rousseau 039 s theory of freedom continuum studies in philosophy

ROUSSEAU'S THEORY OF FREEDOM

Continuum Studies in Philosophy

Series Editor: James Fieser, University of Tennessee at Martin

Tolerance and the Ethical Life, Andrew FialaAquinas and the Ship of Theseus, Christopher M. BrownDescartes and the Metaphysics of Human Nature, Justin SkirryKierkegaard's Analysis of Radical Evil, David A. RobertsSt Augustine and the Theory of Just War, John M. Mattox

ROUSSEAU'S THEORY OF FREEDOM

MATTHEW SIMPSON

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Matthew Simpson 2006

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the publishers.

Matthew Simpson has asserted his right under the Copyright, Designs and Patents Act, 1988, to beidentified as Author of this work.

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A catalogue record for this book is available from the British Library.

ISBN: 0-8264-8640-1

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Typeset by Aarontype Limited, Easton, BristolPrinted and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

To my Mother

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Contents

Abbreviations

Preface

Introduction

Chapter 1: The state of nature

Chapter 2: Political society

Chapter 3: Civil freedom

Chapter 4: Democratic freedom

Chapter 5: Moral freedom

Chapter 6: Conclusion

References

Index

viii

ix

1

7

28

48

71

92

110

119

123

Abbreviations

The following are abbreviations for frequently cited books by Rousseau.

D= The Discourses and Other Early Political Writings, ed. and trans. VictorGourevitch, Cambridge Texts in the History of Political Thought

(Cambridge: Cambridge University Press, 1997).

S = The Social Contract and Other Later Political Writings, ed. and trans. VictorGourevitch, Cambridge Texts in the History of Political Thought

(Cambridge: Cambridge University Press, 1997).

E = Emile, or On Education, trans. Allan Bloom (New York: Basic Books, 1979).

C = The Confessions, trans. J. M. Cohen (London: Penguin Books, 1953).

Preface

The purpose of this book is to explain the theory of freedom developed byJean-Jacques Rousseau in his work The Social Contract. I should begin withtwo clarifications. The first is that this book is not primarily concerned

with the metaphysical problem of freewill, or the question of how people can

be free in a world where there is a sufficient reason for everything that hap-

pens. While Rousseau was interested in this issue especially with respect toits consequences for morality, he deliberately set it aside in The Social Con-

tract. The second is that I will use the words freedom and liberty interchange-ably to refer to Rousseau's concept of liberte. This book concerns his views on

the nature and scope of the freedoms that a good political society should offerits members.

The issue is important for a number of reasons. To begin with, although

The Social Contract covers many areas in social and political theory, its centraltopic is how people might construct a genuinely free political society. When

Rousseau took up the ancient issue of the best form of government he framedit as a question of how independent persons could unite into a community for

mutual protection while yet remaining 'as free as before' (S 50). This way of

approaching politics is itself significant and I will have much to say about it inwhat follows. But even on the surface it is clear that his theory of freedom is thekey to understanding his political thought in general. I will indicate some ofthe ways that his views on freedom help to illuminate other difficult and con-troversial aspects of his philosophy.

Furthermore, philosophical developments over the past few decades haveled to a renewed interest in the political thought of the seventeenth and eight-eenth centuries. The reasons are easy to find. The contemporary interest in the

nature and possibility of political liberty along with recent efforts to develop

theories of politics and morality based on the idea of a contract mirror many

of the concerns of Rousseau's age. While I agree that one may profitably turnto the Enlightenment for inspiration and guidance on these issues, the pro-

cess sometimes brings with it anachronisms that distort as much as they reveal

about the political philosophy of the period. So, even though I will makelittle reference to contemporary philosophy in this book, I hope that political

thinkers today will find it useful as a guide to one of the most fascinating andinfluential theories of freedom, obligation, and the social contract.

x Preface

Lastly, and I offer this only as a suggestion, it seems that for many peopletoday the concept of freedom has a special place among political ideals, akinto that held in other times by piety, happiness, or raison d'etat. It is a first prin-ciple of politics, which is not derived from anything higher and which serves asan ultimate justification for law and policy. The explanation of how freedomhas come to occupy such a high rank among political ideals is beyond the scopeof this book, although Rousseau's philosophy would probably be an importantpart of the story. I mean only to suggest that many people today seem tobelieve that freedom has a kind of inherent and absolute value, a belief thatserves as a premise for debate even in the highest councils of government.

Some readers may find this implausible given that we are often said to live ina disenchanted age in which politicians no longer think in romantic terms.Against this I can only offer the evidence that, particularly in the UnitedStates, with which I am most familiar, the weightiest decisions of both domes-tic and foreign affairs are often defended not in the name of God, or virtue, ortradition, or even national interest, but rather in that of freedom. This is not todeny that the political actors in question may have any number of ulteriormotives. Even if they do, it is significant that they choose to cover them withthe veil of freedom rather than those that historically have been the hidingplaces of such duplicity.

To the extent that this is so, concerned people will do well to think seriouslyabout the nature and conditions of political freedom, something that I think israrely done, judged by the vague and ambivalent meaning usually given to theword, especially by political leaders. I think that one can grasp the sense ofmodern political debate, or its lack of sense, only by thinking carefully aboutfreedom. While Rousseau's theory is not definitive even on its own terms, hedid as much as any philosopher to clarify the basic issues that appear when onetries to think seriously about what it would mean to live in a free society. Forthis reason, his political thought is perhaps more relevant today than it was inhis own time.

It is a pleasure to be able to express my gratitude to a few of the people andinstitutions that made this work possible. This book began as my doctoral dis-sertation at Boston University; I would like to thank the University and espe-cially the Department of Philosophy and the University Professors Program,both of which gave me considerable financial support. I conducted some of theresearch during a fellowship at the Institute for Human Sciences in Vienna,Austria; I would like to thank the Rector of the Institute as well as the per-manent and visiting fellows, who provided a stimulating intellectual commu-nity. Luther College also gave me generous support for research and travel.I have benefited greatly from conversations with Stanley Rosen, Christopher

Preface xi

Kelly, Knud Haakonssen, Aaron Garrett, and Alfredo Ferrarin. It wouldhave been impossible for me to complete this project without the help of mywife Regan; and the book would have been much poorer without her generousphilosophical criticism. Finally, I would like to thank my parents for their con-tinued support. This book is dedicated to my dear mother, Susan.

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Introduction

The basic problem for interpreting the theory of freedom in The Social Contract

can be simply stated. Rousseau discussed four different kinds of freedom thatare relevant to politics, yet the nature of each, their relative importance, andtheir relationship to the social contract after which the work was named are all

far from clear. A further difficulty is that in contemporary political thoughtthe words freedom and liberty are used to refer to ever more phenomena,

with the result that one can always find a new kind of freedom in Rousseau'sphilosophy. This book will offer an account of the four kinds of freedom that

Rousseau himself discussed and examine the major interpretive and philoso-phical questions they raise; people interested in other kinds of freedom should

be able to grasp his views about them based on what he said about these four.Because the details are complicated, a sketch of the terrain might be useful atthe outset.

The terms Rousseau used for the four kinds of freedom are natural freedom,civil freedom, democratic freedom, and moral freedom. For the purposes of

this book, natural freedom is the least significant because he defined it pre-cisely as the kind of freedom that one would possess if one lived outside of a

political society. While it is significant for understanding his theory of thesocial contract, it is less so once such a contract is enacted. The other kinds offreedom exist only within political society and are the source of the majorinterpretive problems. As a matter of scholarly history, these remaining kindsof freedom (civil, democratic, and moral) have led to three plausible andmutually exclusive ways of reading The Social Contract, defined by which ofthese freedoms scholars take to be most important. In addition to offering myown reading of his theory, I will discuss these interpretations in some depth

and argue that, for all their explanatory power, they share the common flawof reductionism. Because each sense of freedom is essential to Rousseau's philo-

sophy, they cannot be put into a simple ranking from most to least important.

The attempt to simplify his argument in this way not only distorts his theorybut also leads to a one-sided reading of his general political philosophy.

The first kind of freedom within political society is civil freedom, which

refers mainly to the opportunity for citizens to create lives of their own choos-ing without coercion by the state or other individuals. It is roughly the same

as the modern idea of civil liberty. Readers who take this kind of freedom to

2 Introduction

be Rousseau's guiding idea tend toward what we would today call a liberalinterpretation of his philosophy. On this view, the highest political good isthe creation and preservation of a sphere of free choice within which indi-vidual citizens can determine for themselves the contours of their lives, espe-cially regarding basic rights such as conscience, expression, movement, andassociation.

The next kind of freedom in political society is democratic freedom, whichrefers to the collective power of the people to rule themselves. As I will discuss,Rousseau advocated a political system in which the whole body of citizens hasthe power of making the law and of assigning and dismissing office holders.This kind of freedom is different from civil liberty in the sense that it refers toa collective power of the community rather than the options availableto individuals. Readers who emphasize this kind of freedom are led to what isperhaps the most common interpretation of Rousseau: namely, that he subor-dinated civil liberties to the collective will, with the result that his philosophyis best characterized as a kind of totalitarianism, albeit a democratic one.On this reading, the opportunity to make a life of one's own choosing in theabsence of social or political coercion had little value for Rousseau, becausehe was more concerned with the community's power to express its will in thelaw, against which the citizens retained no individual rights.

The point of contention between these two interpretations concerns how tounderstand the relative importance of democracy and individual liberty.Rousseau never made the mistake of thinking that the two form a naturalpair, which is not surprising given that he had personal experience of democ-racies that suppressed individual liberty and also of absolute regimes that wereamong the most liberal of their time. For example, his native city-state ofGeneva was something like a democracy in the sense that it offered its citizensmore opportunity for political participation than did most of the nations of hisday; yet its citizens gave themselves very little in the way of personal liberties.Conversely, when the authorities in France and Geneva eventually con-demned his writings Rousseau fled to one of the freest places in Europe at thetime, the lands of Frederick II of Prussia, who was an absolute despot, but afamously liberal one. Even if Rousseau avoided the error of thinking thatdemocracy and individual liberty go together seamlessly, this leaves open thequestion of how he understood and tried to mitigate the tension between them,which is very difficult to answer. Depending on which of them one takes to beof greater importance to his thought, one will lean either toward the liberalreading or toward the democratic-totalitarian one.

Yet there is a further dimension to this debate between individual libertyand collective self-determination. Rousseau emphasized a third kind of free-dom in political society, which he called moral freedom. This is a difficultidea to understand, so perhaps for now it is enough to say simply what he

Introduction 3

said, that moral freedom is obedience to a law that one has prescribed to one-self. This is freedom in the sense of autonomy or self-legislation. This form offreedom may at first appear to be indistinguishable from civil freedom,because both concern the ability of individuals to act according to their ownlights without interference. The difference is that whereas the limits of

civil freedom are determined by external forces and concern only outwardbehaviour, moral freedom is an inward power of acting according to rational

principles, which is limited by one's rational capacities and the ability tocontrol one's passions.

Perhaps a pair of examples will help to distinguish them. First, imagine analcoholic who would prefer not to drink but finds himself unable to choosesobriety and who, further, lives in a community that neither forbids nor com-

pels the imbibing of alcohol. This person possesses civil freedom because the lawpermits him to choose for himself whether or not to drink; but he lacks moralfreedom because he cannot act according to his own judgment, which says

that he should stop drinking. Conversely, think of a political dissident who

knowingly breaks the law and willingly accepts imprisonment for the sake ofraising awareness of an injustice. This person lacks civil freedom because she is

confined to a jail cell, yet she possesses moral freedom because she is actingaccording to her judgment about what is best. This latter example is not a per-fect illustration of Rousseau's point, because he thought that disobedience tothe law could never be an act of moral freedom; but this is a very technicalissue that I will discuss in Chapter 5. For now, these examples are enough to

give a rough sense of the distinction between these two kinds of freedom.Readers who take moral freedom to be the most important are led to a third

interpretation of The Social Contract, according to which Rousseau believedthat political systems should be judged neither by whether they allow for indi-vidual liberty, nor by whether they are democratic, but primarily by how wellthey cultivate and express the autonomy of their citizens. The scholars whoread him in this way are, not surprisingly, usually those who have been influ-enced by some form of German Idealism. Thus, by concentrating on moralfreedom they are led to what one might call a Kantian reading of Rousseau.

As I said at the outset, each of these three interpretations (the liberal, thedemocratic-totalitarian, and Kantian) begins from one of the three kinds of

freedom that Rousseau argued would exist in a good political society. I willtry to show, however, that these kinds of freedom are equally basic in his

philosophy and each has a kind of necessary place in the political system thathe described.

Furthermore, Rousseau did not believe that any one of them trumps the

others, nor did he believe that some simple trade-off could resolve the ten-sions between them. Just as individual liberty and democracy bear a compli-

cated relationship to one another, so do they both bear an equally complicated

4 Introduction

relationship to moral freedom, for each of these kinds of freedom is in tensionwith the other two. Democracies often curtail individual liberty, people who

have individual liberty often lack autonomy, people who value autonomy areoften suspicious of democracy, and so on. In this way, Rousseau can be saidto have had a tragic view of politics, meaning that all political arrange-

ments involve significant sacrifices and that no order of things can satisfy all ofhumanity's desires. His theory of freedom suggests that he was not the Utopianthinker that he is sometimes made out to be.

The structure of this work mirrors Rousseau's analysis of the differentkinds of freedom. The first two chapters discuss the background of his theory

by reviewing his arguments about human nature and the social contract.The next three chapters examine the three kinds of freedom that he said wouldexist in a correctly ordered political society; as for natural freedom, I discussit in the opening section of the third chapter. The final chapter reflects on

the significance of this theory of freedom for his overall social and politicalphilosophy.

A note on The Social Contract

Because The Social Contract is a terse and difficult work, it is appropriate to saysomething about its origin and character, and about my approach to it. In thespring of 1762 Rousseau published two epoch-making books, one was a longdidactic novel called Emile, or On Education, the other a short treatise on polit-ical philosophy called Of the Social Contract, or Principles of Political Right, which Irefer to simply as The Social Contract. Even though Rousseau later made derog-atory remarks about the structure and style of both works, the former wasassembled with some artistry. The Social Contract, for its part, was fragmentaryeven in its published form. In a notice at the beginning of the book, he said that

it was just one section of a larger work begun many years earlier and since

abandoned. The work in question was a book tentatively called Political Insti-tutions, which he began writing in the 1740s while an assistant to the French

Ambassador in Venice, and which has been lost except for The Social Contract

and a few shorter passages.The fragmentary character and concision of The Social Contract, along with

the difficulty of the subject, make it a hard book to understand. To make any

progress the reader must turn to other works in which he addressed the sameissues. Yet this is more difficult than it seems, not only because they are com-

plicated themselves but also because their relationship to The Social Contract isoften unclear. Most of Rousseau's works were written in response to specificrequests or events in his personal life, with the result that they do not forma neat system or progression; in fact, many scholars believe that his major

Introduction 5

writings contradict one another. While I generally agree with those who thinkthat he was consistent within and between his major works, serious questionsremain, which I will discuss as they arise.

Moreover, like all great philosophers, he found it necessary to invent newwords and to use old ones in new ways, a fact which often makes it hard tofollow his intentions. One must continually guard against substituting whatsomeone today, or even in the eighteenth century, would have meant by acertain word or phrase for what Rousseau has already said he meant by it.He never tired of warning readers to learn his dictionary. Unfortunately, theproblem does not end there because he did not always obey his own definitions.

The result is that some passages contain two unknowns: a context that can beunderstood only through its technical terms, and technical terms that can

be interpreted only in their context. The reader then faces the equivalentof a mathematical equation in two variables with many possible solutions.In other words, the explicit evidence is sometimes insufficient to prefer onereading to another, at which point the interpreter must rely on somethingelse. I will say as much when such cases arise.

Another difficulty in reading the work is Rousseau's prose style. While hewas a vivid and compelling writer, the style of The Social Contract has a rhetor-

ical tick that some readers find puzzling. He had such a great love of paradox-ical epigrams that sometimes he appeared to prefer being shocking to beingclear. He never missed a chance to say things like 'Man is born free, and every-

where he is in chains', 'the Citizen consents to all the laws, even those passed inspite of him', and 'he shall be forced to be free'. In most cases, however, theparadox exists only because he traded on the everyday meaning of words thathe had already defined as something else. These unusual expressions can gen-erally be understood through careful attention to his vocabulary.

To some degree, the difficulty interpreting Rousseau is also self-inflicted.If there is a common flaw in the contemporary research into Rousseau's polit-ical philosophy, much of which is excellent, it is anachronism. The problemwith interpreting him by the light of influential thinkers and debates today isthat he lived in a different intellectual climate, which had different assump-

tions and different aspirations. It is not always useful to assume that at bot-

tom he must have been a liberal, or a totalitarian, or Kantian, or some such

thing because the assumptions that are built into these rubrics do not matchperfectly with his own. While I agree with those who believe that the history ofphilosophy is interesting in part because of the help it offers to contemporary

debates, this approach carries a danger; it leads one to assume that the issues

that readers today find most interesting were also of highest concern to philo-

sophers of the past. This can be very misleading. One of the valuable thingsabout Rousseau is that his work challenges not only the conclusions of muchcontemporary political theory but also its assumptions and interests. This

6 Introduction

fact is difficult to appreciate as long as one believes from the outset that hisphilosophy must fall into some common pre-existing category. In any case,I have tried to do justice to the great distance that separates his intellectualclimate from our own, while still suggesting that his political theory containsinsights of permanent interest.

Finally, the standard edition of Rousseau's work is the five-volume series:Jean-Jacques Rousseau, Oeuvres completes, ed. Bernard Gagnebin and MarcelRaymond (Paris: Gallimard, Bibliotheque de la Pleiade, 1959—95). To makethe present work less cluttered, I have cited only standard English editionswithout including page references to the Pleiade series. Most of the worksthat I discuss in detail are so short and well known that interested readerswill have no trouble finding the relevant passages in French. Furthermore,Victor Gourevitch's English edition of Rousseau's political writings, to whichI primarily refer, includes page numbers of the Pleiade series in the body of thetranslation. The Social Contract and most of the works discussed in the presentbook are contained in Volume III of the series, published in 1964 and re-printed in a corrected edition under the editorship of Robert Derathe in 1979.Rousseau's Confessions appear in Volume I, along with his other autobio-graphical writings; Emile is contained in Volume IV.

Chapter 1

The state of nature

1

To understand Rousseau's theory of freedom in The Social Contract it is neces-sary first to look at the contract from which the work takes its title, because the

nature and scope of these freedoms are defined by the terms of that pact. Likemany philosophers of his age, and today, Rousseau thought of political societyin terms of a voluntary association of independent persons who unite for thepurpose of a better life than would be possible on their own. The basic questionof his political thought concerns the conditions under which people could form

a political society by placing bonds of mutual obligation upon themselves.Whatever the answer to this question, it can take the form of a covenant suchthat 'I'll do so-and-so for you, if you do such-and-such for me'. The hypothe-tical agreement that could bring into existence such a union is what he called

the social contract; the mode of life that follows from it he called politicalsociety. His theory of the social contract was a kind of spring from which the

rest of his political philosophy flowed. More importantly for the present,the answer he gave to the problem of the social contract determined not onlythe nature and purpose of political society as he conceived it but also the scopeof each citizen's freedoms and obligations within that society. Thus, the firststep to understanding his theory of freedom is to see what the social contractstipulates and why.

Like most philosophers who think of politics in terms of a contract, Rous-seau began his account with a theory about the people who enter the contractand what they hope to get out of it. This is to say that he began with a theory of

human nature and human motivation, which served as the basis of his account

of the social contract. He expressed this theory by means of an expository

device called 'the state of nature', which is itself a source of some difficulty.

For although many philosophers make use of something like the state of

nature as a description of the condition that exists before the contract is

made, they paint widely different pictures of what that state is like and evenhave different ideas about what it is a picture of in the first place. It is necessarytherefore to look carefully at the state of nature in Rousseau's philosophy to seewhat it is and how it functions.

8 Rousseau's Theory of Freedom

The state of nature is in fact one of the more difficult aspects of The SocialContract', the book says very little about the conditions under which the con-tract is made, a fact that in turn makes it hard to see why its stipulations are

what they are. There are at least four important features to his theory ofthe state of nature, the first two of which are easier to understand than thesecond. The first feature is that people in this condition possess the desire

for self-preservation and the improvement of their lot. In the absence of thismotivation no impetus would exist to draw people into the social pact in the

first place. The second is that they are both rational and reasonable, to usethe modern terminology, which is to say that they are able to understand howto improve their condition through the promise of mutual aid and also wil-

ling to honour the promises that they expect others to honour.1The third feature is that they find themselves in conflict with others. Among

philosophers who make use of a theory of the state of nature, Rousseau is notthe only one to argue that it is a state of conflict; yet he is not as explicit as someregarding the causes and nature of the conflict. He refers only to, 'the state ofnature, when, waging inevitable fights [combats], they would be defending the

means of preserving their lives by risking them' (S 63-4). Although the detailsconcerning the source of this conflict cannot be understood based on The SocialContract alone, they are not especially important for Rousseau's theory. The

significant point is that the state of nature is inhospitable enough that peoplemust join together in order to preserve themselves. 'I assume men havingreached the point where the obstacles that interfere with their preservationin the state of nature prevail by their resistance over the forces which eachindividual can muster to maintain himself in that state' (S 49). While the tra-ditional way to formulate the point is to say that the state of nature is a stateof war, Rousseau avoided this terminology because he had a complicatedtheory of war according to which it can exist only between states and notbetween individuals (S 46, 166), although he did not always obey his own

definition (D 172).The last feature of the state of nature, which is one of the most signific-

ant and distinctive parts of Rousseau's philosophy, is that the people he

described are independent in the sense that they have no prior obligations to

one another. 'In the state of nature, where everything is common, I owe noth-

ing to those to whom I have promised nothing. I recognize as another's onlywhat is of no use to myself (S 66). He denied that people owe anything to one

another outside of the social pact; and because there are no obligations to one-self or to others issuing from nature itself, all obligations must derive from con-tracts. While the full importance of this point will become clear only later,one thing is worth noting now. Rousseau's idea that people have no naturalobligations to each other is the foundation of his theory of natural freedom.

Natural freedom belongs to each person in the state of nature in the sense

The state of nature 9

that each has, 'an unlimited right to everything that tempts him and he can

reach. . . which has no other bounds than the individual's forces' (S 54).These four features of the state of nature, which one can extract from The

Social Contract by itself, provide a minimally adequate foundation for under-standing the social pact and the kinds of freedom that it produces. Many ques-tions remain, however, one of which is especially important. His theory seems

to leave unanswered the question of why the state of nature is a state of conflict,which in turn produces doubts about the nature of the people who enter thesocial pact and their motivations for doing so. Without a clear understandingof this, it is impossible or nearly impossible to see why the social contract stipu-lates what it does. The answer is provided only by Rousseau's overall theoryof the state of nature, which cannot be found in The Social Contract. His most

complete treatment of the issues is in the 'Discourse on the Origin and Foun-dations of Inequality among Men' of 1755, the so-called 'Second Discourse'.The state of nature in this work is, however, a very long story. Readers who feel

satisfied with what The Social Contract says by itself may skip to Chapter 2 withonly some risk of misunderstanding the state of nature and its consequences for

the terms of the social pact, although parts of his theory may seem arbitrarywithout the context that this earlier work provides.

