry. He rejects the principle adopted by his contemporary David Hume, who had maintained that in 'fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no other end in all his actions than private interest'.85 In supporting that principle Hume was closer to traditional republicans than Rousseau himself. Turning to the second of our devices, Rousseau argues in addition that in order to make it likely that citizens will be insulated from the effect of selfish or factional interest, they should be allowed only to consider 'subjects in a body and their actions in the abstract, 81 Ibid., II.3.2. 82 Ibid., IV.2.10. 83 Ibid., II.3.4. 84 Ibid., IV.1.6. 85 David Hume, "Of the Independence of Parliament", in Hume's Philosophical Works, III, ed. T. H. Green and T. H. Grose (London: Longmans, Green anc Co., 1875), 117– 118. 28 never any man as an individual or a particular action'.86 He requires, in other words, that the members of the assembly should only make general laws, and outsource issues of particular policy – that is, issues in which their own interests are likely to be implicated – to appointed magistrates. This means requiring that the republic should have a 'mixed government' and not be a democracy in the sense that he, following Bodin and Hobbes, gave to that term. It should not be a body that takes charge of all public decisions, whether of a general or particular nature. 5 The dilemma that Rousseau faces With Rousseau's responses to the two problems of freedom in place, we can readily identify the dilemma opened up by his theory. Put aside the possibility that the sovereign assembly that rules in a community is in error about the common interest; let fallibility not be an issue. The question that his two responses raise is whether people are entitled to reject subordination to their sovereign assembly, if they judge that the assembly is factionalized and that it no longer identifies or implements the general will. Rousseau's answer to this question must be a 'yes' or a 'no', but neither answer is appealing. Suppose that he answers 'yes', arguing that individuals are entitled in the scenario imagined to exit the social contract and to withdraw their consent to community rule. This answer is going to be highly problematic, because it would make political stability unattainable. According to the approach suggested, citizens would each be entitled to withdraw from their community, rejecting the legitimacy of its laws, as soon as they were 86SC, II.6.6. 29 persuaded, rightly or wrongly, that the assembly is serving the interest of a faction rather than the interest of the whole. This would be a recipe for chaos, since it is a permanent possibility in any society, however perfect the regime, that people will be persuaded that the assembly has been taken over by factional interests. Suppose, however, that Rousseau answers 'no' to the question raised, arguing that individuals are not entitled to exit the social contract just because they happen to think that the assembly has become factionalized. This answer is even more unappealing, because it suggests that his philosophy may have to condone the coercive subordination of some citizens to a form of rule in which others are really the masters, and not the community taken as a whole. While the first answer would open up the prospect of licensing anarchy, this second answer would hold out the spectre of permitting despotism. Rousseau does not ever confront the question raised, and it is worth considering where his principles would be likely to lead him. Given that he thinks that 'there is no longer any freedom' in a factionalized assembly,87 it may well seem that he would have to accept the first answer. He acknowledges, as he says in another context, that there is 'a great difference between subjugating a multitude and ruling a society'.88 And, adopting this response, he would cast the factionalized assembly as an example of subjugation rather than rule. But it is hard to believe that Rousseau would take this line. When he talks of the subjugation of a multitude, he has in mind a situation in which 'scattered men, regardless of their number, are successively enslaved to a single man', so that it involves 'a master and 87 Ibid., IV.2.9. 88 Ibid., I.5.1. 30 slaves' rather than 'a people and its chief'.89 But in the situation he has in mind, things are very different from how they would be under a factionalized assembly. In this situation, the master 'remains nothing but a private individual', because there has not yet been any social contract: individuals have not yet come together to perform 'the act by which a people is a people'.90 In the case of the factionalized assembly, the social contract has already occurred, so that we have a people in existence and a body that plays the role of sovereign. Thus Rousseau's remarks about mere subjugation do not argue that citizens who believe their assembly is factionalized are entitled to withdraw from the social contract. But not only does Rousseau lack good reason of this kind for adopting the first answer to our question, thereby accepting the prospect of anarchy, he also seems to have good reason for going along with the second answer and acquiescing in the prospect that, without ceasing to have claims on its citizens, a regime might degenerate into a form of rule, bordering on despotism, in which 'there is no longer any freedom'. He argues that the sovereign assembly is unlikely to require an individual to surrender much of 'his power, his goods, his freedom', on the grounds that this is important for the community. But he observes, crucially, that 'the Sovereign is alone judge of that importance', thereby implying that citizens have no right to contest the sovereign's judgement.91 This observation reminds us of the principle that, in the absence of a possible judge – a super-sovereign – the sovereign is incontestable by citizens. And it strongly suggests that even if individuals 89 Ibid., I.5.1. 90 Ibid., I.5.2. 91 Ibid., II.4.3. 31 believe that their sovereign assembly has become factionalized, still they are required to submit to its judgements. If this is right, then Kant may not have broken dramatically with the spirit of Rousseau's republicanism in arguing that no matter how badly it behaves, an existing sovereign cannot be legitimately challenged: citizens may retain 'the freedom of the pen' but they are 'not permitted any resistance'.92 Indeed, Kant seems to base that position on the very incontestability principle – Hobbesian in origin – that Rousseau defends, suggesting that contestability would presuppose a super-sovereign to judge between the contesting citizen and the contested ruler. He alleges that a constitution would be in contradiction with itself – it would both attribute and deny sovereignty to the ruler – if it allowed contestation. In words that Hobbes or Rousseau might also have used, he maintains that 'the contradiction is obvious as soon as one asks who is to be judge in this dispute between people and sovereign'.93 Conclusion Insofar as a society is set up by a social contract, it counts for Rousseau as legitimate; and insofar as it operates on the basis of the general will it counts, we might say, as just. The 92 Immanuel Kant, Practical Philosophy, ed. M. J. Gregor (Cambridge: Cambridge University Press, 1996), 302, 298. 