At first it is not obvious that the 'Second Discourse' can help one to understandThe Social Contract because the two works seem to contradict each other. Whilethe latter argues that the state of nature is a state of conflict, the formerdescribes it as a condition that is benign, self-sustaining, and radically peace-ful. Furthermore, certain passages in Rousseau's work hint that even in hisown mind the two are contradictory. A very great deal turns on the questionof whether these works express two different theories of the state of nature ortwo different perspectives on the same theory. Therefore, before looking at the'Second Discourse' in detail it is worthwhile to demonstrate something that is

not at all obvious, that Rousseau intended the works to complement eachother and that they are somehow part of the same philosophical outlook

despite their differences. 2One piece of evidence that counts heavily against the view that the works go

together is a letter by Rousseau from 12 January 1762 to his friend Male-

sherbes. In this letter he recounted the day many years earlier that his basic,

life-long philosophical outlook first came to him. He said that one day in 1749

he was walking from Paris to Vincennes to visit his friend Diderot, who wasunder house arrest after the publication of his Philosophical Thoughts and Letteron the Blind. Reading a magazine as he walked, he came across an essay contest

2


proposed by the Academy of Dijon. The theme of the essay was to be: Has therestoration of the sciences and arts contributed to the purification of morals?'The moment I read this', he later said, T beheld another universe and became

another man' (C 327). Not the kind of person to check his feelings, he collapsedbeneath a tree and wept. In the letter to Malesherbes he went on to explain theconsequences of this event for his later work. 'Everything I have been able to

retain of the great truths which during a quarter of an hour illumined mebeneath that tree has been feebly scattered throughout my three principal

writings, this first discourse [on the sciences and arts], the one on inequality,and the treatise on education [Emile], which three works are inseparable [and

together form a single whole]' (D 320). The obvious absence of The Social Con-

tract from this list of'principal writings' inspired by the experience on the roadto Vincennes, along with the apparent differences in the theory of the state ofnature between this work and the 'Second Discourse' suggest that he did

change his mind between the composition of the two works. However, whilegranting the importance of this letter, I believe more powerful considerationssuggest something else.

The first thing to notice, although it is less than definitive, is that their com-position overlapped. The essay competition to which he entered the 'Second

Discourse' was announced in November 1753. He seems to have completedit by 1 June 1754 when he left Paris for Geneva by way of Chambray, where

he finished and dated the 'Dedicatory Letter' on 12 June. In any case, thework was in proof in Holland by the autumn of that year and published earlyin the next (C 362~8, D 348-50). Regarding The Social Contract, he said in hisConfessions that he began considering the topic while an assistant to the Frenchambassador in Venice in 1743-4 (C 377). He then began writing it under thetitle Political Institutions as early as 1751 and worked on it intermittently untilits publication in 1762. This shows that he was working on them more or lesssimultaneously. He even said in his Confessions that he was meditating on TheSocial Contract at the same time that his publisher was preparing the proofs of

the 'Second Discourse' (C 368). These facts make it unlikely that there is amajor difference in philosophical outlook between the two books however dif-

ferent they may be in topic and approach.Rousseau also gave a number of further clues to the relationship between

The Social Contract and his other writings. The most obvious of them is that

Book V of Emile contains an outline of The Social Contract, which is given toEmile as part of his education in politics (E 459—71). Although the versionin Emile is not identical to the full work, particularly regarding civil religion, itis close enough to bring The Social Contract into the same universe of ideas, andso into the system of philosophy developed in his 'three principal writings'.

One must grant, however, that this evidence is difficult to interpret given


that the significance of political theory for Emile's education is a subjectof much debate/

Nonetheless, Rousseau explicitly affirmed the conceptual unity of the worksin at least two further places. The first is in a letter to his French publisher onthe question of whether Emile and The Social Contract should be publishedtogether. He answered in the affirmative saying that, 'together they make a

kind of whole' (23 May 1762). Now, in the letter to Malesherbes, he had saidthat Emile and the 'Second Discourse' also make a whole. So, if Emile forms a

whole both with The Social Contract and with his 'Second Discourse', one mayinfer that the latter two works somehow express the same philosophical out-look whatever their superficial differences.

A passage from his Confessions is even more definitive. Here, he debated with

himself about the cause of the persecution that had come to him later in his lifeas the result of his publication of Emile and The Social Contract. He asked himselfwhether his enemies really intended to condemn his ideas, or whether theywere more interested in making him suffer personally and used his writings

merely as a pretext. He concluded that the latter must be the case becausethe persecutions began many years after the publication of his early and most

audacious works, which were applauded at their first appearance. He askedwhy The Social Contract should have brought on him such condemnation

when, 'all that is challenging in The Social Contract had previously appeared inthe Essay on Inequality [the 'Second Discourse]' (C 379). This passage, takentogether with the letter to his French publisher, and with the outline in Emile

show that from Rousseau's own perspective The Social Contract was part of thesame philosophical system as his 'Second Discourse'.

This conclusion leaves open the initial question of why he neglected toinclude The Social Contract in the list of his principal works that derived fromhis experience on the road to Vincennes. While this is difficult to answer,it is also irrelevant for now. The important issue is not whether he thoughtThe Social Contract was important, but whether he thought it coherent with his'Second Discourse'. One reason for its absence might be that he composed TheSocial Contract in a rhetorical register different from the three works he men-

tioned, which have a stylistic as well as a doctrinal resemblance. Those threeare rich in metaphor and example as well as stinging criticism of alternative

theories, whereas he said of The Social Contract that he 'meant to employ solelythe power of reason, without any vestige of venom or prejudice' (C 378n).

Another reason might be that, at the time he wrote the letter, The Social Con-

tract was finished but had not yet been published; and he was unusually jealousof its contents. T was afraid', he said, 'that it would seem too bold for the age

and the country in which I was writing, and that my friends' alarm mighthinder me in the execution' (C 377). 6


3

Having established that in Rousseau's mind his 'Second Discourse' and TheSocial Contract formed a kind of whole, the question remains of how they gotogether given that one depicts a peaceful state of nature while the otherdepicts a condition of violence. To answer this, a few preliminary remarksabout the 'Second Discourse' are necessary. Regarding its purpose, he com-posed it in 1753-4 in response to an essay contest proposed by the Academyof Dijon, the same body that a few years previously had awarded him firstprize for his 'Discourse on the Sciences and Arts', which was written immedi-ately after his experience on the road to Vincennes. The question for thenew contest was: What is the origin of inequality among men, and is it justifiedby natural law? To answer this Rousseau believed that he should give anaccount of human existence prior to political life and prior even to social life,in light of which he could discover the natural law and the origin of social andpolitical inequality.

He argued that to know the origin of inequality today we must begin 'byknowing men themselves', by which he meant to investigate humanity, 'asNature formed him, through all the changes which the succession of timesand of things must have wrought in his original constitution, and to disentan-gle what he owes to his own stock from what circumstances and his progresshave added to or changed in his primitive state' (D 124). This is the contextof his theory of the state of nature in the 'Second Discourse'. The content ofthat theory is his famous argument for 'the natural goodness of man' or as it issometimes unfortunately expressed, 'the noble savage', according to whichpeople in the state of nature are benign, asocial, and gentle. He said, T see ananimal less strong than some, less agile than others, but, all things considered,the most advantageously organized of all: I see him sating his hunger beneathan oak, slaking his thirst at the first Stream, finding his bed at the foot of thesame tree that supplied his meal, and with that his needs are satisfied' (D 134).

On this theory, nature was abundant and people had few needs and evenless interest in other people. Their only drives were a basic instinct for self-preservation and the capacity to feel pain at the suffering of others. Althoughthey had a latent kind of freewill and perfectibility, or the power to learnnew things over a lifetime and from one generation to the next, theirlife was stable and complete (D 140-2). The result was a condition in whichpeople were satisfied, self-reliant, and generally safe at least from each other.He said that, 'since the state of Nature is the state in which the care for our ownpreservation is the least prejudicial to the self-preservation of others, it followsthat this state was the most conducive to Peace and the best suited to Mankind'(D 151). On this theory of human nature, people are fundamentally peace-loving and in no way disposed toward harming one another. He depicts them


as, 'wandering in the forests without industry, without speech, without settledabode, without war, and without tie, without any need of others of his kindand without any desire to harm t h e m . . . subject to few passions and self-

sufficient' (D157) .Rousseau realized as well as anyone that this theory of human nature would

seem implausible to his readers, none of whom approximated this model of thebenign and self-sufficient person. He therefore went to ingenious lengths tomake his case. He predicted, for example, that his readers, wanting to see

their own violent natures reflected in his theory, would reply that even in thestate of nature males would fight over the females of the population, as hap-

pens with most other species. He responded by saying that there is a differencebetween human beings and almost all other creatures. The number of femalestends to be greater than the number of males which relieves some of the pres-sure of finding a mate; and furthermore women unlike the females of manyother species are able to conceive at any time of the year, which diminishes

the competition and avoids the fate of most other animals, which face 'one ter-rible moment of common ardor, tumult, disorder, and fighting; a momentwhich does not occur in the human species, where love is never cyclical'(D 156). It is no wonder that many readers have concluded that the theory of

the state of nature in this work contradicts The Social Contract.While this theory of a peaceful state of nature is the most famous part

of his 'Second Discourse' it is not the whole story; and it is the other part ofthe story that helps to explain the relationship between this work and TheSocial Contract and to illuminate the meaning of the state of nature in the latter.

In Part II of his 'Second Discourse' Rousseau depicted a series of incrementalchanges in the state of nature through which it is transformed into a more dan-gerous and hostile place. It is unnecessary here to look at the details of theprocess by which the state of nature became a state of scarcity and violence.The most important part of the scenario is that as the human populationgrew it spread out into less fruitful climates, the result of which is that peopleencountered scarcity and must have begun to live in groups in order to survive(D 162). Scarcity does not arise in the earliest state of nature because nature is

abundant and humanity's needs are exceptionally simple, limited practically

to a little food and water. The rise of scarcity, however, caused people to beginto regard one another in a different way, which in turn was the cause of conflictbetween them.

This is one of the most interestingjunctures in Rousseau's theory of the stateof nature, because the argument goes in a different direction than one expects.

The question concerns how scarcity led to conflict. The most obvious answer is

the one given by Rousseau's predecessor Thomas Hobbes, who argued in hisLeviathan that scarcity leads to violence because of competition and fear.

Under conditions of scarcity, one person's well-being is necessarily prejudicial


to another's; and because all people have a concern to watch over their ownsurvival, their interests are incompatible and they find themselves in conflictwith one another. Furthermore, because people then sense that their interestsare incompatible, they begin to fear harm from others, at which point theymay choose to strike first. 'And from this diffidence of one another, there is noway for any man to secure himselfe, so reasonable, as Anticipation; that is, byforce, or wiles, to master the persons of all men he can, so long, till he see noother power great enough to endanger him'.7

Rousseau, however, did not emphasize competition and fear as the explana-tion for how scarcity led to violence. He based his account on a sophisticatedtheory of something like what for Hobbes had been only the third cause of vio-lence in the state of nature, which he called 'glory' and defined as 'joy, arisingfrom imagination of a mans [sic] own power and ability'. This is the heartof Rousseau's theory. He argued that under scarcity people were forced tobegin to cooperate and to develop technology in order to meet the materialneeds of life. This had the dual effect of bringing people into more regularacquaintance with one another and of enlarging their intellectual capacities.In these circumstances, people began to have thoughts they never had before;in particular they developed comparative notions such as great, small, strong,and weak and they eventually realized that others were judging them justas they judged others (D 165-6). At this moment there arose a desire tobe regarded highly by one's peers, which Rousseau argued is the basic causeof violence.

To express this idea he used the term amour-propre, a very complicatedconcept in his work, which I will translate as 'vanity' (D 218, 377). At the riskof simplifying too much, vanity is a socialized form of the natural humanconcern for one's own well-being. He imagined a scenario that might havetaken place once people had begun to interact more regularly. 'Everyone',he said, 'began to look at everyone else and to wish to be looked at himself,and public esteem acquired a price. The one who sang or danced the best;the handsomest, the strongest, the most skillful, or the most eloquent cameto be the most highly regarded' (D 166). To put it succinctly, vanity is thedesire to be regarded as better than other people. In this sense, it is a desirenot for a determinate good like food or shelter but rather for a certain kind ofrelative consideration. Rousseau gave an account of this phenomenon inrespect to wealth.

[If] one sees a handful of powerful and rich men at the pinnacle of greatnessand fortune while the masses grovel in obscurity and misery, it is because theformer value the things they enjoy only to the extent that the others aredeprived of them, and they would cease to be happy if, without any changein their own state, the People ceased to be miserable (D 184).


The idea that people desire to possess things mostly in order to make othersfeel envious is one of the most important aspects of Rousseau's social theory.

Perhaps a further example will help to make his thesis clear. Many peopledesire to possess a luxurious home. Now, it is one thing to desire shelter fromthe weather, which is a natural need that is independent of society, it is anotherto desire a luxurious shelter. The difference is that the standard for luxury is

relative to one's society, not independent of it, and one's desire to reach thatstandard is in some sense created by society, because in different circumstancesthe same person would often wish to reach a different standard. In otherwords, luxurious residences are considered luxurious not because of their

intrinsic qualities but because they are more sumptuous than those of one'speers, whoever they happen to be; and the desire to possess such a home is not

a desire for shelter but rather a desire to be envied by those peers. When every-one else lives in a hut the person feels pleased who has a small house; but that

same house seems undesirable as soon as everyone else has one like it, eventhough the house itself has not changed. Rousseau argued that such is thecase with most possessions and especially with money itself. Judith Shklarparaphrases his theory this way, 'For the rich wealth is important becausethey have more than other men. Indeed they would not enjoy their wealth ifthe poor did not suffer. It is in order to be admired and to look down upon theless fortunate that men desire power and possessions. Inequality is the whole

object of their striving, not the fulfillment of any immediate needs'. 9

Rousseau argued that vanity rather than competition or fear is the primary

source of violence in the state of nature. For individuals, it pushes many peopleinto squalor and misery because the wealthy and powerful rely on the exist-

ence of the disadvantaged in order to satisfy their desire to be envied. Thus,instead of using their means to assuage the condition of those who suffer,wealthy people tend to use it instead to acquire things they do not need inorder to make the relative misery of others unmistakable. Furthermorevanity causes people, in Rousseau's phrase, to live constantly outside of them-selves, existing only in the opinions of others, and engaged in the endless andfutile work of gathering the envy of their fellows (D 187).

For the community, it causes its members to regard each other as com-

petitors and enemies. The redoubled strength that should come from the

combined labours of its members is dissipated in petty quarrels, schemes,

resentments, and jealousies. 'Finally, consuming ambition, the ardent desire

to raise one's relative fortune less out of genuine need than in order to placeoneself above others, instills in all men a black inclination to harm one

another' (D 171). He argued that this is what the benign and pleasant state

of nature becomes under the influence of vanity.To say that the state of nature is a state of conflict is not, however, to say that

it is a condition of open violence at all times, for people might occasionally be


able to coordinate their actions for mutual benefit. Because Rousseau's theoryrelied more on vanity than on competition and fear to explain the source ofconflict in the state of nature, his account of the basic problem of cooperationhas a slightly different cast than that of Hobbes, by whom he was greatly influ-enced. It is difficult to be precise about the difference, however. If I may spec-ulate, I think that one motivation for Rousseau's frequent, vitriolic criticismsof Hobbes was that, sensing that their theories were similar on this point, hedistanced himself by insult when he feared of being unable to do so by argu-ment (D 151, S 164f). In any case, Rousseau believed that some low-levelcooperation is possible in the state of nature. He said of this so-called naturalman that 'he was in a position to distinguish between the rare occasions whencommon interest should make him count on the help of his kind, and the evenrarer occasions when competition should make him suspicious of them. In thefirst case he united with them in a herd. . . . In the second case everyone soughtto seize his own advantage' (D 163).

He expressed his take on the problem of mutual aid in the state of natureby means of his famous story of the stag hunt. 'If a Deer was to be caught,everyone clearly sensed that this required him faithfully to keep his post;but if a hare happened to pass within reach of one of them, he will, withouta doubt, have chased after it without a scruple and, after catching hisprey, have cared very little about having caused his Companions to misstheirs' (D163). In this light, the social problem concerns how to encouragepeople to move from a kind of reasoning that emphasizes risks to one thatemphasizes pay-offs. 10 This problem only exists at certain stage of the stateof nature, however. Eventually, society becomes complicated enough thatgovernment is required, at which point the powerful foist some kind of polit-ical order on everyone else, under which people are compelled by law andpunishment to do what they may or may not have chosen to do in the pre-political condition (D 172f).

These considerations explain how the two works go together and what lightthe earlier sheds on the later. The reason that one depicts the state of nature aspeaceful and the other as violent is that they describe two different things. Onedescribes the most basic existence of people who are motivated only by pityand a concern for self-preservation; the other depicts the existence of peopleliving under some scarcity and with a fully developed sense of vanity. To putit somewhat simply, the state of nature that The Social Contract begins with isthe one that ends his 'Second Discourse. ' Thus, the state of nature is a genericterm. Rather than identifying a single state of affairs or way of life, it was hisgeneral term for all human life outside of the social contract. This gives anindication how the two works go together when they seem so different on thesurface. They represent different states of human affairs outside the socialpact. The former describes humanity as it 'issued from the hands of nature',


while the other describes 'men as they are'. He referred to both of these condi-

tions as the state of nature, which makes sense as long as one remembers that it

is a generic term. He called the former the 'pure state of nature', but he gave no

unique name to the second (D 146).The state of nature in Part I of the 'Second Discourse' is the most simple,

abstract, and conjectural condition of human life. As Victor Gourevitch says,this is the condition of'men without any acknowledged bonds whatsoever',

therefore without 'rule, bonds, covenants, and hence artifice or conventionsof any kind'. 11 However, the pure state of nature is only one example of life

outside of covenants. The deepening complexity and rapid corruption of the

human spirit that Rousseau depicted in Part II of the 'Second Discourse' are

equally part of the state of nature. Even this distinction does not do justice

to the complexity of Rousseau's theory, however, because within the state ofnature, between the pure state of nature on one side and the social pact on the

other, there exist many gradations of human development. It is unnecessary tocreate a vocabulary to name each stage of evolution; but, for the purpose of

understanding The Social Contract, one point must be clear. Humanity doesnot leave the state of nature simply by virtue of developing moral relations

such as families and commerce. It does not even leave the state of nature by

creating states and governments. This point can be very confusing.

While it is easy enough to say that the state of nature is the condition that

exists outside of the social pact, the pact that Rousseau described is so abstractthat one may have trouble deciding who is in the state of nature and who is not.

A further difficulty is that in the 'Second Discourse' he classified some kinds of

life as fully political, which in The Social Contract appear to be part of the state of

nature. But this latter problem is not as deep as it seems. It arises only becausein the earlier work he was ambiguous about what defines political society, andso about where to draw the line between the state of nature and politicalsociety. He said that he would not now enter 'into the inquiries that stillremain to be pursued about the Nature of the fundamental Pact of all Govern-ment', and instead limits himself to 'common opinion' about the nature andfoundations of politics (D 179—80). He intended The Social Contract to be themore precise version.

On this view, humanity removed itself from the pure state of nature as soon

as it developed the least moral relations. But it will remove itself from the stateof nature in general only when it enters political society, which is defined as

the political arrangement in which free persons might consent to participate.

No amount of wealth, or culture, or complexity of life brings an end to the stateof nature. Furthermore, he argued that once humanity leaves the state of

nature by entering political society, it can easily revert back. When civil lifebreaks down, 'everything reverts to the sole Law of the stronger, and conse-quently to a new State of Nature, different from that with which we began in


that the first was the state of Nature in its purity, whereas this last is the fruit ofan excess of corruption' (D 186). It is impossible, on the other hand, to ima-

gine that humanity might revert to the pure state of nature.

This distinction has important consequences because it shows how The

Social Contract completes the work of Part II of the 'Second Discourse'. To saythis is not to insist that by 1753 Rousseau had worked out the full theory of The

Social Contract, although it is not impossible that he had. It is to show that the

state of nature described in The Social Contract is the same state of nature

described toward the end of the 'Second Discourse'. The Social Contract beganwith 'men as they are', by which term he meant people that have developed

the institutions and psychological dispositions of the people he described in

Part II of the 'Second Discourse'. 12

This somewhat long review of what Rousseau meant by saying that the state of

nature is a state of conflict provides the background for understanding histheory of the social pact. One significant question remains, however. Rous-seau's argument is ambiguous about what the state of nature is a theory of in

the first place. At some points he suggested that it is a theory of human history

and prehistory, of the historical origins of social and political life. At othertimes the theory appears hypothetical; it seems more like a story about thecareer of a certain kind of imaginary species. Furthermore, both of theseoptions present difficulties because, with regard to the first, the history is per-haps not very plausible and, with regard to the second, the philosophical valueof such a fictional story is not clear. Therefore, the last thing required to grasphis theory of the state of nature is to look at what it is a theory of, which hasconsequences for how to understand the meaning of the social pact and the

kinds of freedom that follow from it.

The nature of the problem is easy to see. As I mentioned above, he described

his goals at the beginning of the 'Second Discourse' in a way that seems unam-

biguously historical. He said that he intended to look at humanity, 'as Nature

formed him, through all the changes which the succession of times and of things

must have wrought in his original constitution, and to disentangle what he

owes to his own stock from what circumstances and his progress have added toor changed in his primitive state' (D 124). This is a reasonable way to frame theissue if he meant to investigate the historical origins of social and political insti-tutions. The issue becomes cloudy soon afterwards, however, for when speak-

ing of the task he said, 'For it is no light undertaking to disentangle what isoriginal from what is artificial in man's present Nature, and to know accuratelya state which no longer exists, which perhaps never did exist, which probably

4


never will exist' (D 125). The phrase, 'perhaps never did exist', makes thematter difficult. Furthermore, he next says, 'Let us therefore begin by settingaside all the facts, for they do not affect the question. The Inquiries that maybe pursued regarding this Subject ought not to be taken for historical truths,but only for hypothetical and conditional reasonings; better suited to elucidate

the Nature of things than to show their genuine origin' (D 132).The reader is left wondering what the place of history is in the essay and,

to the extent that it is not historical, how such hypothetical reasonings canclarify the nature of things. After all, the Academy of Dijon asked about the

origin of real inequality; and this is the question Rousseau seemed to answer.

This puzzle suggests that if the inquiry was historical then he tried for some

reason to conceal it, or that if it was not historical then he had some otheridea about what it means to show the origin of something. Most interpreta-

tions of the 'Second Discourse' lean toward one of these options or the other;

Alessandro Ferrara calls them the 'realists' the 'rationalists'. 13 While I believethat the rationalist interpretation is the right one, the evidence is difficult tosift through.

Of those who believe that Rousseau meant to be a historian, the most plaus-ible and unapologetic is probably John Hall, who argues that the state of

nature in the 'Second Discourse' was intended to depict a condition in the pre-

history of the human species. To answer the question of why Rousseau so oftendenied that he was interested in history, Hall argues that he wished to hide hisintentions for fear of religious persecution. He argues that if Rousseau had

been explicit about his historical intentions then, because his theory is incom-patible with the story of human history in the Bible, he would have put himself

at risk of censorship or other punishment. One of Rousseau's own commentsseemed to hint in this direction, albeit obliquely. 'Religion commands us tobelieve that since God Himself drew Men out of the state of Nature immedi-ately after the creation, they are unequal because he wanted them to be so; butit does not forbid us to form conjectures.. . about what Mankind might havebecome if it had remained abandoned to itself (D 132).

Hall says that, 'This sentence was obviously written with the tonguefirmly in the cheek; and to prove the point, Rousseau from this point on writes

exactly as we should expect him to write if he were giving a strictly historical

account'. This interpretation is not implausible, and has the virtue of show-ing how Rousseau's state of nature can have explanatory power. The factsone is to lay aside are the biblical facts; and one is to do so in order to clear the

way for the real facts, the historical facts, which Rousseau described in the

remainder of the 'work'. If the argument is historical, however, it is not very

plausible history for reasons that Hall goes on to point out. The inadequacy hefinds is not a merely factual one. He does not criticize Rousseau's source docu-ments, nor does he spend much time reviewing the modern anthropological


data. Rather, he rejects Rousseau's account of history because it is based on animplausible idea of human nature, namely the false assumption that 'for anynatural species there is (or, but for man's interference, would be) some naturalenvironment and some set of instinctive behavior patterns such that if anumber of members of the species were placed in that environment theywould, unless artificially inhibited, adopt the instinctive behavior patternsand, as a result, live and multiply successfully'. 15

The reason this is false, according to Hall, is that many animals, includinghuman beings, acquire only in their social life the knowledge and skills thatallow them to survive and multiply in their environment, and that thusdefine their nature. His example is a bird called a jackdaw, which on thebasis of instinct alone has no sense of which creatures in its environment aredangerous. The knowledge is passed from one generation to the next by akind of show-and-tell in which adult birds indicate to the young various ani-mals in their surroundings and emit a special sound when the animal is a dan-gerous one. The details of the argument are based on the research of KonradLorenz, the quality of which I am unable to judge. Whatever the status of thezoological evidence, however, Hall points to a deep issue. Certain creaturesabandoned to themselves would not flourish; they would die, or at least havelives that are unnatural for that species, which is to say that they would notexhibit their purified essence, because part of their essence is to be social.As it is not in the nature of these creatures to be abandoned to themselves,the researcher who so abandons them and then observes the consequencesobscures rather than reveals their essence.

For example, an entomologist who studied what ants do when they are notpart of a colony would discover nothing about the pure nature of ants becausepart of that nature is to be a member of a colony. Hall goes on to argue thatsuch is the case with humans. To imagine a human being who has not had asocial life, to imagine in particular a human being whose capacity for lan-guage has not been developed, is to imagine something that is not a humanbeing. The consequence is that Rousseau's state of nature fails as a historicaltheory. 'In other words, the state of nature, as Rousseau understands it, couldnot now exist and never could have existed. Before language there were nomen, but only apes; and Rousseau is interested in human nature, not in apenature'. 16 Hall's argument is exceptionally powerful as long as one believesthat Rousseau intended his theory of the state of nature to describe historicalreality. The reasons to accept Hall's interpretation, which requires that manyof Rousseau's most adamant statements be read as ironic, are that sometimesRousseau himself suggested that his work is historical and that otherwise thestate of nature seems to have no explanatory value.

As for the 'rationalist' interpretations of the state of nature, the best oneknown to me is that of Gourevitch, who at the outset closely follows Hall.


He sees that when Rousseau said we should set the facts aside, the facts in ques-tion are the biblical ones and that, by setting them aside, Rousseau avoidedthe appearance rejecting the orthodox reading of Genesis. 'It is hypotheticaland conditional reasoning because otherwise it would clash head-on with theDivines' interpretation and so invite their censure'. The difference is thatwhile Hall interprets this as meaning that the reasoning is not hypotheticalafter all, Gourevitch says that, 'it would be a serious error to conclude thatthat is the only reason why it is conditional and hypothetical, or, as Rousseaualso frequently says, conjectural'.

The reasons he gives about why the state of nature is necessarily conditionalare those that Hall gives about why it is a poor historical theory. The stateof nature is 'the state of men without any acknowledged bonds whatsoever.It would, for example, be a state without - prior to - the family properly socalled'. 19 It is also, 'a state without and conceivably prior to - rule, bonds,covenants, and hence artifice or conventions of any kind'. As it is impossibleto believe that a recognizable human being could live in such conditions,Hall thinks Rousseau's argument fails, whereas Gourevitch proposes that thisis precisely Rousseau's point. Because it is impossible to believe that a recog-nizably human being could live in such conditions, the state of nature is neces-sarily hypothetical. He says that, 'Human life may always, everywhere,necessarily, be a mixture of the natural and the artificial or conventional,and it may be perfectly "natural" that this be so. In order to know the stateof man free of artifice or convention, one is therefore compelled to conjec-ture'. 21 Gourevitch means that when Rousseau says the state of nature is amatter of hypothesis only, he does so not simply because his facts contradictthe biblical facts, but also because the state of nature could probably never bea matter of fact, which is to say it could never exist in history for the reasonsthat Hall adduces. Hall is correct as to why the state of nature fails as history;but what this failure demonstrates, on Gourevitch's reading, is not that Rous-seau was a poor historian but that his account was never intended to be histor-ical. He says that, 'However compelling one may find Rousseau's conjecturesin Part I of the Discourse, they remain conjectures. He knew that they are con-jectures; he said that they are conjectures; and he very clearly spelled outthe reasons why they necessarily are conjectures quite independently of thebiblical account'.

Language is a crucial issue for both interpretations. Hall argues that, since itis part of human nature to use language, a portrayal of a being without con-vention, which is to say without language, is a portrayal of something that isnot a human being. 'The conclusion must be that man is adapted by evolutionto be a language-using species. No other natural life is left open to him. Thepurely instinctive life has been left behind irrevocably along with the ape-sized brain. There is therefore no natural life of man that does not involve


artificial elements'. 23 For Gourevitch, the same reasoning shows why Rous-seau did not intended the state of nature to describe a historical condition.'The demonstration that every attempt to assign an absolute beginning to lan-guage - or to mutual understanding, or to moral relations - is inevitablycircular, serves as a conclusive reductio adabsurdum of the premise of wholly iso-lated, self-sufficient, speechless individuals, and so to the pure state of natureas a possible "fact given as real" '.

Gourevitch argues that, although Rousseau said that he would explain theorigin of inequality among men, one should not assume that 'origin' meanshistorical development, and that 'men' means Frenchmen, Englishmen, andthe like. Instead, Gourevitch argues, Rousseau took aspects of the humancharacter as it does exist in fact and abstracted them from their concretereality. Of all the features that human beings do or could possess, he took thedesire for self-preservation, the capacity to feel pity, perfectibility, and a fewothers, and removed them from their particulars. He then assembled theminto a simplified, purified being that he called natural man, but who neverappears in nature. The fact that this person could not be real is irrelevantbecause it was intended to embody a principle, not to be a fact.

I believe that Gourevitch's interpretation is preferable. Certainly it isbetter for those who practise a version of the principle of charity, according towhich the arguments of others should be put in the best light possible; this isthe case because on Gourevitch's reading Rousseau is a more subtle and inter-esting thinker than the misguided historian of Hall's analysis. Besides this,however, other considerations count in Gourevitch's favour. He can, to beginwith, account for more of the text because Rousseau himself often said thathis work was hypothetical not historical. While one must grant that thereare a number of ambiguous passages, each time that Rousseau was explicitabout his intentions, he explicitly said that they were hypothetical (D 125,128, 132, 134).

Furthermore, Gourevitch does not need to make an appeal to irony as aninterpretive tool in the way that Hall does. While it may be true that someauthors say the opposite of what they mean, I think that the benefit of thedoubt should fall on the side of frankness because, while the surface meaningof a text is not an infallible guide to an author's intentions, it is presumably thebest guide in the absence of other explicit evidence. So, if it is possible to makesense of a text by assuming that the author meant what he said I cannot seewhy, other things being equal, one should assume differently. Lastly, Goure-vitch's interpretation shows more historical awareness than Hall, whoexplains much of the 'Second Discourse' as prudential dissembling on Rous-seau's part without explaining what topics were controversial in 1755, orwho was persecuting whom and by what means. After all, Rousseau is one of


the only great philosophical authors of his time who affixed his name to allof his published works, which suggests that he was not overly concerned withpersecution. 25

Gourevitch's interpretation of the 'Second Discourse', according to which thestate of nature is a hypothetical depiction of a kind of natural person whonever actually existed in history, is generally the more plausible account ofRousseau's intentions. It does, however, raise the problem that Hall's inter-pretation is able to avoid. How does the hypothetical state of nature explainthe origin of real inequality? This question has not been the topic of muchthematic scholarly debate, which is understandable for those critics who thinkthat the state of nature describes a historical condition, because on thatinterpretation its potential explanatory power is obvious. But a minority ofcritics read it as a work of history. For those who think it is hypothetical,and especially those who, like Gourevitch, think that it is necessarily so, theproblem remains.

The denatured and non-existent creature that Rousseau described seemsodd and philosophically useless only for as long as one thinks of him as offeringan explanation in the form of historical development. If, instead, by the term'origin' he meant something other than genealogy, then the natural humanbeing might be more philosophically fruitful. In its use of this conjecturalbeing, Rousseau's method of explanation is reminiscent of that described byAristotle in his Metaphysics. In his discussion of mathematics, Aristotle said ofnumbers and geometric entities that they are separable from material thingsin thought, even though they are not separate in fact. Leaving to one side theontological mysteries into which this principle leads him, his thesis is the sameas one finds in Rousseau's analysis of the pure state of nature. The attributes hedescribed can be thought of separately from actual people, even if they werenever separate in history.

On this analogy, Rousseau's idea of the natural person functions like theidea of triangle in a geometric proof. Although a geometric triangle cannot infact be separated from colour, mass, location and the other attributes of allactual triangles, it can be separated by an act of the intellect. Similarly,although the elements of pure human nature cannot be found apart from thequalities of all living individuals, such as the use of a certain language, socialcustoms, and other accidents, they can be separated by the act of abstraction.On this view, the 'Second Discourse' presents the result of this separation inthought. To continue with the analogy, one could give many different answers

5


to the person who asks for an explanation of a given real triangle. If it is atriangle drawn on a chalkboard, for example, one could describe the frictionbetween chalk and slate. Alternatively, one could give the definition of a tri-angle. Getting nearer to Rousseau's case, if someone wants an explanation of aperson, one could name the person's parents, or one could define a humanbeing. The latter is as good an explanation as the former, and for most pur-poses it is superior because, to use Aristotle's vocabulary, formal causes aremore significant than either efficient or material ones.

This interpretation raises a question, however. If Rousseau meant simply toexplain the nature of human inequality, then perhaps this reading would hold.He could explain a given instance of inequality not by reference to the facts ofthe case, but by reference to features of human nature that the case embodies,such as vanity, greed, and fear. Yet, his intention was not to explain inequalitybut rather to explain the origin of inequality. Does this not commit him to ahistorical explanation? The answer depends on what one means by origin.If one means development in time, then the question answers itself. But this isnot the only way to explain the origin of something. In fact, the analogy togeometry is especially useful here.

The first proposition of Euclid's Elements describes how 'to construct anequilateral triangle on a given finite straight line'. To construct the triangle,two circles are drawn with centres at each end of the given line. (This is possi-ble because the given line is of finite length. ) And for each circle, the radius isthe length of the given line. Next, new lines are drawn from each end of thegiven line to an intersection of the circles. The resulting triangle is equilateralbecause each side is equal to the base, and so to the other side, for the reasonthat each is a radius of a circle for which the base is also a radius. Now, imaginethat someone at a chalkboard in a geometry class draws three lines forming aroughly equilateral triangle. What answer shall one give to the question,'What is the origin of the figure?' One could explain it in terms of frictionbetween the chalk and slate, or even in terms of the student's desire to get agood grade. Or, one could explain it in terms of the first proposition of theElements. In most cases, the last explanation is the most consequential; and it iscertainly so for someone who desires to understand plane geometry as opposedto mechanics or psychology.

As matters of fact, there are no geometric points, lines, or circles from theperspective of what may be empirically observed. Presumably, no one has oreven could observe a line in the geometric sense of a 'breadthless length'. Butthis does not diminish the power of the geometric explanation. To understandthe geometric origin of the real figure is to understand it as if it developed insuch-and-such a way, even though it did not and could not have so developedas a matter of history. Its factual origin is irrelevant and generally insignificantbecause the figure becomes intelligible when it is grasped as a consequence of


principles. This analogy helps to explain how a non-existent condition in thepast can explain the origin of real inequality in the present. The term originneed not mean evolution in time; it can mean derivation from the principles

of human nature. On this view, the factual origin of a given instance ofinequality is not particularly significant because such instances are graspedwhen they are understood as if they developed in this way, regardless of how

they developed in fact.The plausibility of this interpretation is strengthened when one remembers

that the 'Second Discourse' is concerned not only with the origin of inequalitybut also with the question of whether it is justified by natural law. While Rous-seau's views on natural law are hard to understand, he unquestionably

rejected the idea that natural law can be established by fact. This is the core

of his arguments against Hugo Grotius and others in the same intellectual tra-dition (D 126-7, 842-3).

Grotius had set out to discover whether there are any laws of morality thatderive from nature itself or whether all morality is relative to culture and con-vention. In doing so he distinguished between two ways of discovering the nat-

ural law, which he called the a priori and a posteriori methods. The a priorimethod, which he regarded as more philosophical but less useful, deduces the

natural law, or the principles of correct action, from features of human nature.So, for example, because being alive is necessary for all other goods, one ought

to preserve one's life and may use force to defend oneself from unprovoked

aggression. The a posteriori method, on the other hand, which is less certainbut farther reaching, discovers the natural law by looking at what principlesmost people or nations accept, even if one is unable to deduce them directlyfrom human nature.

Rousseau believed that the a posteriori method, which makes inference fromfact to law, is absurd for reasons expressed in the epigraph of the 'Second Dis-course', which is a passage taken from Aristotle's discussion of natural slavery,but which Rousseau later used against Aristotle. 'What is natural has to be

investigated not in beings that are depraved, but in those that are goodaccording to Nature' (D 113). 28 In other words, one cannot use the a posteriorimethod to discover the natural law because people as they are found in reality

are mostly corrupt, so what is common among them is a poor guide to what is

good. One must know what a healthy human being is in order to infer what

is good for it, for the medicine appropriate to the sick can be poison to thehealthy, and vice versa. The knowledge of what is appropriate to a healthyperson must necessarily be based on conjecture, because the healthy person is

itself a matter of conjecture given that everyone is sick in one way or another.

Rousseau feared that the method of Grotius would justify under the term nat-ural law all the abuses of corrupt governments. 'One could use a more consis-tent method', he said, 'but not one more favorable to Tyrants' (S 42).


This explains why, in order to answer the question proposed by the Acad-

emy of Dijon, he thought that one must begin, 'by knowing men themselves',

and why it is necessary to have 'precise notions' of the original condition 'in

order accurately to judge of our present state' (D 125). The reason is that nat-

ural law can be deduced only from the knowledge of correctly purified human

nature; thus the danger is not that one will misunderstand the facts but that

one will misunderstand the law. 'But so long as we do not know natural man,

we shall in vain try to ascertain either the Law which he has received or that

which best suits his constitution' (D 127). On this interpretation, the topic of

the 'Second Discourse' was not human history but human nature, which never

exists simply as such. The goal of the essay was to show in what sense inequality

is a consequence of the principles of human nature and thus to show whether

it is a perfection or a corruption of that nature. This interpretation of the state

of nature and the reasons that it is a state of conflict are sufficient background

for understanding the terms of the social pact and the kinds of freedom that

issue from it.

Notes

1. For background on the distinction between the rational and the reasonable insocial contract theories, see W. M. Sibley, 'The rational versus the reasonable',The Philosophical Review, vol. 62 no. 4 (October 1953), 554-60.

2. The best argument that Rousseau's various writings form a coherent philosoph-ical system is: Arthur Melzer, The Natural Goodness of Man: On the System of Rous-seau's Thought (Chicago: University of Chicago Press, 1990).

3. The letter is reprinted in, Oeuvres completes, Volume 1, 1134-8.4. Gourevitch's quotation leaves out this final phrase, 'etforment ensemble un meme tout'

(Oeuvres completes, Volume I, 1136).5. For a recent attempt to show how they go together see: Joseph R. Reisert, Jean-

Jacques Rousseau: A Friend of Virtue (Ithaca: Cornell University Press, 2003) Chap-ter 5, 'Justice, happiness and virtue'. There are, however, limits to this interpreta-tion. See my review in the Journal of the History of Philosophy, vol. 42 no. 4 (October

2004), 497-8.6. See also the editor's note to the letter to Malesherbes, Oeuvres completes, Volume I,

1850.7. Thomas Hobbes, Leviathan, ed. Richard Tuck, Cambridge Texts in the History of

Political Thought (Cambridge: Cambridge University Press, 1991), 87-8 (Chap-ter 13).

8. Hobbes, Leviathan, 42, 88 (Chapters 6 and 13).9. Judith N. Shklar, Men and Citizens: A Study of Rousseau's Social Theory (Cambridge:

Cambridge University Press, 1969), 52.10. For a sophisticated account of this social problem see, Brian Skyrms, The Stag Hunt

and the Evolution of Social Structure (Cambridge: Cambridge University Press,

The state of nature 2 7

2004). My review of Skyrms's book is in Ethics, vol. 115 no. 1 (October 2004),

166-9.

11. Victor Gourevitch, 'Rousseau's pure state of nature', Interpretation, 16 (Fall

1998), 33.

12. For an opposing and, I believe, implausible reading of the phrase 'men as they

are' see, Ronald Grimsley, 'Introduction', Du contrat social, by Jean-Jacques Rous-

seau (Oxford: The Clarendon Press, 1972), 96.

13. Alessandro Ferrara, Modernity and Authenticity: A Study in the Social and Ethical

Thought of Jean-Jacques Rousseau, SUNY Series in Social and Political Thought

(Albany: State University of New York Press, 1993), 156.

14. John C. Hall, Rousseau: An Introduction to his Political Philosophy (Cambridge, Mass.:

Schenkman Publishing Company, 1973), 30.

15. Hall, 32.

16. Hall, 33.

17. Gourevitch, 'Pure State of Nature', 28.






23. Hall, 32.24. Gourevitch, 'Pure State of Nature', 55.

25. For a further discussion and defence of Gourevitch's interpretation see, Nancy

Yousef, 'Savage or solitary? The wild child and Rousseau's man of nature', Jour-

nal of the History of Ideas, vol. 62 no. 2 (April 2001), 245-63.

26. Aristotle, Metaphysics, in The Complete Works of Aristotle, The Revised Oxford

Translation, 2 vols., ed. Jonathan Barnes (Princeton: Princeton University

Press, 1984), 1703-5 (1077bl7~1078b6).27. Hugo Grotius, The Rights ofWar and Peace, ed. Richard Tuck, 3 vols., Natural Law

and Enlightenment Classics (Indianapolis: Liberty Fund, 2005), 159 (I. I. XII).28. Aristotle, The Politics, ed. Stephen Everson, Cambridge Texts in the His-

tory of Political Thought (Cambridge: Cambridge University Press, 1988),

6 (1254a36-8).

Chapter 2

Political society

1

As I mentioned in the last chapter, it is possible to understand Rousseau's

theory of freedom only in the context of his account of the social pact, whichdefines the nature and scope of the freedoms that he thought would exist in a

well-ordered society. The background for his account of the social pact is histheory of human nature expressed in the device of the state of nature, some-thing that should be fairly clear by now. It is a hypothetical condition of self-interested, rational, and independent persons, who have a strong sense ofvanity and live under conditions of moderate scarcity. They find themselves

in a state of sustained conflict with one another and realize that the way to

remedy the inconveniences of life is to unite for the purpose of peace and

mutual aid. So, the basic question of The Social Contract concerns the termsunder which such a union would be rational for people of this kind in the con-

ditions stipulated.To be clear, Rousseau did not believe that any actual society had been

formed in such a way or on such principles. In the 'Second Discourse' he specu-lated that, as a matter of history, law probably first came into existence as atrick played by the wealthy on the poor. 'The rich, above all, must soon havesensed how disadvantageous to them was a perpetual war of which they alonebore the full cost, and in which everyone risked his life while only some alsorisked goods' (D 172). To protect their possessions better they talked othersinto obeying rules, particularly laws about property, which covered with a

veil of legitimacy the abuses of the pre-political condition. 'All ran toward

their chains in the belief that they were securing their freedom; for while they

had enough reason to sense the advantages of a political establishment, they

had not enough experience to foresee its dangers; those most capable of antici-pating the abuses were precisely those who counted on profiting from them'

(D 173). The social pact that he described in The Social Contract is for its partonly a hypothetical agreement, although good societies will embody its prin-

ciples in one way or another.It is worth noting that Rousseau's way of framing the question about the

best society, as a question about what kind of political system people would

assent to, is a definitive feature of his thought. This is the case because he

Political society 29

defined a good society precisely as the one that, given the power to choose,people would agree to be part of. This is important for what is does not say asmuch as for what it does because it means that what makes a political system

good is not, for example, that it encourages its citizens to be moral, or pious, orsome such thing. He did not ask what form of society would make people the

most virtuous, or what kind of system would make its citizens the happiest,or even what arrangement of political life does God wish us to have. Rather,he asked what order of things could people assent to without coercion. This

raises the question of why something is good simply because people would

agree to it.Rousseau's answer was based on his view that people have no obligations to

one another outside of the social pact. He said, as I quoted in the previouschapter, Tn the state of nature, where everything is in common, I owe nothing

to those to whom I have promised nothing. I recognize as another's only

what is of no use to myself (S 66). Such a person has, 'an unlimited right toeverything that tempts him and he can reach . . . which has no other boundsthan the individual's forces' (S 54). He believed that because people have no

such natural obligations, the only source of duty is a covenant; therefore, theonly political organization that can make claims of moral obligation on its

citizens is one to which they give their assent without coercion (S 41). Thisis the point of his comment 'that force does not make right, and that oneis only obliged to obey legitimate powers'. And, he continued, 'Since no manhas a natural authority over his fellow-man, and since force produces no right,

conventions remain as the basis of all legitimate authority among men'(S 44). Thus, the short answer to why a good society is defined by what peoplewould agree to is that there is no standard of good behaviour toward otherpeople beside what the social contract requires. He made the same pointeven more emphatically in a draft of The Social Contract called the 'GenevaManuscript', in which he argued that 'the law precedes justice, not justicethe law' (S 160).

Behind this general approach to politics is the view that the justified use ofcoercive power by one person over another must be based on principles that

the coerced person could agree to. As readers of his work know, Rousseaubelieved that most existing societies are exploitative and unjust, which is the

point of his famous remark at the beginning of The Social Contract that men are

born free but everywhere in chains. The purpose of his book was not to explain

how to remove those chains, however; it was to explain how such coercion

could be made legitimate [legitime] (S 41). Although his ideas about political

legitimacy are complicated, he made the underlying idea fairly clear in theopening passages of the book. When a stronger person tells a weaker onewhat to do, the latter is under no moral obligation to obey simply because

the former says so. Any obligation that exists must come from somewhere


else than the mere power of the stronger; and Rousseau believed that it mustcome from the consent of one to be ruled by the other.