93 Kant, Practical Philosophy, 463; see also 299. Kant sounds an equally familiar sort of note – although he is uncharacteristically sloppy in talking of a contract between people and sovereign – when he writes: 'Even if an actual contract of the people with the ruler has been violated, the people cannot react at once as a commonwealth but only as a mob' (ibid., 300, footnote). 32 question we have raised for him is whether a duly constituted society that ceases to be just, according to the perceptions of some citizens, ceases to count for them as legitimate and ceases to have claims on their allegiance. If the answer is affirmative then there is no prospect of political stability: a society can only be as secure as the opinions of, its citizenry as to whether factionalism is absent. If it is negative, then there is a real prospect of political injustice: a regime in which some individuals have no choice but to accept the rule of an incontestable assembly, even when they see as imposing a neglecting the common interest and imposing an unjust rule.94 It is this spectre of incontestable injustice that really threatens the Rousseauvian vision, for there is no ground on which he can allow individuals to challenge the judgements of their sovereign. And we should note in conclusion that this is the point at which the divide between that vision and more traditional republican doctrine is at its deepest, for in the traditional view citizens are not restricted to their role as lawmakers in an assembly, or as electors to that assembly. On the contrary, this view suggests that even when a regime counts as legitimate, still it is perfectly appropriate for the citizenry to challenge the decisions of the authorities, if not to try to undermine or overthrow the regime. Rousseau seems to entrench the position of citizens in relation to their state when he insists that they each have to be part of the law-making body, deliberating about what is best for their society and voting in accordance with that judgement.95 But the Social 94 On earlier discussions of an absolutist bent in Rousseau's thought, see Christopher Brooke's contribution to this volume (Chapter 8). 95 Cohen, Rousseau: A Free Community. 33 Contract actually weakens the position of individual potentially dissenting citizens in their dealings with government. They are required to go along with the majoritarian assembly and to rest content with having had a vote, albeit a losing vote, on any issue where they think that the decisions of that assembly were the product of an inimical faction. Indeed, they may not even have that consolation available, for they may not be able to get the assembly to vote on laws that they find objectionable: whether there is to be a vote on any issue will presumably depend also on the majority view. As I understand the older tradition that Rousseau sought to revise, a regime will count as legitimate insofar as its decisions are subject to the equal control of the citizenry in sufficient measure to allow them to pass the eyeball test in relation to government. In this way of thinking we do not look to see if the society is based on past or continuing consent in order to determine whether it is legitimate; we look for whether it is controlled by the citizenry in sufficient measure, and with sufficient equality, to enable them each to look the authorities in the eye without reason for fear or deference. Legitimacy in that sense is consistent, of course, with many public decisions serving sectional rather than common interests, even when those decisions are made by duly elected representatives or citizens as a whole. But the legitimacy of the regime does not require citizens to accept presumptively unjust decisions quietly, treating the legislature and government as an absolute sovereign. It allows them to contest the decisions actively, exercising a right and power that is given to them under the mixed constitution. Indeed, it requires popular contestation to be systematically available and potentially effective, for that is needed to help ensure that the citizenry have a suitable form of control over government. The legitimacy of the regime rules out only extra-constitutional resistance. It requires dissident 34 citizens to operate within the channels of complaint and protest that a mixed constitution would give them, where those channels extend in contemporary terms to include civil disobedience.96 The vision of an imperfect republican society that the tradition projects is very different, then, from Rousseau's. He has to envisage a society in which the disaffected submit more or less passively to their assembly's judgements, being restricted to expressing minority views and to casting minority votes within that body. In the traditional republican image, by contrast, even a legitimate regime is likely to be a site of widespread contestation and discord. This is the society imagined by Machiavelli (1965) in the sixteenth century, as he envisages a world like republican Rome in which it is the tumult and challenge of a riotous plebs that keeps the prospect of freedom alive.97 It is the society that Adam Ferguson presupposes in eighteenth-century Britain when he argues that freedom can only continue to be secured if it is supported by 'the refractory and turbulent zeal of this fortunate people'.98 It is a society where, in the words of his Irish contemporary John Philpot Curran, people are prepared to impose on government the eternal vigilance – the sustained invigilation – that is the price of freedom.99 96 Pettit, On the People's Terms and Just Freedom. 97 Niccolò Machiavelli, The Complete Work and Others (Durham, NC: Duke University Press, 1965). 98 Adam Ferguson, An Essay on the History of Civil Society, reprint of the 1767 Edinburgh edition (New York: Garland 1971), 167. 99 I am grateful for the helpful discussion of the ideas in this chapter that followed my presentation of them at a Rousseau conference at UCL (University College London) in April 2012, at a conference on Kant and Republicanism in Hamburg in March 2014, and at the Political Theory Workshop in Columbia University in December 2015. I am also grateful for helpful comments received from Avi Lifschitz.