Now, I think it is not unfair to Rousseau to say that his argument is toocompressed in these passages, because on the surface it appears to commit thefallacy of false bifurcation. He seemed to say that legitimate authority mustcome either from force or from consent, and since is does not come from theformer it must come from the latter. The argument is clearly valid, yet just asclearly the first premise seems dubious, or at least it requires further argument.There are many other ways of thinking about the basis of political authorityranging from God's will or reason, to theories of human flourishing, to utilitar-ian arguments about aggregate happiness. So, even if he did succeed in show-ing that force cannot be the foundation of political authority, which was hisprimary goal in the first sections of The Social Contract, he seems to have fallenshort of demonstrating that it must be found in conventions.

The answer to this objection, I think, is that Rousseau simply assumed forthe purpose of this work that people have no natural duties. He said littleto defend this point besides some disparaging remarks about philosopherswho try to base political authority on religious foundations (S 44). His was athin account of what people owe to one another, to say the least, yet it had theadvantage of providing a normative theory of politics that does not appeal tocontroversial and perhaps indemonstrable claims about God and morality.Speaking generally, his line or argument was simply a version of the principlethat the moral obligation to obey one's legitimate rulers comes from the con-sent of the governed, or rather that a ruler is legitimate precisely because thegoverned have consented to be so ruled. This is the reason that the basic ques-tion of his philosophy concerns the principles rational people could consent tobe governed by.

Starting from his theory of the state of nature, Rousseau set out to describe theterms of a social contract that people in such a condition could assent to. Evenin light of his detailed theory of the state of nature, however, he argued that itis difficult to specify the terms of the contract because the people who enterit face a dilemma that makes it seem impossible for them to come to anagreement in the first place. In the state of nature it is generally irrational toform pacts with others because doing so limits one's options when it comesto preserving oneself and one's possessions; thus, people who wish to create asocial contract encounter the problem that he formulated as follows, 'This sumofferees can only arise from the cooperation of many: but since each man's

2


force and freedom are his primary instruments of self-preservation, how can he

commit them without harming himself?' (S 49). It is generally irrationalto give up one's power and freedom in the state of nature because these arethe best means that one has to ensure one's own well-being, so people cannoteasily make the concessions that a social pact requires. Rousseau argued thatin light of this dilemma only one social contract is possible, the stipulations

of which are simple, universal, and invariable because they 'follow fromthe nature of things; and are founded on reason' (S 47). Rousseau's way of

expressing them was, 'These clauses, rightly understood, all come down to just

one, namely the total alienation of each associate with all of his rights to the

whole community' (S 50).Scholars who study the logic of decision-making have offered very technical

reconstructions of the dilemma of the social contract; but most of them takethe reader beyond Rousseau's ideas and interests, obscuring as much as they

reveal about his theory of the social pact. 1 The mistake is easy to understand,

however, because the most straightforward way to interpret his argument

is as some version of one of the classic problems of collective action, such as the'prisoners' dilemma' or his own famous dilemma of the stag hunt from the

'Second Discourse'. His intentions were quite far from these issues, however,

although it is true that on the surface he does seem to be concerned with some

technical problem about how people in the state of nature can maximize per-sonal utility. The primary evidence that this is the wrong approach is that hissocial contract obviously fails to solve problems of this kind, which suggests

that it was not intended to do so. The limits of this interpretation of the social

pact can be illustrated as follows.Let us say for the sake of argument that Rousseau was concerned with one of

the traditional problems of collective action. For example, imagine that twopeople in the state of nature want to avoid fighting over an apple tree and so

agree to share its fruits on the following terms: on alternate days they will eachguard the tree from third parties and then they will meet at the tree one dayper week to divide between them the apples that have become ripe in the pre-ceding days. In this case, the party that obeys the agreement will put herself ata disadvantage because, since nothing prevents the other party from stealing

the fruit when he is guarding the tree alone, the first party might well have lessto eat in the end than if she had never entered the covenant in the first place. 2

Furthermore, if the other party does obey the covenant then it will still be inher interest to break it because she can take advantage of the other party's

trust by stealing all of the apples for herself without having to fight for them.

So, whatever the other party does it is to each one's advantage to break the

agreement, which means that it was pointless to enter it in the first place.People in the state of nature are better off staying out of covenants except

in the case when they can dupe others into agreeing to irrational terms, as


Rousseau described in his 'Second Discourse', or when they can trick othersinto obeying while they themselves defect.

This way of formulating the issue may be too simplistic because, in circum-

stances where the stakes are low enough, it might be worthwhile to risk notdefecting from the covenant in the hope of building trust with the other

party. The first party might keep the covenant to see if the second does too,

and vice versa, the result being that both keep it, they share the apples, and

the contract holds. This is rational or at least potentially so because, in this

case, if the second person does not defect then the first may feel that it is in heradvantage not to defect either, given that the benefits of trust might outweighthe value of the future apples that she gives up by agreeing to share. This

scenario is similar to Rousseau's stag hunt in which the success of the hunt

relies on every person keeping his post but no individual knows if the others

will cooperate. So, when a hare runs by one of the hunters, is it more rationalfor him to choose the greater but less certain reward of the stag or the smaller

but more certain reward of the hare? The difference between the two dilem-

mas is that in the first one the agent calculates that she should defect no matter

what the other party does, while in the stag hunt it is best to cooperate if otherscooperate and best to defect only if others defect. The deeper issue, however,is that if these dilemmas or something like them were the problem of the social

contract that Rousseau had in mind, then the solution he offered was thewrong one.

To see why this is so, one need only recall his thesis that the problem of thesocial contract may be solved by changing the terms of the pact to those thathe specified, namely that all of the associates give up all of their powers andfreedoms to the community. In the cases of the apple tree and the stag hunt,however, changing the terms of the contract in such a way would do nothingto make the contract more rational. In these examples the parties worriedabout making even narrow agreements because doing so would put them-

selves at a disadvantage, especially if the other party should defect. But if this

is the problem of the social pact that Rousseau tried to answer, then the con-

tract he proposed is absurd, because if these persons find it too dangerous togive up even their freedom to take apples or hunt hare then they will find it

completely irrational to give up all their freedoms and powers as the social

contract requires. For in the latter case, the guarantee that other parties will

obey the agreement is no greater than in the former, while the possible loss if

they defect is much more serious. His theory of the social contract fails soobviously and completely as a solution to the problem of collective action

that presumably it was not intended to be one.To understand the meaning of the social contract it is necessary only

to remember that Rousseau was concerned with abstract rational agentswhom he depicted as deliberating about mutual obligations to place upon


themselves; he was not concerned with everyday problems about how to max-

imize utility in conditions of uncertainty. His was not a problem of rationalchoice in that sense because the social contract unambiguously relies on trust,the possibility of which he never doubted in his formulation of the problem.He also took it for granted that if people failed to do what they promised then it'would cause the ruin of the body politic' (S 53). In short, he assumed that

people in the state of nature are rational enough to see what is good for themand reasonable enough to follow principles that they want others to follow.

He concluded that under the conditions stipulated they cannot grant partialor limited duties to each other because doing so would hinder their powers

of defending themselves in matters where that particular duty was not vio-

lated. This is the reason that the social pact stipulates what it does; it has

nothing to do with when or whether it is rational to trust other people for thesake of generating the greatest benefit to oneself. A final example will makethis point clear.

Imagine that two people in the state of nature agree to a limited or partial

exchange of mutual obligations, perhaps they agree to the stipulation 'I willnot strike you if you agree not to strike me'. Although this puts a limit oneach person's power and freedom, it seems to bring a correlative benefit that

makes such a limit worthwhile. But then imagine that one party gets the idea

that, since the other has agreed not to strike him, he can steal her possessions

and she will be less able to defend herself against his depredation. When hebegins his robbery, she finds that having obligated herself in such a fashion

she has lost a considerable power by which to protect herself in matters wherethe contract is silent. This is the kind of problem to which Rousseau's socialcontract was the solution. It is not a concrete problem of collective action butan abstract problem of what mutual obligations rational and independentagents can agree to place upon themselves.

They cannot place partial limits on their power and freedom because theywould thereby expose themselves to dangers in cases falling outside of thoselimits. The only arrangement that makes sense is for each to give up every-thing to the whole community, which means that no cases fall outside of thelimits of the social contract and so all parties can be certain that their sacrifices

will not be taken advantage of by the others because there is nothing left by

means of which they could take such advantage. And because each partyknows that all the other parties submit to the same conditions, the contract is

as safe and stable as any can be. The questions with which rational choice the-

orists occupy themselves never arise in the framework of Rousseau's theory

because he posed a different problem.

The important point is that each party's surrender must be total. 'For ifindividuals were left some rights, then, since there would be no common super-ior who might adjudicate between them and the public, each, being judge in


his own case on some issue, would soon claim to be so on all' (S 50). I believeRousseau meant that by forfeiting all their rights to the community under thedirection of the common benefit, the associates reciprocally assure each otherthat no one can take advantage of another's sacrifice because no associateretains anything over which the community has no claim. If people retainedany such powers, there would be a degree to which they could exploit the sacri-fices of others. This would perpetuate the state of nature and the covenantwould be meaningless.

With the terms of the social pact made clear, even Rousseau's defendersmight agree that the complete forfeiture of one's power, freedom, and posses-sions to the community seems to be a dreadful arrangement. Moreover, heappeared to enjoy making it seem as onerous as possible, such as when hewrote, 'Now, the Citizen is no longer judge of the danger the law wills him torisk, and when [the government] has said to him, it is expedient to the statethat you die, he ought to die; since it is only on this condition that he has livedin security until then, and his life is no longer only a bounty of nature, buta conditional gift of the state' (S 64). However, his theory of the social pactcontained a number of qualifications that make it both more reasonable andless drastic than it might appear.

The first concerns the issue of whether in fact such a total forfeiture is neces-sary. People today are, I think, more familiar with a competing theory of thesocial contract according to which the citizens of a political society keep all oftheir rights and prerogatives and only give up to their community a few thingsnecessary for the general welfare. On this model the associates agree, forexample, to obey the speed limit on the roadways and to pay a fraction oftheir income for common defence and other public necessities, so that theycan keep everything else to themselves in a more secure fashion than wouldbe possible on their own.

Yet, Rousseau's theory of total alienation has advantages over this morefamiliar theory of partial forfeiture. For all its attractions, the latter faces aproblem that cannot be answered on its own terms and to which a theory likeRousseau's offers an adequate solution. To see the problem one can ask whathappens when individual citizens disagree with the political authorities aboutwhich powers and possessions the public good requires them to forfeit. Ima-gine for example that a wealthy person does not want to pay taxes to help theless well off because he believes that the cause of poverty is laziness and that therich therefore owe nothing to the poor. Then imagine that the government ofhis community decides that he is wrong and that the social contract requires

3


him to pay more taxes for the benefit of the poor than he thinks he should.

The question is, as long as he remains a citizen is he obligated to pay taxes

to the level that the law requires even though he wishes not to and believes

it to be unjust?Presumably the answer is yes, because a political society in which people

were not obligated to obey the law would not be a political society at all. But

this raises the question of how the community can rightfully demand of himsomething that he does not want to give unless in some sense he has already

given it to them. The theory that Rousseau proposed solves this problem bymaking each associate's forfeiture a complete one. On this model, when the

community taxes its citizens it is only asking to be returned something that

the citizens had already given and which the government had, so to speak,

lent back to them. For this reason, Rousseau's theory, which looks odd on thesurface, is the more plausible account of the social contract because it can

explain why citizens are obligated to give up certain powers and possessions

to the community even when they would prefer not to, something that everypolitical philosophy except anarchism requires but which the theory of partial

forfeiture cannot explain.Nonetheless, the requirement of total forfeiture still seems odd because it

appears to imply that people must simply give up their lives and possessions

to the community, which is a problem because the reason for entering the

pact in the first place is to hold one's life and possessions more securely. Howis it possible to protect something by giving other people the authority to

decide how it will be disposed of? The problem is especially pointed in Rous-

seau's case in light of his criticism of Grotius, who had argued that it is some-times rational to sell oneself into slavery. Rousseau responded that slavery isnever legitimate because putting oneself into that condition could never be theresult of a rational choice. 'To say that a man gives himself gratuitously [to amaster] is to say something absurd and inconceivable; such an act is illegit-imate and null, for the simple reason that whoever does so is not in his rightmind' (S 45). Yet, the social contract seems to require just such a forfeitureby its members.

The solution that Rousseau provided becomes clear by looking at his argu-

ment about what happens when the pact is enacted. The crucial point is that

when the associates forfeit their power, freedom, and possessions, they give

them up to the community as a whole, not to an individual or faction of the

community. This distinction explains how it is that by giving up their most

valued possessions the associates assure themselves of holding them moresecurely. By subordinating themselves to the common good of the community,

of which they are equal members, they expose themselves to the risks involvedin helping others but in return gain the security of having others who will cometo their aid.


Furthermore, Rousseau famously argued that while everyone forfeits every-thing, each gets it back in a higher form, 'they acquire everything they havegiven' (S 56). While this may appear to be a sophism, I think the point is

sound. Property is a simple example, for if property is a possession to whichits owner has a unique right then strictly speaking there is no property inthe state of nature because each person has a right to everything that tempts

him. In the social pact, however, since everyone forfeits everything, there is

nothing left by means of which anyone can claim special privilege, so posses-

sions from the state of nature revert back to their possessors in the form ofproperty to which they are entitled by the terms of the covenant, and which

the combined forces of the community are obligated to protect. A party to

the contract loses 'the unlimited right to everything that tempts him and hecan reach', but gains 'property in everything he possesses' (S 54). He said

that, 'What is remarkable about this alienation is that the community, farfrom despoiling individuals of their goods by accepting them, only secures to

them their legitimate possession, changes usurpation into genuine right, and

use into property' (S 56).

I will note in passing, however, that while the theory of property in The

Social Contract is unambiguous taken by itself, Rousseau seemed to say some-thing else in the 'Second Discourse' and also in his Encyclopaedia entry on 'Poli-tical Economy'. In the latter he wrote, 'It should be recalled in this connection

that the foundation of the social pact is property, and its first condition thateveryone be maintained in the peaceful enjoyment of what belongs to him'(S 29—30). This passage appears to contradict The Social Contract by saying thata full right to property exists in the state of nature, a right that is in turn theground of political obligation. This impression is made more vivid by Rous-seau's own marginalia on a draft of this passage, which reads, 'See Locke'.John Locke had famously argued in Chapter V of his Second Treatise ofGovernment that a full right to property exists outside of the social contract.Gourevitch traces the reference specifically to paragraph 140 of his Second

Treatise, in Chapter XI, in which Locke explained his theory of the legislat-

ure's power over the property of its citizens in the same vocabulary that Rous-

seau later used in 'Political Economy' (S 295).In this light, his 'Second Discourse' is also troublesome because there

Rousseau seemed to offer a third account of property, different from The

Social Contract in saying that property does exist outside of the social pact but

different also from 'Political Economy' in saying that it is not a natural rightbut rather a trick foisted on the poor. These passages present a knot of inter-pretive problems with many possible explanations. I think that the relation-

ship between the 'Second Discourse' and The Social Contract is the easier one to

resolve in the way suggested by Hall.


Hall remarks that while Rousseau did seem to say that property existsin the state of nature, property is there described as a 'clever usurpation'.

In other words, there is a difference between the nascent idea of property in

the state of nature, the idea that something is mine, and property itself, whichis a possession to which one has a unique right that others are obligated torespect. When in the 'Second Discourse' Rousseau described the gradual cor-

ruption of the pure state of nature, he said that people eventually createdthe idea of property, the idea that something is mine; but in doing so they

did not create property itself as denned in The Social Contract.3 On this inter-

Contract is one of words only. When Rousseau said in the earlier work thatpeople in the advanced state of nature have property, he referred to what in

the later work he called mere possession. Both terms refer to those objectsover which one can, as a matter of fact, exercise one's power and protect

against the advances of others; however, possessions are no more the propertyof their owner than they are of anyone else, because anyone who has the power

to take them has an absolute prerogative to do so. While in the 'Second

Discourse' Rousseau failed to use the verbal distinction between possessionand property that is central to The Social Contract, the conceptual distinction

is still there.However, the relationship of these two works to 'Political Economy' is more

perplexing. Rousseau finished the 'Second Discourse' in the spring of 1754 and

published 'Political Economy' in November of the next year in the fifthvolume of Diderot's and d'Alembert's Encyclopaedia. This means that if'Polit-

ical Economy' offered a different theory of property than the other two works,

then sometime in 1754-5 he fundamentally changed his mind about thenature of political society and then changed it back before finishing The SocialContract, which is all the more puzzling given his claim in Confessions that hehad been working out the central ideas of The Social Contract since the 1740s.Hall's explanation is much less plausible in this case. He claims that Rous-seau's basic thesis in 'Political Economy' was that arbitrary taxation mustbe avoided, yet at this time he had no handy argument against it because in1754 he had not yet developed the full theory of property in The Social Contract.

So, he picked up Locke's out of a kind of desperation and presented it as his

own even though he did not really ascribe to it.4This interpretation has a number of problems, two of which make it imposs-

ible to believe. First, even if Rousseau was in need of an argument against

arbitrary taxation, he probably would not choose, of all candidates, the

one based on a theory of property that he spent large parts of the 'Second

Discourse' and other writings trying to refute. Second, he was not in needof an argument against arbitrary taxation because he had already presented

pretation, the contradicatopm brtween the 'Second Discourse' and The Social


one in the 'Second Discourse'. There he said, 'The Magistrate, for his part,obligates himself to use the power entrusted to him only in conformity withthe intentions of the Constituents, to maintain everyone in the peaceable

enjoyment of what belongs to him, and on all occasions to prefer the publicutility to his self-interest' (D 180). Although Rousseau did not here discusstaxation in particular, the implication is obvious that as the duty of magis-

trates is to maintain people in the peaceable enjoyment of what belongs tothem, they should not tax them arbitrarily.

Hall is correct that the 'Second Discourse' does not offer an account of thegrounds of this obligation, as does The Social Contract; he is also correct that

Locke does offer such an account. What he does not see is that the argumentfor these grounds is unnecessary for the purposes of 'Political Economy'

because in order to argue against arbitrary taxation Rousseau needed only

to show that it violates the duty that magistrates owe to citizens; the question

of the grounds of the obligation is a different matter and beyond the scope ofthe essay. The argument of the 'Second Discourse' was sufficient for the pur-poses of'Political Economy', making the appeal to Locke unnecessary. It also,

however, makes that appeal harder to explain.

This question is similar to the one I discussed in the last chapter concerningwhy Rousseau left The Social Contract out of his list of principal works in the

letter to Malesherbes; it is an interesting question but one that is unnecessary

to answer. It is unnecessary because The Social Contract by itself contains littleambiguity on the question of whether property exists outside of the social pact,which means that the details of'Political Economy' are irrelevant to under-standing the former. Nonetheless, because the tension between them is tooobvious to miss, one cannot feel that one has an adequate understanding ofhis political thought without some account of the relationship between thetwo works. This is a case in which the explicit meaning of the texts maybe insufficient to determine what he intended because in the earlier work heseemed to say that property exists prior to the social pact and in the later one

he usually said that it does not. Although it is very hard to say why, I will endthis section with a suggestion.5

Rousseau said in 'Political Economy' that property is the foundation of

the social pact, yet the term 'foundation' is equivocal. It could mean what

Locke meant, that property exists outside of political society and that the

government of such a society should be dedicated to preserving this naturalright. Or, it could mean what Rousseau argued in The Social Contract, that

political society begins by bringing property into existence and should then tryto protect it. The wording that Rousseau used in all three works, that each

person must be preserved in 'the peaceful enjoyment of what belongs to him'is as consistent with the theory of The Social Contract as much as it is with

Locke's theory.


Returning to the general meaning of the social pact in The Social Contract,Rousseau argued that the total forfeiture of each person's life, power, and pos-sessions to the community is the necessary condition for creating bonds of

mutual obligation, which in turn help to ensure that each associate will holdthose things more securely than in the state of nature. He argued that com-plete alienation of the goods of every member is the means by which each

can be safe in the enjoyment of those goods. 'Finally, each, by giving himself

to all, gives himself to no one, and since there is no associate over whom one

does not acquire the same right as one grants him over oneself, one gains

the equivalent of all one loses, and more force to preserve what one has' (S 50).I have tried to show that while the social pact sounds ominous, there is reasonto believe both that the associates would be better off in political societythan on their own and that the contract Rousseau described is the only

one, given his theory of the state of nature, that could bring such a societyinto existence.

While this theory of political obligation based in consent and total alienation

has a number of advantages, it faces serious objections, most of which wereraised by David Hume in his 1748 essay 'Of the Original Contract' and havebeen a topic of conversation throughout the intervening centuries. 6 Although

I doubt that Rousseau could answer all of them adequately, they help to clar-

ify the intentions and limits of his theory. Perhaps the most obvious problem isthat while his theory relies on a social contract, there never was such a thing.Indeed, most political philosophies that make use of the idea of a social pactface the problem that it never happened. Furthermore, even in the rare caseof a nation like the United States that did begin in a social pact, only a tinyminority of those whom it claimed to govern actually gave their assent to it.After all, only a small percentage of the population was allowed to vote onthe Constitution in the first place, namely the members of the various statelegislatures; and many of them voted against it. Furthermore, those legislators

were themselves elected by the small minority of the total population consist-ing mostly of white, male, landholders.

It is therefore unclear why the people who voted against it or were not

allowed to vote at all, which together made up almost everyone, should have

been required to obey principles whose moral force, according to Rousseau,comes only from their being consented to. And even if there were an answer

to the question, it would not explain why future generations are so obligatedgiven that they were not even in existence when the contract was made. And

all this is without mentioning that the terms of the Constitution of the United

4


States along with every other existing constitution are nothing like the systemthat Rousseau advocated, even though he argued that the 'clauses of this con-tract are so completely determined by the nature of the act that the slightestmodification would render them null and void' (S 50).

It seems that the only way to answer these concerns is by means of a theoryof tacit consent, according to which people can be said to consent to things thatthey never explicitly agreed to or even understood, which is a notoriouslytricky argument to make. For example, philosophers often say that if aperson stays in his country and accepts the benefit of the laws then he hastacitly consented to be a member of that political society even if he was givenno vote as to its founding principles. However, this seems to belittle the idea ofconsent, which has such an important part in Rousseau's political theory.As Hume asked, 'Can we seriously say, that a poor peasant or artizan has a freechoice to leave his country, when he knows no foreign language or manners,and lives from day to day, by the small wages he acquires?' If so, he continued,then 'We may as well assert, that a man, by remaining in a vessel, freely con-sents to the dominion of the master; though he was carried on board whileasleep, and must leap into the ocean, and perish, the moment he leaves her'. 7

While this is a powerful argument against some theories of the social con-tract, it has little effect for Rousseau's because he was clear that the contracthe described was not intended to depict a historical or factual event. For thereasons I have discussed, the social pact functions as an ideal answer to thequestion concerning the terms under which abstract rational agents couldput bonds of obligation upon themselves. It functions as an ideal in light ofwhich one may better understand the nature and justification of existing insti-tutions, although none of them began in a contract of the kind he described.One may of course question how such an ideal theory of the social pact canhelp to understand the nature and justification of real political institutions.I believe that Rousseau's answer was similar to the one I discussed in Chapter1. 5 concerning how his hypothetical state of nature could explain the origin ofreal inequality.

Rousseau did not imagine that some time long ago people came togetherand arranged their political affairs along the lines described in The SocialContract. Rather, the contract shows the terms under which a political unionmight be voluntarily entered into instead of being imposed against the wishesand interests of its members. In this sense the social contract is an ideal forsociety in light of which one can judge existing institutions. His reader cancompare its terms to the ones that seem to be embodied in actual politicalarrangements and thereby learn something about the nature and justificationof those arrangements. To clarify this method Rousseau used an analogy tophysics. In explaining the path of a body in motion, a physicist might beginwith the idea of movement across a frictionless surface. As a matter of fact,


there may be no frictionless surfaces anywhere in the universe now or ever;even the idea of one may be contradictory. But the ideal of such a sur-face, even though it does not exist and perhaps could not exist, provides a kindof principle in light of which one may better understand what actually hap-pens. Similarly, the social contract functions as an ideal in light of which onemay understand the real.

Hume's other objections, however, are more difficult to resolve in the termsof Rousseau's theory. The second concerns the conditions under which the

social contract is made. He argued that all obligation comes from consent;but certainly he did not mean that people are obligated to everything they

consent to. The conditions under which they give their consent are also rel-evant because, presumably, people are not bound to their agreements in cases

involving force and fraud. To take a simple example, imagine that a personat the point of a gun agrees to give his wallet to a thief; if at that momentthe criminal faints, the victim would presumably be justified in keeping hiswallet and running away rather than waiting until the thief revives in order

to hand it over just because he had previously agreed to do so. Rousseau con-curred on this point, as for example in his depiction of the origin of law in the

'Second Discourse'. He said that it is a trick played by the rich on the poor,

which is no more legitimate because the poor foolishly agreed to it (D 173).This is also the basis of his argument against Aristotle on the question of

whether some people are slaves by nature. Rousseau claimed that even ifsome people do agree to remain slaves even when freedom is offered their

consent is not genuine because their prior, involuntary servitude has robbedthem of their power to make free and informed choices (S 43). Thus, Rousseaushould have stated the conditions that must exist for a social pact to bring realobligation with it.

But he did not do so clearly. The simple answer is to say that consent

brings obligation when it is offered under conditions that are free and fair,which is to say conditions that are not coerced. The social pact is binding, onthis reading, because the associates agree to it under conditions that arethemselves fair; yet if this is the answer that he intended to give, then histheory seems to be in trouble. The most important part of his account of

the state of nature in The Social Contract is that people have no natural

duties to each other, which is why all obligation is based on consent. But ifthere are no principles of obligation outside of the social pact, how can one

specify the fair conditions under which the pact should be made in order to

bring such obligation into existence? Without natural duty, it seems that

everything is equally fair in the state of nature because everyone has 'an

unlimited right to everything that tempts him'. If the social pact determineswhat is fair then it is impossible to say that it must be created under condi-

tions that are themselves fair.


In some passages he seemed to offer a solution to this objection; butit leads to the opposite problem. The solution is to say that the social pactdoes not create justice it only confers the authority to enforce natural prin-ciples of justice. Indeed, this is what he seemed to mean by saying, 'Whatis good and conformable to order is so by the nature of things and inde-pendently of human conventions. All justice comes from God, he aloneis its source... [but considering] things in human terms, the laws ofjustice arevain among men for want of natural sanctions' (S 66). This reading hasthe advantage of explaining what it means to say that the social contractmust be made under fair terms, because those terms would be the ones consist-ent with the natural principles ofjustice. But this raises the opposite problemfrom above.

If there are natural principles ofjustice then what does it mean for Rous-seau to say that in the state of nature I owe nothing to those I have promisednothing? Presumably I would owe them whatever the natural principles ofjustice require; otherwise they would not be principles ofjustice in the firstplace. In short, either principles ofjustice exist outside of the social pact orthey do not. If they do not, then how can Rousseau distinguish the kinds ofconsent that produce real obligations from those that do not? If they do, thenhow can he argue that there are no natural duties and that all obligationis founded on conventions? I am not sure that it is possible to resolve thisdilemma on the terms that he offered. He certainly leaned toward the sidewhich says that the social pact creates justice instead of merely enforcing it,as is required by his argument that a person owes nothing to those he has pro-mised nothing and by his claim in the 'Geneva Manuscript' that law precedesjustice. Yet, it seems he also sensed the difficulties raised by such a radicallyvoluntaristic theory. 10

Hume's third objection is related to this previous one and is no less powerfulfor being obvious. If all obligations are founded on covenants or promises,then why are the associates obligated to keep their promises in the first place?For example, in a political society of the kind Rousseau described the associ-ates would be required to respect each other's property. If someone raises thequestion of why she is obligated to do so, the answer would be that such respectis due by the terms of the social contract to which she had given her con-sent and promised to obey. But if she further asks why she should keep herpromises, there is a problem. If all obligations are based on promises thenthere is nothing outside of the pact in reference to which it is obligatory tokeep one's promise to obey the terms of the pact itself. Or, if there is somesuch thing, then promises are unnecessary as a foundation for duty, and thewhole social contract seems redundant. As Hume argued, 'Besides this, I say,you find yourself embarrassed, when it is asked, why we are bound to keep our word?


Nor can you give any answer, but what would, immediately, without anycircuit, have accounted for our obligation to allegiance'. l

I should mention one final objection to his theory of the social pact, onethat Hume did not discuss but which is exceptionally important in lightof much political philosophy today. Above I argued that the best way tounderstand the social contract is as an idealized agreement between abstractrational agents in a hypothetical circumstance called the state of nature.Its purpose is to reveal the principles that reasonable agents might use tocreate a political society by uniting themselves through mutual obligations.I argued further that the theory was intended as an abstract ideal in light ofwhich one might better understand the nature and justification of existingpolitical institutions; and I defended Rousseau in his general line of argumentby comparing his use of the state of nature and the social contract to a physi-cist's use of ideas such as a frictionless surface. Yet these last two cases are notexactly analogous; and this is the source of a problem.

The physicist's theory is purely descriptive and explanatory; it is designed todescribe and predict the paths of bodies in motion. This means that the ulti-mate test of an abstract notion such as a frictionless surface is whether it allowsone to predict the phenomena in questions in an accurate and wide-rangingway. Rousseau's theory is not quite like this because it is normative ratherthan descriptive; he intended to explain not what is the case but what shouldbe the case. In this light, it is not clear what can count as evidence for oragainst his theory, because it is precisely a theory of what is not so. In otherwords, one can certainly ask the question of whether the social agreement hedescribed is a rational and reasonable thing to do for people in the stipulatedcircumstances; but since those circumstances are hypothetical, their relevanceto existing people and institutions is not as clear as are the abstractionsemployed in the physical sciences, because they are intended to yield norm-ative conclusions not merely descriptive ones.

I am not certain that these last three objections can be answered in theterms that Rousseau's philosophy offered. In any case, to the extent that thisreading is correct, many of the problems have the same source in his philo-sophy, namely his effort to combine two doctrines that do not go easilytogether. He wished to argue both that people have no natural duties to oneanother and also that once political society is established they have obligationsto other citizens that go beyond mere prudence, or calculations of enlightenedself-interest. Each of these premises is enormously attractive taken by itself,which makes Rousseau's effort to combine them something of enduring philo-sophical interest. In fact, it may be that the only way to do so is by means of atheory like Rousseau's that bases obligation on covenants. Even if he failed tosolve the problem completely, his effort clarifies the nature of the case; and if


his theory stumbled at this point it is because he set for himself a philosophicalgoal of extraordinary importance and difficulty.

All of the characteristic features of Rousseau's political philosophy flowdirectly from his account of the social pact. There is to begin with his theory ofsovereignty and the concept of the general will. He argued that since the associ-ates to the social contract agree to subordinate themselves to the good of thecommunity, some instrument is necessary to determine what that good consistsin. This is the role that he assigned to the Sovereign, which is his somewhatmisleading term for the lawmaking body within political society. The purposeof the law is to declare what kinds of actions will be required or forbidden inorder to promote the well-being of the community, to which the citizens havepledged themselves (S 61). The job of the Sovereign is, 'the specification, byvarious particular laws, of the actions that contribute to this greatest good [ofall]' (S 160). To express the idea of the greatest good of all \le bien commun], heoften used the term 'general will', which stands in opposition to the 'particularwill' or the good of some person or group within the community (S 52-3, 57).He went on to argue that the Sovereign can be no one but the people them-selves, or the members of the social pact, as I will discuss in Chapter 4.

The concept of the general will is hard to pin down, raising as it does twovery difficult questions. Does it refer to something purely abstract such as 'thegood life', or to something concrete about the good of a particular communityin a particular time and place? And second, could an ideal observer at least inprinciple discover the general will independently of the judgment of the pol-itical community in question; or is the general will nothing other than theproperly qualified and aggregated judgment of that community? For nowit is unnecessary to resolve these issues, as long as the distinction between ageneral will and a particular one is clear. The general will is for the goodof the community while the particular will is for the good of a subgroup orindividual (S 57, 59). To use a simple example, say that an enemy army ismassing at the borders in preparation for an invasion. The good of the commu-nity, as an association of citizens persisting through time, includes self-preser-vation as its first principle, which at this moment requires that able-bodiedpersons go to the border to defend the homeland. This is the general will,which is also the will of the citizens to the extent that they are citizens. Yetthis is not necessarily what each person wants, because it may not be to theindividual person's benefit to go to the border. It is much safer to stay awayfrom the fighting, plus if the nation is overrun the draft-dodger might be ableto plead a better case to the invading power.

5


In this example, the person's particular will, which is to shirk his duty,may be at odds with the general will, which requires that he defend his coun-try. However, the particular will need not always deviate from the general

will even when the person involved is very selfish. If the particular will andgeneral will did not overlap on at least some occasions then society wouldnever come into being in the first place; 'for while the opposition of particular

interests made the establishment of societies necessary, it is the agreement ofthese same interests which made it possible' (S 57). Furthermore, people can

be taught to define their own good in terms of fulfilling their obligations to

others, which makes the contract stronger, and which Rousseau believed

should be the goal of public education (S 69).

While it may seem odd to say that a group of people can have a will that is

different from the will of some, or even all, of its members, the same idea is

implied in many kinds of collective action. A sports team, for example, may

have the general will of winning games, while a particular player might dobest for herself by sitting out even at the price of a victory. Perhaps at a cru-cial point in a game the team could use her service, yet she might have an

injury that will be aggravated by her participation, causing her great sufferinglater in life. Business corporations offer many similar examples. The business

might be organized with the general will of making profits, while a particular

employee's good might be served by spending time with his family rather than

working long hours to make the business more lucrative for its owners. In both

cases, the group is nothing but the individuals who make it up, yet it can have a

conventional, collective will that is different from their wills taken as indi-

viduals. This was Rousseau's point in distinguishing between the general willand the'will of all' (S60).

In addition to sovereignty, law, and the general will, a fourth importantidea is that of the Prince, which is another of Rousseau's slightly misleadingterms. The Prince is his name for the executive branch of the political author-ity, which enacts the laws passed by the legislature (S 82~6). These two offices,the Sovereign and the Prince, are the most important parts of the institutionalstructure that he described. He argued that they are necessary elements of

any well-ordered society and that they define the character of the political life

that people live within the social pact. The nature of each is easy enough to

understand; yet their relationship to each other raises interesting paradoxes

in his theory of government.

The last element I will mention in his theory of the state is the Lawgiver

(S 68). Rousseau argued that the social pact requires that the people who

enter it have a certain kind of character if the pact is to succeed. They must

have at least some minimal feelings of patriotism, cooperativeness, and pub-lic spirit. Yet, they cannot get these qualities from the political society itselfbecause they are necessary conditions for such a society to come into being in


the first place. Thus there must be something outside of, and prior to, the socialpact that forms its members into potential citizens; Rousseau's name for thisentity is the Lawgiver. The most important thing to realize for now is that, onhis theory, the Lawgiver does not actually make the law, a fact that can besomewhat confusing. In his technical usage, the term law refers only to thedecisions of the Sovereign regarding the actions that will be compelled orforbidden in the name of the common good. Conversely, the Lawgiver estab-lishes the conditions of political society but has no authority to pass lawswithin that society; he said, 'This office which gives the republic its constitu-tion has no place in its constitution' (S 69).

In any case, the terms of the social pact and the system of institutions thatfollow from it provide the context for understanding Rousseau's theory offreedom. I mentioned at the beginning his view that a political society shouldoffer its citizens three kinds of freedom: civil freedom, democratic freedom,and moral freedom. The nature and scope of each as well as their relation-ships to each other and their relative importance are defined by the social pact.The most important thing to remember before turning to the theory of free-dom is that the motivation of the associates to enter the contract is the preser-vation of themselves and of their possessions. They do not enter it in order tobecome free, except in the equivocal sense in which people speak of freedomfrom fear. Nonetheless, their freedom is a direct consequence of the terms ofthe contract.

Notes

1. The classic formulation is, W. G. Runciman and Amartya Sen, 'Games, justice,and the general will', Mind, vol. 74 no. 296 (October 1965) 554-62. For a recentversion see, Skyrms, Stag Hunt, 1-13.

2. Although I have used both male and female pronouns when discussing Rous-seau's political philosophy, the place of gender differences in his theory of thesocial pact is a vexed issue. For a survey see, Elizabeth Rose Wingrove, Rousseau'sRepublican Romance (Princeton: Princeton University Press, 2000), 'Introduction'.For its implications regarding his theory of freedom see, Ursula Vogel, ' "But ina republic, men are needed": guarding the boundaries of liberty', Rousseau andLiberty, ed. Robert Wokler (Manchester: Manchester University Press, 1995),

213-30.3. Hall, 44f.4. Hall, 49.5. Unfortunately, the best attempt to demonstrate the coherence of Rousseau's

work skates over the issue: Melzer, Natural Goodness, 184.6. David Hume, 'Of the original contract', Essays: Moral, Political, and Literary

(Indianapolis: Liberty Fund, 1985), 465-87.


7. Hume, Essays, 475.8. For more on this point see, Roger D. Masters, 'The structure of Rousseau's

political thought', Hobbes and Rousseau: A Collection of Critical Essays, ed. MauriceCranston and Richard S. Peters, Modern Studies in Philosophy (Garden City:Anchor Books, 1972), 401-36.

9. See also Gourevitch's helpful note (S 299).10. For an interesting criticism of Rousseau along these lines see, John Charvet,

'Rousseau, the problem of sovereignty, and the limits of political obligation',Rousseau and Liberty, 139~51.

11. Hume, Essays, 481.12. This is also Ronald Dworkin's famous criticism of John Rawls, in Taking Rights

Seriously (Cambridge, Mass: Harvard University Press, 1977), Chapter 6. ForRawls's response see, Justice as Fairness: A Restatement (Cambridge, Mass: HarvardUniversity Press, 2001), 17-18. For an attempt to defend Rawls and by extensionRousseau see, Samuel Freeman 'Reason and agreement in social contract views',Philosophy and Public Affairs, vol. 19 no. 2 (Spring 1990), 122-57.

13. For an overview of the issue see, Gopal Sreenivasan, 'What is the general will?',The Philosophical Review, vol. 109 no 4 (October 2000), 545-81.

14. For a summary of his theory of the executive part of the state see, Bertrandde Jouvenal, 'Rousseau's theory of the forms of government', Hobbes andRousseau, 484-97. For his theory of checks and balances between the Sovereignand the Prince see, Mads Qyortrup, The Political Philosophy of Jean-Jacques Rous-seau: The Impossibility of Reason (Manchester: Manchester University Press,2003), Chapter 3, 'Checks, balances, and popular participation: Rousseau as aconstitutionalist', 48-73. For the difficulties that this theory gets Rousseauinto see my article, 'A paradox of sovereignty in the Social Contract1, Journal ofMoral Philosophy, vol. 3 no. 1 (April 2006).

Chapter 3

Civil freedom

1

The foregoing account of political society provides the context for understand-ing Rousseau's theory of freedom, to which I will now turn. He argued thata political system founded on the social contract would offer its citizens anumber of different kinds of freedom. The easiest of them to understand iswhat he called 'civil freedom', which I will sometimes refer to by the morecommon terms 'civil liberty' and 'civil rights'. Although this is the easiestkind of freedom to grasp, it bears on two independent and complicated aspectsof his general philosophy, namely his theory of rights and his theory of freewill,both of which I will discuss in some detail. To make his account of civil libertyclear it will be useful to compare it to the freedom that he said exists in thestate of nature, the latter of which he referred to by the term 'natural freedom'.Civil liberty and natural freedom are similar in that he defined both as theabsence of external constraint; yet the kind of constraint in question andthe reasons for its absence are different.

The basic idea of natural freedom should be clear based on what hascome so far. Since Rousseau denied that people owe any natural obligationsto one another, natural freedom was his term for the prerogative of eachperson in the state of nature to do whatever he or she wishes and can getaway with. Rousseau denned it as 'an unlimited right to everything thattempts him and he can reach. . . which has no other bounds than the indi-vidual's force' (S 54). In this sense the term natural freedom refers to theabsence of duties that might limit what a person can or should do in the stateof nature. To some readers, natural freedom might appear to be somethingworth having because the absence of obligation opens up certain vistas onwhat kind of life is possible; certainly this freedom from obligation wouldcreate room for living the life of one's choosing unconstrained by claims fromother people on one's own time, energy, and resources. This person mightquestion whether the sacrifices required by political society are worthwhilegiven its implication that people submit themselves to the common good ofthe community. 1

Rousseau argued that the exchange of natural freedom for artificial duty isgenerally worth it. The reason is that while natural freedom is absolute, the

Civilfreedom 49

opportunity to exercise it is limited. Where everyone is free to do anything, no

one will be able to do much. Each person's actions, although unconstrained by

obligation, are constrained by other people's actions. He argued that, particu-larly in view of scarcity and vanity in the state of nature, people would becontinually harassed by their equals and subdued by their superiors, the diffi-culties of which are the motivation for entering the social pact. Here again,

property provided him a convenient example. In the absence of obligations,the only limit to one's right of acquisition is one's power of acquiring, which

means that a person who was particularly greedy, industrious, and lucky

would face no permanent obstacle in pursuing his dreams of avarice. How-

ever, as soon as someone more powerful came along to take his things, then

what belonged to one would then belong to the other by the same right and

to the same degree. Consequently, the term property in the state of naturerefers merely to the things one can protect from the encroachments of others.

Although his account of natural freedom is fairly clear, it raises a problem

with respect to his theory of rights. For, on a number of occasions in The

Social Contract he referred to the individual freedom and property that existin the state of nature as 'rights'; for example, he defined natural freedom as

the 'unlimited right to everything' and then he argued that in the state of

nature every person has a 'right to everything he needs' including a right to

property (S 54). Furthermore, he referred to such natural rights in other

works, including the article on 'Political Economy', the fragment on the'State of War', and his 'Second Discourse', the last of which is especially sig-

nificant because of his claim that it is part of the same philosophical system asThe Social Contract.

This is a problem because Rousseau seems to have believed two things thatdo not go together: that people have no natural obligations to one another andthat they also possess certain natural rights. This appears absurd because ifone person has a right to something then presumably other people have aduty to respect it, otherwise it would not be a right in the first place. But ifthese others do have such a duty, then Rousseau contradicted himself whenearlier he said that there are no such natural obligations. This issue is very sig-

nificant. On his own admission, the reason he thought of politics in terms of a

social pact was that he believed people have no natural duties toward one

another, which meant that covenants are the only source of obligation. If it

turns out that people do have natural rights, and therefore have natural

duties as well, then the meaning and even the necessity of the social contractare questionable.

Perhaps an example will help to clarify the relationship between rights and

duties in this case. If a person is driving in traffic and the light in front of herturns green, she is said to have a 'right of way', meaning that she can make a

claim to the road surface that other people are obligated to respect. If no such


obligation existed, meaning that anyone else could try to use the road too,even though her light was green, then she presumably would not have a rightof way in any significant sense of the word. Now, it is true that the concept ofrights was one of the most contested ideas in the political thought of the seven-teenth and eighteenth centuries, which means that one should not assume toomuch about what any particular thinker meant by the term; specifically, thereis great room for debate about the relative priority of rights and duties. For allthis variety, however, I cannot see what it would mean to say that a person hascertain rights but that other people have no obligation to respect them. Yet,this seems to be the view that Rousseau advocated, according to which, forexample, people have a meaningful natural right to property but have no nat-ural duty to respect each other in their property.

There are at least four possible interpretations of the problem. Rousseaumay have attached a completely different meaning to the word right thanthat of a moral claim; he may have used the word to mean a moral claim butthen presented a new theory of rights according to which it is possible to havemoral claims without correlative obligations; he may have contradicted him-self; or he may have misspoken. While there may be no strictly textual way todetermine what he meant in these passages, there are reasons to prefer thefourth option. If the first is correct then I do not know what he meant becausehe normally used the idea of rights to refer to moral claims; the second inter-pretation seems far-fetched and there is nothing in his philosophy to support orfill out such a theory; and the third seems unlikely only because the contradic-tion is so obvious that it is difficult to imagine Rousseau missing it. Thus Ithink the most reasonable thing is to conclude that he did not quite meanwhat he wrote. However, once the reader is thus decoupled from what thebook actually says, it is not clear what counts as evidence for one interpreta-tion rather than another. The problem is particularly acute here because, if itis true that he misspoke, the question remains about which passage is the mis-take and which is the real theory. Did he misspeak when he defended naturalrights or when he denied natural obligations?

This is one of the most difficult interpretive questions in The Social Contract.The direct textual evidence supports both sides, so a reader cannot select onepassage as definitive without begging the question. Rousseau unquestionablysaid that all rights come from conventions (S 41) and that people owe nothingto those whom they have promised nothing (S 66); yet he also said that eachperson in the state of nature has a right to everything he needs and that firstoccupation confers a natural right to property (S 50, 54). To add to this con-fusion, he gave a further alternative in his 'Second Discourse', which arguedthat property is not a natural right, but that life and liberty are (D 179).The only way to decide the question is to look at the general tendency of the

Civil freedom 51

argument in The Social Contract. Despite the few passages mentioned above, the

basic gist of the work is to argue that people have no natural obligations toone another (S 66), that all duties derive from covenants (S 41), that there is

only one covenant that can bring political society into existence (S 50), andthat it is the source of all duty and all rightful authority (S 44, 56). The onlyway to find a serious theory of natural rights in the book would be to prefer a

very small number of offhand remarks to the explicit thesis and argument ofthe work.

Furthermore, one can readily guess what might have caused Rousseau tofall into an equivocation in this case. While this is only speculation, it might

help to explain how a writer as careful as Rousseau could have come to say

something slightly different than what he meant. The most direct way to get

to it is to see that, within his general philosophy, rights have a clear place; they

are the legitimate claims that people in political society can make against each

other and the community, based on the terms of the social pact (S 54). In this

sense, a right is a legitimate claim, or to put it negatively one could say that a

citizen has a right to whatever does not violate her obligations to others. While

this is a convoluted way of speaking, it helps explain what Rousseau mighthave meant by saying that rights exist in the state of nature. If a right is a

claim that does not violate one's obligations to others, then all the claims that

people in the state of nature make against one another are rightful because no

one owes anyone anything. In other words, each person in the state of naturehas a right to everything in the sense that there are no obligations that would

limit one's claims to other people's bodies or possessions.Although this interpretation is just a guess, it would explain how Rousseau

came to refer to natural rights; they are a way of speaking about the absence ofduties that might limit one's options in the state of nature. In fact, this 'unlim-ited right' is almost the only natural right that he mentioned, which suggeststhat he did not use the term in the strict sense that he employed with referenceto political society. It is interesting and odd to see how he struggled with theissue particularly in the case of property rights; he said that, in the state ofnature, first occupation creates more of a right to property than does mereforce but that neither of these is 'a true right' compared to that created by the

social pact (S 54). For myself, I cannot see the philosophical purpose served by

this kind of grading of rights from least to most real when the primary direc-

tion of the argument is to deny natural rights in the first place. He argued that

the so-called rights of people in the state of nature are another way of referring

to the absence of obligations to others, which is to say that natural rights are

another way of referring to natural freedom. This is the inverse of what it

means in political society, where rights derive from the duties that one personbears to another based on the terms of the social pact.


2

As I suggested above, civil freedom is best understood in comparison to

natural freedom, which refers to the absence in the state of nature of obliga-

tions that might prevent one from achieving one's ends. After the social pact

is created, this kind of freedom obviously disappears because the nature ofthe pact is such that it brings bonds of mutual obligation upon the associ-

ates and thereby imposes considerable limits on their options. However, some-thing akin to natural freedom still exists in political society. For, on Rousseau's

theory, the associates create these mutual obligations by pledging themselves

to the good of the community, which is defined by the Sovereign through

the framing of laws. Yet by the nature of the case the laws will be silent in

most or many aspects of life; so, what are the associates supposed to do then?

Rousseau's answer was that they should be free to do whatever they please

and should be protected in that freedom, which is to say that civil liberty

refers to the absence of impediments to pursuing one's ends in cases where thelaw is silent.

This may seem to be a weak kind of liberty. After all, the terms of the pact

require the associates to forfeit all of their powers and freedoms to the com-munity, which implies that at the end of the day the law can require any-thing of anyone. Therefore, perhaps it is disingenuous to say that one's civil

liberty consists in the right to do what one wishes in those cases where the

Sovereign has not yet demanded that one do something else. I believe, how-ever, that Rousseau's theory of civil liberty was more vigorous than suggestedby this appraisal. It is true that, on his theory, the Sovereign finally decideswho can do what among the citizens and that the citizens must obey; thisis what it means to have a Sovereign in the first place. Yet his theory of sover-

eignty contained significant qualifications that allow for a fairly robust kindof civil liberty.

To see why this kind of freedom is more substantial than it might firstappear, one must notice how it follows from the stipulations of the social

pact. Rousseau argued that in order to create a political society the associates

must surrender all of their goods and powers to the community under the

direction of the common benefit. However, as I discussed in Chapter 2. 3,

after the associates make this surrender they receive back whatever is not

required by the general will because no one else has any powers by which he

could make claims on the others. While this does imply a certain sacrifice onthe part of the associates, they hold the things that remain to them in greatersecurity because these things are protected by the whole community. Thissecurity brings with it a meaningful kind of freedom because if people areguaranteed by law the possession of their own person and goods, they will

have more room for creating the kind of life they wish to have. He said that

Civilfreedom 53

'they have only made an advantageous exchange of an uncertain and precar-ious way of being in favor of a more secure and better one, of natural independ-ence in favor of freedom, of the power to harm others in favor of their own

security, and of their force which others could overwhelm in favor of rightmade invincible by the social union' (S 63).

This kind of security is significant for civil liberty. The first and obviouspoint is that the social contract protects each associate from dangers out-

side the pact; what may be less obvious is that it also protects the associates

from each other. Because each party gives up everything to the common good,which consists primarily in the preservation of the members of the com-

munity, the Sovereign would necessarily make illegal all harm of one personby another. For example, among the things that other people must sacrifice

as a condition of entering the pact is the power to kill and assault and steal

from others, a power which they had in the state of nature but which isobviously incompatible with the common good. Thus, the social pact creates

the space for people to be left alone, at least as long as the use they make of thatfreedom is compatible with the like freedom of others. Because the citizens

give up the power to do those things that are inconsistent with the common

good, they lose their natural freedom but gain the freedoms that come from

being protected against harm both from outsiders and from one's fellow cit-

izens. Rousseau said, 'In the Republic, says M. d'Afrgenson] everyone is perfectly

free with respect to what does not harm others. That is the invariable boundary, itcannot be drawn more accurately' (S 150, note).

This argument does not answer all objections, however. For while Rous-seau's defence of civil liberty is very strong on one side it seems weak on the

other. Its strength is that it shows how individual rights would be protectedboth from outside dangers and from the members of one's own society. But,on the other hand, it seems to offer no protection against the governmentitself. Because each associate forfeited everything to the community, there isnothing that the government cannot demand of its citizens, including theirlife, liberty, and property. In truth, however, things are not as dire at theylook because Rousseau's theory offered considerable protection of civil libertyeven against the state. First, he argued that while the state can demand any-

thing of anyone it cannot do so for any reason. The associates who enter the

pact submit themselves to the general will not to a specific politician or polit-

ical party; it is only in the name of the common good that the Sovereign can

make a claim on the persons and property of its subjects. In other words, the

state cannot put any limits on the civil liberties of its members beyond what is

strictly required by the good of the community. 'All the services a Citizen can

render a State, he owes to it as soon as the Sovereign requires them; but theSovereign, for its part, cannot burden its subjects with any shackles that are

useless to the community; it cannot even will to do so' (S 61); he also said


that, 'The right which the social pact gives the Sovereign over the subjectsdoes not, as I have said, exceed the bounds of public utility' (S 150). Thisdoes mean, of course, that when the common good requires something of a

citizen, that person cannot appeal to independent rights against the commu-nity as a whole in order to preserve his or her freedom. Yet, Rousseau argued

that a political society can limit the rights of its members only when the good ofthe whole makes it necessary.

Even this, however, might not be enough for readers who are committed to

defending civil liberty. After all, while it is true that the state can limit people'sfreedom only for the sake of the common good, the state also decides what

the common good is. Rousseau was uncompromising on this point, even in the

case when the state decides that a person must perish for the sake of the com-

munity. 'Whoever wants to preserve his life at the expense of others ought alsoto give it up for them when necessary... and when the Prince has said to him,

it is expedient to the state that you die, he ought to die; since it is only on this

condition that he has lived in security until then' (S 64). The problem, it

seems, is that since the state's power is limited only by the common good, and

the state decides what that good is, the protection of civil liberty is insubstan-

tial. While this insight is important, it requires a number of qualifications.One reason that the issue seems worrisome is that everyone is familiar

with actual governments that have imposed unnecessary limits on the civilliberty of their citizens in the name of a sham public good. Readers aretherefore justifiably suspicious of Rousseau's theory on which the state itselfdecides the limits of the state's rightful power. One must remember how-ever that he intended the theory to describe an ideal association of abstractrational beings who unite under equal terms for the purpose of mutual self-preservation. In these circumstances, the submission of each associate to thegood of the community would leave considerable room for people to do asthey pleased as long as they refrained from harming one another. One maywish to respond, of course, that if politicians always did what they should,

then such a theory would be fine; but real people are not ideal rationalagents. Those who have power tend to use it to their own advantage, which

means that a real government constructed on these lines would probably try

to limit civil liberty beyond what the good of the community requires. This

is a significant point, yet it is one that Rousseau himself acknowledged.

For reasons I will discuss below he was less concerned that the laws them-selves would become oppressive and more concerned that the executivebranch would begin to limit the citizens' freedom for its own advantage.

He said that, 'it must sooner or later come to pass that the Prince ends up

oppressing the Sovereign and breaking the Social treaty. This is the inherentand inevitable vice which relentlessly tends to destroy the body politic fromthe moment of its birth' (S 106). In any case, it is not much of a criticism to

Civilfreedom 55

say that if the political leaders in his system became corrupt then they might

infringe on people's civil liberties. This is presumably true of all politicalsystems. The criticism would be just only if something in his philosophy made

it especially prone to degenerating into tyranny. For myself, I can see nothinglike that. He proposed to take 'men as they are, and the laws as they can be'(S 41), and from this basis to discover what kind of political system wouldbe worthy of the allegiance of rational beings. It turns out that this system

would protect the individual liberty of its members from all infringements

except those required by the good of the community. It is true that he deniedthe existence of natural rights and therefore rejected the theories of civil libertybuilt on that foundation. But if he is correct that they do not exist, then it is

hardly a weakness of his philosophy to have pointed this out and thought

through the consequences.

Furthermore, Rousseau's theory of political power offered two additionalchecks to the Sovereign's ability to interfere with the civil freedom of its

citizens. In the passage I quoted above, Rousseau said that when the staterequires a citizen to die then he or she should die. While he is correct that this

follows from his theory, his way of putting it might be misleading. The passage

makes it sound as though the Sovereign can at any moment order the death ofsome of its citizens or otherwise harm them with respect to their persons and

property. This is not the case because Rousseau argued that the law must be

perfectly general, meaning that it must apply to all citizens in an equitable

way because they are all equal members of the social pact. He said, '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 oneof those who make it up' (S 63). This theory does leave some discretionarypower for the Prince, or the executive body in the state; yet his general pointstill holds. He argued that when the Sovereign declares which freedoms theassociates must give up for the common benefit, it can do so only through gen-eral rules that respect the equality of all the associates. This provides anobvious protection for the civil liberty of individual citizens. What is more,

Rousseau argued that the Sovereign legislature must have a certain formthat also helps to preserve civil liberty; he said that it must be a democracy.

His argument for democracy is difficult and is the topic of the next chapter;

however, the conclusion is simple enough. A state cannot pass a law until it

'has been submitted to the free suffrage of the people' (S 70).This implies that there are two separate constraints on the power of the

Sovereign to interfere with the liberty of its subjects. The laws must be applied

to all people equally and they must be voted on by everyone. While by them-selves these limits do something to protect liberty, the more important point ishow they work together. Since the laws must be ratified by the people as a


whole, and since they must be perfectly general, there is no point in makingthem overly burdensome because the associates would thereby only burdenthemselves. The two constraints on the power of the Sovereign serve to protectthe civil liberties of the citizens by limiting the kind of demands the govern-ment can make and the circumstances under which it can make them.

Finally, all of the classic utilitarian arguments for individual freedom wouldstill apply in the system Rousseau described. Many philosophers have arguedthat civil liberty is important because it furthers the pursuit of truth abouthow to live well and be happy. On this argument, freedoms regarding speech,conscience, and lifestyle are important because they advance a society'swell-being or the permanent interests of humanity. If this argument is true,then the Sovereign that Rousseau described, whose job it is to promote thecommon good, would necessarily allow for those liberties. Indeed, Rousseau'sargument provided a stronger defence of civil liberties than do those politicalphilosophies that are based solely on the goal of promoting aggregate humanhappiness. One of the famous objections to these theories is that if the aggre-gate happiness of the community is the highest law, it might condone rob-bing individuals or minorities of their rights. Perhaps, to use a variation on oneof Will Kymlica's examples, the overall happiness of the Roman people wasmaximized by watching games at the Coliseum in which innocent peoplewere 'torn to shreds by wild animals in front of 50, 000 wildly cheering specta-tors'. 5 While this violation of an individual's rights might create the greatestoverall happiness, it could not be justified on the system Rousseau describedbecause the Sovereign can only pursue the preservation of the citizens and itcan do so only through laws that apply equally to all, which means that it isimpossible to discriminate against a minority.

These different tendencies in his theory of individual liberty come out mostclearly in his discussion of religion, which was one cause of the great persecu-tion against him following the publication of The Social Contract. His views wereexactly what one would expect from what has come so far; he combined anextraordinary respect for individual conscience with an equal commitmentto the common good. 'Subjects therefore only owe the Sovereign an accountof their opinions in so far as those opinions matter to the community. Now itcertainly matters to the State that each Citizen has a religion which makes himlove his duties; but the dogmas of this Religion are only of concern to the Stateor its members in so far as the dogmas bear on morality' (S 150). In otherwords, people should be free to believe anything they want as long as whatthey believe does not harm the community.

3

Civilfreedo m 57

The interesting thing about Rousseau's theory is that he put equal emphasison both stipulations. He argued that because people are generally selfish, there

must be some kind of broad civil profession of faith with tenets stating that aprovidential God exists and that in the next life the good will be rewarded andthe evil punished; and furthermore, he said that 'the Sovereign may banishfrom the state anyone who does not believe them' (S 150). Yet he also argued

that, 'Beyond this everyone may hold whatever opinion he pleases, without itsbeing up to the Sovereign to know t h e m . . . whatever the subjects' fate may

be in the time to come is none of its business, provided they are good citizensin this life' (S 150). He went on to say, 'Now that there no longer is and nolonger can be an exclusive national Religion, one must tolerate all thosewhich tolerate others in so far as their dogmas contain nothing contrary to

the duties of the Citizen' (S 151). While Rousseau seems to be walking a fineline in these passages, his account of civil religion follows directly from his

theory of civil liberty.

His defence of a mandatory profession of faith suggests to many scholarstoday that Rousseau was not serious about civil liberty. While this is some-

thing that readers must decide for themselves, one should at least understandRousseau's meaning and motivation. He believed that the preservation ofsociety is the condition for having any rights at all; thus one cannot meaning-

fully have a right to something that tends toward the destruction of society.Because certain beliefs are destructive in this way, the state may do what it

can to prevent them or at least to prevent their spread. This may or may not

seem acceptable, yet a couple of considerations are worth bearing in mind.

The first is that every defence of individual liberty eventually bumps into the

question of how to deal with beliefs and behaviours that are destructive of thatsame liberty. Even John Locke, who is usually considered to be a more ardentdefender of individual liberty than Rousseau, argued that religious tolerationcould not be extended to Catholics and atheists, for example, because theirbeliefs are destructive of the political system that guarantees individual libertyin the first place. Rousseau said nothing more than this.

Furthermore, Rousseau might simply have been wrong about what beliefsare necessary for the preservation of society, in which case his principles would

offer no grounds for the kind of persecution in question. In the case of atheism,

his argument was quite clear. He believed that the weakness of the human willis such that people who do not fear punishment and hope for reward in the

afterlife are unlikely to perform their civic responsibilities in this one; thus

atheism is destructive of political society and need not be tolerated. His argu-

ment against extending toleration to Catholics followed these same lines but

was a little more complicated because it fell into two parts. The first was thatsince Catholics believe that the Pope is literally Christ's vicar on earth, theycan never be citizens of any state except the one ruled by the Pope himself


because sovereignty cannot be divided. He said that Roman Catholicism is areligion which, 'by giving men two legislators, two chiefs, two fatherlands,subjects them to contradictory duties and prevents their being at once devout

and Citizens' (S 146—7). His second argument against tolerating Catholi-cism was that since the state must protect civil liberties it cannot toleratereligions that are themselves intolerant of other creeds. In particular, peoplewho believe that their church is the only means to salvation are dangerous to

society because 'it is impossible to live in peace with people one believes to bedamned' (S 151). For this reason, 'whoever dares to say, no Salvation outside the

Church, has to be driven out of the State; unless the State is the Church, and thePrince the Pontiff. Such a dogma is good only in Theocratic Government, in

any other it is pernicious' (S 151).

The important thing to realize, as I said, is that Rousseau may have beenwrong about what beliefs are necessary to preserve society. In the case of

atheism, the question of whether a society of atheists is possible was one of theclassic questions of Enlightenment political philosophy. It has perhaps neverbeen answered definitively on either side. The question of Catholicism is more

difficult to interpret today because, as I understand it, there is some divisionwithin the church about the precise authority of the Pope and the possibility of

salvation outside the church. Yet at least one point is obvious. Rousseau cer-

tainly went too far in saying that one cannot live in peace with those whom one

believes to be damned. His reasoning was that, 'to love them would be to hate

God who punishes them; one must absolutely bring them back [to the fold] ortorment them' (S 151). This ignores two obvious points; there is a traditionalCatholic view according to which one can hate the sin but love the sinnernonetheless, and in any case there are other ways to save souls in the next lifebesides tormenting them. This latter point raises the tricky question of how theright to proselytize fits in with the right to other kinds of expression; yet thebasic insight remains. Rousseau may have been wrong about what beliefs pre-serve society; and if he was wrong about atheists and Catholics then nothing in

his philosophy would justify their persecution, indeed their views would be

protected under the same principles that protect all other kinds of individ-

ual freedom. One must bear these considerations in mind to make a correct

evaluation of his theory of civil liberty.

4

Because Rousseau's theory of civil liberty is exceptionally rich and nuanced,however, some scholars go to the other extreme and interpret The Social Con-tract as if it were concerned primarily with individual freedom. I believe this isalso a mistake. In the only other full-length study in English of Rousseau's

Civilfreedom 59

theory of freedom, Daniel Cullen argues that Rousseau's doctrine of civil lib-erty 'underscores his abiding concern for negative freedom, for the avoidanceof subjugation to alien rule', from which he develops a fairly liberal interpreta-tion of The Social Contract® The idea of negative freedom that is the basis of thisinterpretation comes from Isaiah Berlin's famous essay 'Two Concepts of Lib-erty', which distinguishes between negative and positive freedom. Negativefreedom concerns the question of'how much am I governed', while positivefreedom concerns the question 'by whom am I governed'. While Berlin himselfsomewhat equivocal about the nature of positive freedom, his theory of nega-tive freedom is easy enough to understand and is at the heart of the liberalreading of Rousseau.

To have negative liberty is to have options, it is to have the ability to choosefor oneself the basic contours of one's life without excessive coercion by thestate or society. Berlin says that 'I am normally said to be free to the degreethat no man or body of men interferes with my activity. Political liberty inthis sense is simply the area within which a man can act unobstructed byothers'. 9 This freedom is negative in the sense that one has room to do whatone wants, particularly regarding basic liberties like expression, conscience,and movement. For decades Rousseau was interpreted by Berlin and othersas one of the enemies of negative liberty; lately however he is increasinglygiven interpretations like that of Cullen according to which he was primarilyinterested in preserving a sphere of negative freedom within which people cancreate lives of their own choosing.

Yet one wonders how abiding was Rousseau's concern for negative freedomgiven that it had a comparatively small part in the political philosophy of The

Social Contract. I argued above that the system he defended would have signific-ant room for such civil liberties; yet the existence of these liberties is neither theassociates' reason for entering the pact nor what makes the pact binding onits members. While the social contract creates a domain of negative freedom, itis strictly limited by the needs of the community, against which the individualcitizen has no appeal. Furthermore, he spent very little time discussing civilliberty compared to the other topics of the work. In fact, the most signific-ant evidence for Cullen's position is found not in The Social Contract itself butin his Confessions. There, he described his own life as a long effort to find neg-ative freedom. From his time as a ten-year-old boy studying with his cousin inBossey, he described his 'dislike for compulsion' (C 25). By the time he was ayoung man living in France with Madame de Warens, this condition haddeveloped into a 'mortal aversion to any sort of compulsion', which he carriedwith him for the rest of his life (C 115).

His desire to avoid any restraint on his freedom was so great that he rejectedoffers of patronage from his friends as well as from the King of France becausehe felt that their generosity would make him excessively obliged to do the


bidding of others. Thus what he said about his own personality suggests thatnegative freedom ought to have had an important part in his political theory.But this suggestion is not fully borne out by The Social Contract. The forms ofnegative freedom found there are neither the only nor the most importantforms of freedom that political society creates. The social pact does preventother individuals from determining one's actions, but it does so only by lettingthe community as a whole determine them, within the limits discussed above.Nothing is gained by making Rousseau appear either less or more concernedwith civil liberty than he actually was.

At this point, however, a further distinction is crucial. The civil liberty thatthe social pact brings into being does not imply a perfect equality among thecitizens. While it is true that the terms of the pact make it impossible for oneperson or group to be put at a disadvantage, they also make more rigid certainother kinds of inequality. This tension is one of the things that makes Rous-seau's philosophy difficult to understand. On the one hand, the commitmentto equality is the foundation of the contract. He says that, 'the fundamentalpact, rather than destroying natural equality, on the contrary substitutes amoral and legitimate equality for whatever physical inequality nature mayhave placed between men, and that while they may be unequal in force orgenius, they all become equal by convention and by right' (S 56). This is tosay the associates are equal before the law, meaning that they are all partyto the common good and that the dictates of the Sovereign give the same rightsand responsibilities to each.

However, because the law cannot discriminate or be partial, it must permitand protect other inequalities. It seems for example that if one associate hasunusually vigorous strength or great wealth then, when the pact is enacted,that strength and wealth revert back to this individual, on the condition thatthe person does not use it in a way that compromises the good of the whole.This is what Rousseau meant by saying that the associates to the pact getback what they put in. Any effort to penalize these persons for whom they areor what they have, even in the name of equality, would be an act of inequalityor partiality that could not be an act of sovereignty. Regarding the meaning ofequality he said that it, 'must not be understood to mean that degrees of powerand wealth should be absolutely the same, but that, as for power, it should stopshort of all violence and never be exercised except by virtue of rank and thelaw, 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 (S 78).

Nowhere did Rousseau suggest that in political society the differencesbetween rich and poor or lucky and unlucky dissolve. There is still employerand employed, magistrate and citizen. The civil liberty and equality thatthe pact implies do not mean that the hierarchies of everyday life disappear.He even argued that the Sovereign could create different classes of citizens,

Civil freedom 61

with different rights and responsibilities, as long as it did not attempt to assignparticular individuals to their classes (S 67). More importantly, the conditionthat the social pact brings about is in a sense the opposite of the natural libertydescribed above. Because the social pact stipulates that each gives everythingto all, the condition that it produces is not one of independence, but one ofabsolute dependence; the associates bind themselves without reservation tothe common benefit. Dependence in the state of nature is a matter of fact; incivil society it is a matter of right.

A further important aspect of Rousseau's theory of civil liberty is his accountof freewill. For the nature of the liberty that people possess by virtue ofbeing left alone by the government depends somewhat on what one thinksabout the freedom of the will. In The Social Contract he said almost nothingabout the issue except the deflating comment that 'the philosophical mean-ing of the wordfreedom is not my subject here' (S 54). In the 'Second Discourse'and Emile he was more expansive; even there, however, he did not offer afull theory of the will as much as he gave arguments for rejecting determinism.The fact that he took the side he did is itself significant, yet. Rousseauwas a careful student of botany and the animal world, as part of which heoften gave apparently deterministic explanations of living organisms includ-ing human beings. His frequent use of such assumptions and principles incrucial arguments seems to contradict his theory of the freedom of the willin the 'Second Discourse'. While I think there is a coherent theory amongthese works, it has the shortcoming of not actually solving the problemof freewill.

The first although less profound side of his interest in determinism was hisview that living bodies, both vegetable and animal, are machines. He statedhis view clearly in the 'Second Discourse', where he wrote, T see in any animalnothing but an ingenious machine to which nature has given senses in orderto wind itself up [remonter] and, to a point, protect itself against everythingthat tends to destroy or to disturb it' (D 140). Furthermore, throughout hisConfessions, Rousseau described his chronic health problems as defects in 'my

poor shattered machine'. While it would be easy to multiply such passages,they do not by themselves contradict his belief in freedom of the will. Forwhile there is some difficulty in arguing both that the body is a regular partof nature's causal chain and that human beings have freewill, the difficultyis not unique to Rousseau's thought and many philosophers have tried toprovide answers to it. The problem in Rousseau is internal to his own psycho-logical theory.

5


The perplexing side to his theory of freewill is its relationship to his 'sensa-tionalism', or the idea that human thoughts and emotions are formed by prior

sensory experience. This school of psychology was extremely influentialamong Rousseau's contemporaries and appeared throughout his own work.Yet it seems to contradict his theory of freewill because if one's life as a con-

scious being is as much a part of a causal chain as one's life as a physical being

then freedom seems to have no place. Unfortunately, his most important pro-ject on this topic was one that he never completed and the manuscript of which

he believed to have been lost, the result of which is that his views are hard topiece together. The tentative title of this work was Morals of Sensibility, or the

Wise Person's Materialism, the fate of which is a matter of controversy. Rousseausaid of the project that 'I abandoned it altogether' while it was still sketched in

manuscript (C 478), yet later in his Confessions he claimed that, many yearsafter he abandoned the work, the manuscript was stolen during his move

from Montmorency to Metiers, a theft which he for some reason attributedtod'Alembert(C561).

His description in the Confessions of the argument of this unfinished work is

the best place to start, so I will quote it at length. He began with the commonphenomenon that at one time a person will resist a certain temptation andthen at another succumb to it

Looking within myself and seeking in others for the cause upon which thesedifferent states of being depended, I discovered that they had a great deal todo with our previous impressions from external objects, and that, being con-tinually a little changed through the agency of our senses and our organs, wewere unconsciously affected in our thoughts, our feelings, and even ouractions by the impact of these slight changes upon us. Numerous strikingexamples that I had collected put the matter beyond all dispute; andthanks to their physical basis they seemed to me capable of providing anexternal code [regime] which, varied according to circumstances, could put

or keep the mind in the state most conducive to virtue (C 381).

Based on this description, one can see that his claim to have abandoned thework must be taken in a particular way. For while he may have abandoned

the manuscript, he unquestionably continued to develop and write about the

ideas. His reference to an 'external code' obviously reminds one of Emile's

educational program, which gives some further clues about his views on theplace of sense experience in human psychology. Furthermore, ChristopherKelly has argued that Rousseau's most complete expression of this psy-

chological theory was not Emile but his Confessions itself. 10 This is anotherimportant source for piecing together what he might have said in his Moralsof Sensibility. The underlying question, again, concerns how he reconciled his

Civil freedom 63

belief in freewill with his theory that the human body is a machine and thehuman mind is a product of its prior sensory experiences.

Before pursuing the issue further, I should mention as an aside that there issome doubt about the value of his Confessions as a resource for answering thequestion. Although Kelly makes a compelling argument, there is a difficultywith the theory that Confessions is Rousseau's mature work on psychology, that

it is Morals of Sensibility cast into dramatic and autobiographical form. Theproblem is based on Rousseau's own inconsistent descriptions of what thework was supposed to be. On some occasions, which support Kelly's inter-pretation, he described it as a case study in sensationalist psychology. 'There isa certain sequence of impressions and ideas which modify those that followthem, and it is necessary to know the original set before passing any judg-ments. I endeavor in all cases to explain the prime causes, in order to conveythe interrelation of results' (C169). Furthermore, in many of the stories thatmake up the book, particularly those of his youth, his point was to show howthe people and objects he encountered shaped his character. For example, hesaid of his time at the school of the Lambercier's with his cousin in 1723—4that, 'The manner of my life at Bossey suited me so well that if only it hadlasted longer it could not have failed to fix my character for ever. It wasfounded on the affectionate, tender, and peaceable emotions' (C 24—5).When his uncle apprenticed him to a cruel engraver the next year he said,

T learned to covet in silence, to conceal, to dissimulate, to lie, and finally tosteal - an idea that had never before come into my head and one that I havenever been able entirely to rid myself of since' (C 40—1).

But the matter is not that simple. In other passages Rousseau said that thework had a different purpose than to show how his experiences had shapedhis beliefs, desires, and interests. Its purpose was to render a true account ofhimself that posterity may use to correct the malicious judgment of his con-temporaries. He said that, 'since my name is fated to live, I must endeavor totransmit with it the memory of that unfortunate man who bore it, as heactually was and not as his unjust enemies unremittingly endeavor to painthim' (C 373). This purpose is not necessarily at odds with that stated above,because in displaying himself as a psychological case study he might alsocorrect his distorted image from pens of those who knew him. Nonetheless, thetwo goals are far enough apart that, aiming at one, he is likely to miss theother. In particular, an accurate description of his inner life is as likely toconfirm as to refute the judgment of his acquaintances that he was paranoidand deluded.

Regardless of whether one takes Confessions or Emile as the more completeaccount of his psychological theory, the problem of freewill in Rousseau'sphilosophy is clear. His psychological theory seems to contradict his theory ofthe will because if a person's internal life, including one's preferences, desires,


ideas, and therefore one's actions, are determined in part by that person'sinner nature and in part by climate, noise, motion, colour, and other sensoryevents, where is freewill? Rousseau's answer rested on a simple psychological

assumption; he believed that although one's nature and environment together

determine the kinds of inclinations and passions that one has, human beingsare uniquely able to use their judgment to choose whether or not to follow

those inclinations. This power is freewill. He said, 'Nature commands everyanimal, and the beast obeys. Man experiences the same impression, but he

recognizes himself free to acquiesce or resist; and it is mainly in the conscious-

ness of this freedom that the spirituality of his soul exhibits itself (D 141).He repeated this thesis in the 'Profession of Faith of a Savoyard Vicar' inEmile. T have a body on which other bodies act and which acts on them.

This reciprocal action is not doubtful. But my will is independent of my senses;I consent or I resist; I succumb or I conquer; and I sense perfectly within

myself when I do what I wanted to do or when all I am doing is giving way tomy passions' (E 280). From this perspective, his sensationalism is irrelevant

to the question of freewill; for even if one's desires, feelings, attractions, andaversions are the consequences of prior sensory experiences, and no matter

how those experiences produce ideas and inflame or mollify passions, they donot replace the human capacity to heed or ignore these inclinations. Thus,freewill is the power of humans to use their reason in order to resist those

things to which they are drawn, and to pursue those things toward whichthey are not immediately inclined.

One must admit, I think, that this account is inadequate as a theory offreewill because it fails to answer two famous and obvious questions. The firstconcerns whether or not reason alone can motivate an action. Rousseauseemed to say that a person is free when he acts on the basis of his reasonalone without the interference of the passions. Yet there is good evidence thatthis thesis relies on a false theory of action. The most well-known version of

this objection is the one developed by Hume, who argued that while reason

has the power of discovering truths about the world, these truths cannot moti-

vate an action unless they are accompanied by some relevant passion. To usea simple example, reason can discover (based on observation) that arsenic

is a poison, yet this knowledge alone cannot motivate a person to consume

or avoid arsenic; it is only when this knowledge is accompanied by a desire

for something, such as the desire not to perish, that it can act as a basis for

action. If this is true, then reason alone cannot motivate an action, whichimplies that Rousseau must have been wrong in positing that some acts canflow from reason independently of the passions. 13

Even if this objection can be answered, however, his theory faces a second

one, which is equally serious and fundamental. Rather than explaining free-

will Rousseau seemed simply to push it back a step. He said that free acts are

Civil freedom 65

those that flow from one's reason; but what causes a person to reason in oneway rather than another? Presumably there is some cause for why peoplereason as they do; and this cause presumably has a cause, and so on. Thus it is

not clear that he has solved the problem of freewill. Rousseau saw that heneeded to answer this, yet his response does not seem to do what is required ofit. He said, 'What, then, is the cause that determines his will? It is his judg-

ment. And what is the cause that determines his judgment? It is his intelligentfaculty, it is his power of judging' (E 280). The difficulty with this theory,

obviously, is that it treats the power of judging as a wholly active or spontan-eous faculty, a thesis that is questionable in itself and at odds with the sensa-tionalism that pervades other aspects of his psychological theory. Whatever a

person judges to be best there is presumably some reason for judging that way

rather than another. Obviously, different considerations will influence differ-

ent people; but if all of a person's psychological life is the result of who thatperson is and what that person has experienced, then why is this not true alsofor the causes that lead that person to judge things one way rather than

another and thus to will one thing rather than something else? And even if aperson's reason, or power of judging, was somehow independent of the rest ofthat person's psychology, there must be some cause for why it is as it is and notsome other way.

Rousseau seems to have captured the experience of what it is like to make a

decision; one weighs the alternatives, considers one's values and desires, thinksabout the consequences, and finally decides. But it appears there must besomething in one's psychology that makes one choose what one does. If that

something is the result of one's nature and experience, it is hard to see how hecan avoid saying that this thing, whatever it is, is less causally determined thaneverything else in one's psychology. And if it is determined in this way, hisargument about the will does little for explaining how freedom is possible.The problem is particularly sharp in light of his claim in The Social Contractthat, 'under the law of reason nothing is done without a cause, any more than

under the law of nature' (S 61). In the face of this problem he simply said,'Beyond this I understand nothing more' (E 280).

Although the problems are significant, these questions about freewill have

no immediate consequence for his theory of civil liberty. His discussion of

freewill concerns a psychological issue about the cause of choices that people

make, while civil liberty has to do with the scope and limits of the freedomthat people in political society have to create the kind of life they want without

interference from the government or other citizens. The issues overlap, but I

do not think that the problems that may exist in his theory of the will affect

the point or cogency of his theory of civil liberty. This means that while onecan get a sense of the overall structure of his theory certain areas remain tobe filled in. He argued that the associates to the pact should be free to live as


they wish within the bounds of the common good as he defined it, and that thegovernment should protect them in this freedom from all forms of coerciveinterference, whether from a force outside the community or from the othermembers of the social pact. To this extent he could remain agnostic about themeaning and possibility of freewill because one can measure a citizen's civilliberties without reference to issues in psychology.

On his view, people have civil liberty to the extent that the state andsociety give them options regarding what to believe, what to say, whom toassociate with, where to live, and other basic freedoms. This leaves open thequestion of whether, given their nature and experiences, they could reallybelieve something different than they believe, or say something differentthan they say; yet at the level of politics one need not answer the question.The issue becomes more complicated, however, with reference to Rousseau'stheory of moral freedom. As I will discuss in Chapter 5, this is an addi-tional kind of liberty that the members of a well-ordered society would possess;and it is one whose nature is more directly connected with the possibilityoffreewill.

The last point to touch on is the place of the Lawgiver in Rousseau's theory ofcivil freedom. In the last chapter I mentioned the Lawgiver only in passing; itis one of the more unexpected and cloudy parts of Rousseau's political theory.The underlying idea is that the success of the society he proposed relies onmembers who have the kind of character that could only be the result ofalready living in such a society. Thus some kind of external power is requiredto shape people into potential citizens; Rousseau called this person or powerthe Lawgiver. There is some question in his theory about the Lawgiver's placeonce the political society is formed, especially on the question of whether theLawgiver participates in framing the laws that people vote on as part ofthe regular legislative process; but this is irrelevant to the present point, whichis that the Lawgiver prepares people to enter political society in the first place.'Anyone who dares to institute a people must feel capable of, so to speak, chan-ging human nature; of transforming each individual who by himself is a per-fect and solitary whole into part of a larger whole from which that individualwould as it were receive his life and his being; of weakening a man's constitu-tion to strengthen it' (S 69). This person of the Lawgiver seems to present aproblem to Rousseau's theory of civil liberty.

Given his argument that the Lawgiver must form or re-form the characterof each associate in order to make the social pact work, the power of eachassociate to create a life of his or her own seems to be limited. After all, what

6

Civil freedom 67

kind of civil liberty exists when people must in some sense be brainwashedinto being good citizens before they can live in a society that creates these civil

liberties? While Rousseau did not address the question directly, his philosophyseemed to offer an answer. While this is only speculation, the issue is importantenough that it is worth thinking about. The first point is that Rousseau was

one of the great defenders of the idea that people are largely made what theyare by their society and upbringing, which should be clear to any reader of his

'Second Discourse' or Confessions as well as by the preceding discussion of free-

will. But because he believed that people are so profoundly shaped by theirexperiences, it follows that he would probably not think them less free becausetheir environment was designed to shape them in one way rather thananother. In other words, if people are made what they are by their prior

experiences then they are not necessarily less free because those experiences

were planned rather than being the result of random external forces.There must be a limit somewhere, of course. We would not say that someone

is free who had his brain chemically stimulated from birth to produce a prede-

termined list of beliefs, desires, memories, etc. Nonetheless, if all people are in

some sense the product of their upbringing, they are not necessarily less freebecause of it. For example, I would not be writing this book if I did not havethe family, friends, and teachers that I had; but I do not feel that my power tolive a life of my choosing is diminished for that reason. Rather, one's upbring-

ing is the context for having that freedom at all. Rousseau's theory thus hintedat the view that was developed only in the next century, according to which

individual personhood is not something that exists outside of society but isinstead something achieved within it. I can express my civil freedom by choos-

ing to live one way rather than another only because I exist in a social worldthat includes public categories that I can choose between. If I wished to be aserf, or a knight, or a mandarin, for example, I would be out of luck becausethere is no social space for this kind of choice in the society in which I happento live. For this reason I think he would say that the existence of the Lawgiveris not a serious limit to one's civil liberty because all people are formed bya pre-existing social world that is the condition of being a free individual in

the first place.Nonetheless, the issue is more slippery than it might seem. For one is temp-

ted in this context to use the same argument that he used in the case of religious

toleration. Since political society is the condition for having any rights at all,

one cannot have a right to disobey the principles that make the society poss-

ible. But there is a difference between the two cases. The question of religious

toleration concerns people who are already associates to the social pact. These

people have agreed to subordinate themselves to the common good, so haveno grounds for complaining when that good requires them to do somethingdifferent than what they might like. In the case of the Lawgiver, however,


the people in question are those who are being formed as future citizens, whichmeans that they have not yet agreed to the terms of the pact. They have notsubordinated themselves to the good of the community, which means that theforce which directs them toward that goal is not an expression of their own willas it is in the case of people who are already citizens. This leaves some tensionbetween the Lawgiver and his theory of civil freedom; yet I think all defencesof individual liberty face this problem. The success of a political society thatallows for civil liberty requires that its citizens have the qualities of characterthat allow such a society to flourish. This means, paradoxically, that the moreone values individual liberty the more one must advocate a certain kind ofsocialization.

To make a summary of this overall argument regarding civil liberty, Rous-seau's theory stated that the individual freedom of each citizen may be limitedonly by the common good. The terms of the social pact imply first that thewhole community must protect its members from injuries coming from out-side, and that the law must prevent individual associates from infringing oneach other's choices. Furthermore, it implies that the government can limitthe freedom of the associates only for the genuine good of the community, notsimply for the good of particular bureaucrats or even because a majority of thecitizens dislike a certain way of life. Moreover, the institutional structureRousseau described contains further checks on the Sovereign's power in thesense that the law must be perfectly general and voted on by the people them-selves. Lastly, if it is true that wide civil liberties promote the permanent inter-ests of humanity then the Sovereign must protect them for that reason alone.Taking these arguments together, one cannot agree with those like Berlin whoargue that Rousseau was one of the enemies of human liberty. 17 While it iscorrect that he had no theory of natural rights that one could claim againstthe state, his political philosophy offered a clear defence of civil rights againstall infringements except the needs of the community that creates and protectsthose rights in the first place.

In fact, even his most radical claims, the ones that lead so many readers tothink that he was some kind of totalitarian, appear quite different in light ofthe above qualifications. These worries are rooted in his fundamental thesisthat the Sovereign has absolute discretion over the property and lives of itssubjects, against which no associate retains the slightest recourse. Now, how-ever, one can see that his point was fairly simple and that it seems ominousmore because of his choice of words and his readers' prejudice than becauseof his actual meaning. To take the two points in order, he does argue thatthe Sovereign has a claim to every bit of everyone's property, which is his pointin saying 'the right of every individual over his own land is always subordinateto the right the community has over everyone' (S 56). Yet when this is read inlight of his definitions of Sovereign, community, and right, as well as in light of

Civilfreedom 69

the qualifications I discussed above, his point is less than stunning. He seemsto have meant that a democratic community has a right to tax its membersfor the benefit of the whole even if particular people do not feel like payingtheir share.

The case of the citizen's lives is analogous. He did argue that the life of eachcitizen is a conditional gift from the state, which the Sovereign may recallwhenever it decides to (S 64). But again, his definitions of the key termsinvolved and his discussion of the limits on sovereignty show that his meaningis not what it might seem. To say that the Sovereign has an absolute right overthe lives of its citizens is just to say that a democratic community can, in a timeof need, compel military service or some other kind of public labour for thepreservation of the whole. Again, the concrete example is less shocking thanthe abstract principle; and whatever its shortcomings, Rousseau's theory ofsovereignty raises a point that is significant for all philosophies of politicalauthority. If the sovereign power, whatever it is, did not have this absolutediscretion over the property and lives of its citizens, then how is it possible tojustify taxation and compulsory public service for people who are greedy, lazy,or selfish? The idea that the state can in principle compel people to pay taxesand to serve the community with their bodies is not a radical thesis; for thereare very few political theories that do not allow these powers to the govern-ment; this is true even of the most liberal philosophies. Rousseau attemptedonly to show how a government might come to have such rights over its mem-bers and why it is to the members' benefit that it is so.

Notes

1. For a full account of freedom in the state of nature see, Maurice Cranston, 'Rous-seau's theory of liberty', Rousseau and Liberty, ed. Robert Wokler (Manchester:Manchester University Press, 1995), 231-43.

2. Among many such references to natural rights, see S 17, S 50, S 61, S 1 76, D 179,andD 184.

3. For a more complete treatment of why the law must be perfectly general see,Christopher Bertram, Routledge Philosophy Guidebook to Rousseau and the Social Con-tract (London: Routledge, 2004), 112-115.

4. The classic statement is John Stuart Mill's On Liberty, in On Liberty and Other Writ-ings, ed. Stefan Collini, Cambridge Texts in the History of Political Thought(Cambridge: Cambridge University Press, 1989), 5-115.

5. Will Kymlicka, Contemporary Political Philosophy: An Introduction, Second Edition(Oxford: Oxford University Press, 2002), 29. Chapter 2 gives an interesting sum-mary of the limits of utilitarianism as a political theory.

6. Timothy O'Hagan, Rousseau, Arguments of the Philosophers (London: Rout-ledge, 1999), 227-34.


7. John Locke, A Letter Concerning Toleration, ed. James H. Tully (Indianapolis:

Hackett Publishing Company, 1983), 49-51.

8. Daniel E. Cullen, Freedom in Rousseau's Political Philosophy (DeKalb: Northern Illi-

nois University Press, 1993), 85.

9. Isaiah Berlin, 'Two concepts of liberty', Four Essays on Liberty (Oxford: Oxford

University Press, 1969), 122.

10. Christopher Kelly, Rousseau's Exemplary Life: The Confessions as Political Philosophy

(Ithaca: Cornell University Press, 1987), 36.

11. See also the 'Third walk' in Rousseau's Reveries of a Solitary Walker.

12. David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary

J. Norton (Oxford: Oxford University Press, 2000), 265-68 (Book 2, Part 3,

Section 3).

13. For a defence of the view that reason alone can motivate actions see, Christine

Korsgaard, 'Skepticism about practical reason', The Journal of Philosophy, vol. 83

no. 1 (January 1986), 5-25.

14. One classic account of what it might mean to say that human freedom consists in

the spontaneity of reason is, Immanuel Kant, Grounding for the Metaphysics of

Morals, trans. James W. Ellington (Indianapolis: Hackett Publishing Company,

1981), 49~61 (Third Section). For an exegesis see, Henry Allison, Kant's Theory of

Freedom (Cambridge: Cambridge University Press, 1990).

15. A good overview of the place of the Lawgiver is, Hilail Gildin, Rousseau's Social

Contract: The Design of the Argument (Chicago: University of Chicago Press, 1983),

67-91; see also, Christopher Kelly, ' "To persuade without convincing": the lan-

guage of Rousseau's legislator', American Journal of Political Science, vol. 31 no. 2(May 1987), 321—35. For a broader (and more controversial) argument about

the kind of character formation required by Rousseau's theory see, Steven G.

AfFeldt, 'Society as a way of life: perfectibility, self-transformation, and the

origination of society in Rousseau', The Monist, vol. 83 no. 4 (October 2000),

552-606.

16. For an analysis of this paradox see, William A. Galston, 'Liberal virtues', The

American Political Science Review, vol. 82 no. 4 (December 1988), 1277-90. For a

relevant exchange on the topic of citizenship and individual liberty see, The

Review of Politics, vol. 61 no. 2 (Spring 1999), 181-217: Richard Dagger, 'The

Sandelian republic and the encumbered self; Michael Sandel, 'Liberalism

and republicanism: friends or foes? A reply to Richard Dagger'; and Richard

Dagger, 'A rejoinder to Michael Sandel'.

17. Isaiah Berlin, Freedom and Its Betrayal: Six Enemies of Human Liberty (Princeton:

Princeton University Press, 2002), 27-49.

Chapter 4

Democratic freedom

1

The second kind of freedom that the social pact makes available to its mem-bers is democracy. As I mentioned in Chapter 2. 5, Rousseau defended a

theory of sovereignty according to which the members of the social pact mustmake all of their laws in person; thus democracy is a necessary element ofthe political system he described. This was his point in saying that proposed

statutes can pass into law when only they have 'been submitted to the free suf-frage of the people' (S 70). Indeed, this is one of the reasons that the book

brought such great condemnation upon him when it was published. 1 Like

civil liberty, democracy is a meaningful kind of freedom possessed by the

members of the social pact, yet the two are different in the sense that civil lib-erty applies to individual persons while democracy is a characteristic of thepeople taken as a whole. Rousseau's theory of democracy raises many ques-

tions, the most pressing of which concerns why he said that all the peoplemust vote on their own laws in the first place; indeed, many scholars questionwhether this was really required by the premises of his argument. I believe,however, that his theory of democracy was a necessary part of his account ofpolitical society, a part which had an interesting relationship both to hisdefence of civil liberty and to the terms of the social pact itself.

At the outset, two important distinctions are needed to frame the issue. Thefirst is that when Rousseau argued that the people must vote on their own laws,he meant the people themselves not just their representatives. His theory of

democracy was an argument for direct not representative democracy of the

kind that is familiar today throughout the world. This was his point in say-ing that 'Sovereignty cannot be represented... Any law which the People has

not ratified in person is null; it is not a law' (S 114), and that, 'the instant a

People gives itself Representatives, it ceases to be free; it ceases to be' (S 115).

It was also the foundation of his criticism of the English parliamentary system.

He remarked that, 'The English people thinks it is free; it is greatly mistaken, it

is free only during the election of Members of Parliament; as soon as they areelected it is enslaved, it is nothing. The use it makes of its freedom during thebrief moments it has it fully warrants its losing it' (S 114).


The second point is that when Rousseau argued that sovereignty cannot berepresented, he meant something very specific by the word sovereignty. As Idiscussed in Chapter 2. 5, his constitutional theory identified a number ofdifferent offices in a well-ordered society, the two most important being whathe called the Sovereign and the Prince, which correspond roughly to thelegislative and executive parts of the state. His argument against representa-tion applied only to the first; the people cannot give up their sovereign powerof making the law. Regarding the Prince, however, he said that the people notonly can but should elect representatives to run the executive part of the state(S 93). This means that his argument for direct democracy was not a call toreturn to the ancient democracies of Greece and Rome in which the peoplewere permanently assembled not only to frame the law but also to declarewar, negotiate treaties, try court cases, watch over the public accounts, andperform all the other functions of government.

Scholars have proposed a number of explanations for this puzzling theorythat the people must make their own laws. Many of them, however, arepatently inadequate. John Chapman for example argues that, 'Law is the ex-pression of the general will and can, therefore, be made only by the people'. 2

This is a good way of paraphrasing what Rousseau said, but it leaves thequestion unanswered because it fails to explain what is implied in this 'there-fore'. He later elaborates the point by saying that if people did not legislatefor themselves they would thereby 'place themselves in a position of personaldependence'. 3 But this also seems unsatisfactory. For although the issue ofdependence in Rousseau is complicated, his point is weak in light of Rous-seau's argument that citizens can and should elect representatives to fulfil theexecutive office. If the body of citizens can represent the executive powerwithout becoming personally dependent on its representatives it is unclearwhy it could not do so for the legislative power as well.

Shklar offers an alternative explanation. She argues that, 'The justifiablecivil society is one in which the people's interests, and none other, determinethe rules: not kings and not representative parliaments, but the people aresovereign'. But this contains an equivocation because to say that the people'sinterests should determine the rules is one thing, while to say that the peoplethemselves should determine the rules is something else. It is correct thaton Rousseau's system the people's interests must rule because this is implied bythe terms of the social contract which subordinates each citizen to the commongood. But why does this imply that they must make their own laws in person?Presumably they could delegate this authority to representatives, whom theycould remove from office at their pleasure. Furthermore, Rousseau was pessi-mistic about people's ability to know what is in their interest in the first place(S 68). It seems possible at least in principle that a group of wise representa-tives or a public-spirited monarch could know the people's interests better or

Democratic freedom 73

at least as well as the people themselves. If so, then they could elect this groupor this person to the legislative office and save themselves the considerabletrouble of having to make their own laws.

There is, however, a related and more sophisticated school of thought con-cerning why Rousseau argued for direct democracy. If it could be shown thatthe people as a whole have a greater likelihood of correctly discovering theirown interests than does a group of representatives or a monarch, this mightexplain why he argued that they cannot represent their sovereign power.After all, because each associate is completely subordinate to the commongood, a great deal turns on the community's ability to figure out what it is.At one point, Rousseau himself appeared to make this argument. He said,'There is often a considerable difference between the will of all and the generalwi l l . . . but if, from these same wills, one takes away the pluses and the minuses,what is left as the sum of the differences is the general will' (S 60). This againappears to be his point in saying that, 'according to the fundamental pact onlythe general will obligates particulars, and there can never be any assurancethat a particular will conforms to the general will until it has been submittedto the free suffrage of the people' (S 70). He seemed to mean that since peopleand groups can be expected to misjudge things in their favour, the commongood is most likely to be revealed when as many perspectives as possible havea vote, with the result that individual biases nullify each other and the publicinterest remains. On this interpretation, the reason Rousseau called for directdemocracy was that the people as a whole are better able than a group ofrepresentatives to discover the general will.

This interpretation of Rousseau's argument for direct democracy is quite pro-mising. It is clearly rooted in the main tenets of his political theory and it canaccount for many of his important statements on the topic. The most sophist-icated defence of this interpretation is the one offered by Bernard Grofmanand Scott Feld. They use the so-called 'jury theorem' developed in the lateeighteenth century by the Marquis de Condorcet to explain why Rousseaubelieved that the citizens as a whole could best discover the common good.For all its power, however, this interpretation is not quite plausible either;yet the reasons it fails clarify many aspects of Rousseau's argument.

The first point to understand about Rousseau's theory of democracy is that,although he argued that the people must vote in person, the majority never-theless rules. In other words, everyone must vote on the law but not everyonemust agree on the vote. If the majority favours a measure, then it passes intolaw, although he was somewhat ambiguous about how much of a majority is

2


needed. With this in mind, one may turn to Condorcet's jury theorem, whichis a mathematical proof in the field of statistics. Although the mathematicsare quite difficult, its overall point is easy to grasp. Other things being equal,

groups make better decisions than individuals and large groups make betterdecisions than small ones. To put it a little more technically, the theoremshows that if voters are deciding an issue with one right and one wrong

answer, and if the average probability that each voter will choose the right

answer is above ^, then the probability that a majority will choose theright answer increases toward 1 as the number of voters increases. It may takethe reader a moment to grasp the point; but as soon as one does, many strik-

ing things can be seen to follow. The most important consequence of thetheorem is that the procedure of majority-rule can produce decisions that

are better than the average competence of the voters involved; in fact, it caneven yield decisions that are better than those of the most competent votertaken by herself. This means that, within the limiting conditions of the the-orem, the majority judgment of a middling group is more likely to be correct

than the judgment of the wisest individual.This may seem far-fetched, in response to which I can only refer one to the

mathematics of the theorem itself, which is as certain as anything can be. 6

In any case, the conclusion should not seem particularly striking; it is just the

technical version of the saying that the individual is foolish but the species is

wise. Aristotle sensed the same thing even if he did not have the mathematicsto back it up. 'For the many, of whom each individual is not a good man, whenthey meet together may be better than the few good, if regarded not individu-ally but collectively... For each individual among the many has a share of

excellence and practical wisdom'. The thesis is regularly demonstrated ontelevision game-shows in which members of the audience vote on answers totrivia questions; the majority or plurality is almost always right even thoughindividually they may be only of average intelligence.

Another interesting thing about the jury theorem is that the probability of a

correct decision is correlated in remarkable ways both to the average compet-ence of the voters and to the size of the voting pool. Grofman and Feld show

that if the average probability that the individual voter will choose the right

answer is 0-51, the probability that the majority vote in a group of 399 people

will choose the right answer is 0-66. But, if the average competence is raised

only to 0-55, and the size of the voting pool is kept at 399, the probability thata majority vote will choose the right answer is 0-98. This shows that, underthe stated conditions, 'the majority vote of the group will be almost certain to be

correct in its judgment of the public interest'. The relevance of the argument toRousseau is clear enough. Grofman and Feld use the jury theorem to explain

why he argued that the whole body of citizens should make the laws. Biggroups make better decisions than small groups or individuals. Since one job


of the Sovereign is to discover the general will, it can best do this when all of the

citizens participate in the judgment.Yet, while the argument is sophisticated and interesting, it faces signific-

ant objections at two different levels. The first has to do with their thesisabout the historical influence of the jury theorem on Rousseau. The most

obvious problem is that Condorcet published the theorem more than twodecades after Rousseau published The Social Contract. Furthermore, Rousseauwas himself a weak mathematician, so it is impossible to think that he dis-

covered the theorem on his own (C 226). They are aware of this problem

and in response propose that 'ideas similar to those later to be formally devel-

oped by Condorcet were "in the wind, " and influenced both Rousseau and,later, Gondorcet; and there certainly were various social and intellectual

linkages between Rousseau and Condorcet'. 9 It is hard to know what to

make of this argument. While they may be right that ideas like Condorcet's

were in the wind, it is highly unlikely that any of them could have landed

in Rousseau's mind, which had great trouble even with Euclid. If theysimply mean that people were discussing the idea that groups often make

better decisions than individuals then, as I said, this thought goes back at

least to Aristotle and leaves Condorcet out of the picture. In fact, David

Estlund shows that any influence of Condorcet on Rousseau is unlikely ifnot impossible.

The other objection is philosophical. The jury theorem does not do what

Grofman and Feld want it to; it does not imply that direct democracy is

always the best way to make laws. In fact, it shows the opposite because the

theorem cuts in a number of directions, not all of which are favourable tomajority-rule by a large assembly. Jeremy Waldron notes that the problemwith making a voting pool as large as possible is that as the size of the groupincreases the average competence of the voters is likely to go down. Thus, whatis gained on one side is lost on the other. This is particularly important giventhe nature of the theorem, which shows that if the average competence of thevoters falls below ̂ , then as the size of the voting pool increases the probabilitythat a majority vote will discover the truth approaches 0; it is, as Waldron

says, a theorem that 'faces two ways'. 11 The point should be obvious in anycase. A highly incompetent group cannot make better decisions just by

adding more highly incompetent people to the voting pool. If it could, then

they should also begin adding monkeys and parakeets and other vocal animals

simply to increase the size of the assembly. Aristotle noticed this as well; con-

sidering whether bigger is always better he remarked, 'Whether this principlecan apply to every democracy, and to all bodies of men, is not clear. Or rather,

by heaven, in some cases it is impossible to apply; for the argument wouldequally hold about brutes; and wherein, it will be asked, do some men differ

from brutes'. The question then concerns whether the increase in the size of


the voting pool makes up for the decrease in the average competence; and tothis there is no absolute answer. Grofman and Feld discuss this problem intechnical detail, and ultimately conclude that, 'In Condorcetian terms - insome situations the most useful voting that can be done by a large assembly isto select a smaller and more competent subgroup to decide matters'. 13 Thisobviously does not help to explain why Rousseau said the people must votefor their laws in person.

There is one further aspect to this question about the size of the assemblyand the quality of the decisions it makes. Even when an increase in size doesbring an increase in quality, each new member of the voting pool has adecreasing marginal utility. It is true that under the conditions stated alarger group will likely make a better decision than a smaller group of equalcompetence; but as the size of the group grows, each additional member addsless and less to the likelihood that the majority will be correct even if that mem-ber's competence is at or above the average. As I said above, Grofman andFeld show that an assembly as small as 399 citizens can achieve somethingclose to certainty with an average competence of only 0-55. Thus almost noth-ing would be gained by increasing the size of the assembly to 3, 999 or 39, 999even if one could guarantee that the increase in size would not dilute the aver-age competence of the group. This second set of objections has important con-sequences. It shows that there is no reason to believe that a bigger group willalways make better decisions than a smaller one, which means in turn thatdirect democracy is not necessarily better or as good as representative demo-cracy at discovering the common good.

It is important to be precise about what this means for Rousseau. It showsthat if his reason for defending direct democracy was that he believed thewhole body of citizens would always reach better decisions than a group ofrepresentatives, then he was wrong. Subsequent developments in math-ematics, and common sense by itself, suggest that sometimes and perhapsoften a group of representatives will be able to discover the public interestmore consistently than a large body of citizens voting together. However, onemust put this finding in its proper place. There is in fact not much evidencethat this is why he argued for direct democracy to begin with. Or, to put itmore precisely, there is almost no evidence at all regarding why he arguedfor direct democracy; if their interpretation seems plausible it is largelybecause of the lack of other alternatives. Yet I do not think that the interpreta-tion is plausible after all. There is little direct evidence that this is what Rous-seau meant, if he did mean it he was wrong, and the evidence that he waswrong would have been largely available to him as it was to Aristotle, inde-pendent of the jury theorem. In fact, the only direct evidence for this readingare the passages I cited above in which Rousseau described the particular


wills cancelling each other out leaving the general will. But these passages areambiguous, because presumably the particular wills of a correctly chosenrepresentative body could cancel each other in the same way.

Although none of these readings explains why Rousseau argued fordirect democracy, they reveal something important. Whatever his reasonfor defending direct democracy it was not a merely practical or prudentialconsideration. For example, it was not that for the most part large groupsmake better decisions than small ones; or that collective deliberation tends tomake people more patriotic; or that many representatives are corrupt; or someother such consideration. For Rousseau did not say that direct democracy issimply a smart plan, rather he said that any law the people have not ratifiedin person is null; in other words, the problem with representation is not thatit is unwise but that it is illegitimate. This implies that the argument for directdemocracy, whatever it might be, is a necessary consequence of the terms ofthe social pact rather than a practical suggestion about how to frame goodlaws. This should be clear in any case because direct democracy is highlyimpractical even apart from the question of whether big groups tend to makegood decisions. It puts a drastic limit on the size of the state, which causedRousseau a number of difficulties in his argument (S 115).

Before going on to discuss the details of Rousseau's presentation, I shouldmention that there is another possibility, which one should not be embarrassedto admit. It may be that Rousseau had no definitive argument for directdemocracy; perhaps his claim that the people must make their laws in personhad no basis in the principles of his general political philosophy. This wouldexplain why he has so little to say in support of it. This possibility is worthconsidering because it is the conclusion reached by Richard Fralin in themost complete study of Rousseau's theory of democracy. Fralin claims thatRousseau's presentation was a kind of ruse because, 'his real objection torepresentation was not theoretical but practical; he was convinced rightly orwrongly, that popular assemblies are more effective than representativeassemblies in preventing or retarding executive usurpation of popular sover-eignty'. 16 For the reasons just mentioned, I do not find it plausible to say thatthe argument for direct democracy is ultimately a practical one because it ishard to imagine a less practical arrangement. Nonetheless, Fralin's deeperpoint may be correct. His thesis is that, 'The concepts of the social contract,popular sovereignty, and the general will, then, do not in themselves necessar-ily exclude representation'.17 This reading leaves open the question of whyRousseau said they did; but that would be more a psychological questionthan a philosophical one. I believe, however, that Rousseau's argumentsagainst representation do follow from the terms of the social pact, which Iwill turn to now.


3

Part of the problem for understanding Rousseau's theory of direct democracyis that his argument against representation was exceptionally terse. His mostexplicit statement was, 'Sovereignty cannot be represented for the samereason that it cannot be alienated; it consists essentially in the general will,and the will does not admit of being represented: either it is the same or it isdifferent; there is no middle ground' (S 114). The best way to understand theissue, I think, is first to see what Rousseau meant by saying that legislativesovereignty cannot be alienated and then to see why it cannot be representedeither. The first stipulation of the social contract is that the citizens forfeit all oftheir freedom and power to the community under the direction of the commongood; this implies that there must be some entity that will discover thecommon good and express it in the law. Since no one brings any unique pre-rogatives into the social pact this power can fall only to the people as a whole.Because this sovereignty belongs to no one in particular, it belongs to every-one, which is to say that if the community is to make the general will concretethrough the framing of law, the only body that can be conceived to have thispower is the assembly of citizens itself. The first question, then, concerns whyRousseau said that the community cannot alienate its sovereignty.

By the term alienate he meant to give away or to sell (S 45); and by the termsovereignty, again, he meant the right to declare the common good andthereby direct all the powers of the community (S 57). So, could a communitygive away or sell the right to determine the common good? Rousseau arguedthis is impossible because a group of rational beings, given the choice, couldnot give up to some other person the authority to decide how all of its powersand freedoms will be used. It is important to follow very carefully his reasoninghere. Since the Sovereign can demand anything of the citizens, for them togive away this power without condition would be to say T give everything toyou and you give nothing to me'. It would be a contract in which one of theparties gives up all and receives nothing in return. However, this cannot beconceived as an utterance of a rational agent, because no good can be ima-gined to issue from it, 'and no will can consent to anything contrary to thegood of the being that wills' (S 57). Furthermore, to sell their sovereigntywould be equally futile because since the Sovereign controls all the rights ofthe community it could simply take back whatever price it had paid for it.So, Rousseau argued that in the case of sovereignty there is no differencebetween selling it and giving it away; and giving it away is madness.

This line of thought parallels his argument against Grotius on the questionof whether or not it is ever rational for a person to sell himself into slavery.Grotius argued that, for example, it might be rational for a very poor man toenslave himself to a rich one if the latter agreed to adopt and educate his


daughter. Rousseau said two things in response; the first was that while the

argument might work in the case of a single man it would not in the case of a

whole people, because while a master might be able to do something so valu-able for a single person that the latter could rationally sell himself to get it,a master could never do something so valuable for a whole society (S 47). His

second argument, however, was more pertinent to the present case. He argued

that in the above scenario the poor man's condition after selling himself, how-ever horrible it might be, is not slavery in the meaningful sense, because bothparties retain obligations to each other. It would become slavery only ifthe rich man neglected his obligations to the daughter, while still forcing thepoor man to do his bidding.

Although it might have been rational for the poor man to sell himself under

the terms of a hard bargain, it would be irrational for him to give himself tothe master for no terms at all. This was Rousseau's point in saying that, 'a con-

vention that stipulates absolute authority on one side, and unlimited obedi-

ence on the other, is vain and contradictory' (S 45—6). Thus, Rousseau'sanswer as to why sovereignty cannot be alienated was that such an act could

never issue from the will of a rational agent. If this still seems foggy, one canrecall his argument that the Sovereign's power comes from the consent of

the governed in the first place; therefore if alienation is something that in prin-

ciple cannot be consented to, then sovereignty cannot be alienated just byvirtue of what it is. It cannot be alienated for the same reason that a squarecannot have three sides.

Even though his argument for why sovereignty cannot be alienated is fairly

clear, it does not seem to explain why 'for the same reason' it cannot be repre-sented. While it is irrational to say 'I'll give everything to you and you givenothing to me', it is highly rational to say 'I'll give you something you want ifyou give me something I want'. After all, the social pact itself is such anarrangement. It seems that a people could represent its sovereignty throughan arrangement constructed along these lines. They might say, for example,'We will give you the authority to declare the common good but we reservethe right to remove you from office at our pleasure. In return you will getglory and the knowledge that you have served your homeland'. The difference

between this covenant and the one discussed above is that here the people

retain the sovereign authority. Rather than giving it away or selling it, they

let someone borrow it on the condition that they can recall it at any time.As long as some means is established for removing bad representatives from

office, it is unclear why this institution is incompatible with the terms

of the social pact. It is even less clear why this should be for the same reason

that sovereignty cannot be alienated because the above argument againstalienation does not apply; representation might be consensual in a waythat alienation could not. This leaves it very unclear why Rousseau argued


that the principles of his theory require that the people make their laws inperson. Indeed, these considerations are the core of Fralin's argument that

in fact direct democracy is not required by the terms of Rousseau's philos-ophy. He said, 'It is simply not true that an individual cannot authorize

another to will for him in the sense of making decisions on his behalf. Grantedthat there are risks in doing so . . . it is nevertheless important to distinguishthese pragmatic objections from the fundamental principles of the legitimate

state, and it appears that Rousseau failed to do so'.

In light of this objection, there is a very tempting way to read Rousseau's

argument. Above, I explained why he thought that there is no difference fora people between giving away its sovereignty and selling it because the new

sovereign could simply take back the purchase price and keep the sovereignty.

Perhaps, one might say, the same argument applies here. The people cannotrepresent their sovereignty because the representatives could use their author-

ity to take the sovereign power for themselves. If the Sovereign possesses allthe powers of the community it ought to possess the power of making itselfpermanently Sovereign. Maybe it was this fear that caused him to say that

sovereignty cannot be represented.I do not think this argument works, however, and I doubt it is what he

meant. To begin with, he argued that sovereignty must be consensual, so

unless the citizens agreed to it the arrangements would be null, for the reasons

discussed above. This implies that the citizens have no more or less reason tofear that legislative representatives will usurp their power than they haveto fear that their representatives in the executive branch will do the same.Furthermore, one of the conditions given to the legislative representativescould be that they must not attempt to usurp the ultimate power of the com-munity to decide who will represent them.

Even in light of all these difficulties, however, I think it is possible to discernthe basic direction of Rousseau's argument against representation. One canrecall that because the social pact stipulates that all of the associates alienate

all of their claims to the community under the guidance of the common good,

no one except the community as such can in the first instance possess the sover-

eign authority. Imagine, however, that the burdens of legislation are so great

that the people wish to rid themselves of it; and they hit upon the idea that they

might convince someone else to do it for them. While they realize it would be

irrational simply to give away that authority, they believe that they might

conditionally lend it to one part of the community, or to a group outside ofthe community, which they will call their legislative representatives. Underwhat conditions could they do so?

The only condition under which it would be rational for the whole commu-nity to lend its collective sovereignty to someone else is that they could be cer-tain that this representative body would reach the same decisions as the whole


community would have reached meeting in assembly. What makes this condi-tion necessary is not that the community's decisions are unquestionably cor-

rect; they are not. It is not even that the community's decisions are the bestpossible, which they might not be according to Gondorcet. It is necessarybecause the members of the community, in which everyone has given up

everything to the common benefit, would put themselves at risk by letting

some person or clique determine the community's will. This danger is contrary

to the original purpose of the social pact because it gives one person a rightover another that is not perfectly reciprocal, which violates the artificialequality that the contract was designed to create.

Thus, the question is irrelevant of which assembly, the popular or represent-

ative, would more likely discover the common good. Even if, from the per-

spective of a divine intellect, the representatives' laws expressed the commongood more nearly than those of the popular assembly, the point remains thesame. Because no human knows the common benefit with divine certitude,

the only condition under which it is rational for a people to represent

its sovereignty is that the representatives would in all cases choose what the

popular assembly would have chosen if they had voted on the matter. Butthe only way to know whether or not the representatives' decisions are in

fact the ones that the people would have made in assembly is for the people tomake them in assembly, and then to compare the results. The work of the

representatives is therefore redundant, and their existence as a political bodyis made irrelevant

4

Rousseau's theory of popular sovereignty raises a final perplexing question.He argued not only that the law must come from all the citizens, but alsothat it must apply equally to all citizens. He said that, 'by the nature of thepact every act of sovereignty... either obligates or favors all citizens equally'(S 63). This does not imply that unanimity must exist for every stature, onlythat the law itself, if it is to be a candidate for the approval of the majority,must apply equally to everyone. This raises the question, however, of what

equality means in this case. At the extreme, some measures would be obviously

illegitimate. The Sovereign could demand that a particular citizen forfeit

his or her property to another citizen or to the community. Furthermore, the

Sovereign could not discriminate against any one faction of the citizens;

it could not require that the inhabitants of one neighbourhood make a sacrifice

that is not demanded of all equally, although the government or magistratescould do so. What of more complicated cases, however, such as tax law? In thiscase, one could argue for at least three kinds of equality. The first says that the


law is equal when everyone pays the same amount in taxes; the second saysthat the law is equal when everyone pays the same percentage (of income,

or net worth, or some such thing); the third says that the law is equal when

everyone is allowed to keep the same amount of money. Superficially, Rous-

seau's well-known hatred of economic inequality suggests that he would havefavoured the third option, or at least the second, and the consequent levellingthey would bring. But the issue is far from clear.

His analysis of the evils of wealth is spread across all his writing. Two points

are especially relevant to The Social Contract. First, he argued that wealth drawsthe attention of the rich toward vanity and away from citizenship; in a famouspassage from the 'First Discourse' he said, 'Let our politicians deign to suspend

their calculations in order to reflect on these examples, and learn once and for

all that with money one has everything, except morals and Citizens' (D 19).

Nothing in The Social Contract or his other later works suggests that he changed

his view on the corrosiveness of wealth to citizenship. As Robert Wokler notes,one of the principles of his Project for a Constitution for Corsica was that, 'no one

should enrich himself'. 20 Second, he argued that extremes of wealth and pov-

erty in a single community dissolve the people's sense of the common good,after which they dissolve the common good itself. He said that initially citizensfeel that laws that benefit the wealthy are bad for the poor, and vice versa;next, they see themselves not as a people, but as two nations sharing one

land. 'Do you, then, want to give the State stability?' he asked, 'bring the twoextremes as close together as possible; tolerate neither very rich people norbeggars. These two states, which are naturally inseparable, are equally fatal

to the common good' (S 78, note).He offered an even more explicit discussion of the issue in his article on

'Political Economy', which contains a passage on the French head tax. Here,arguing against Montesquieu, he seemed explicitly to endorse some kind ofgraduated taxation, although he did not specify how progressive it should be.He said, 'But if taxation by head is strictly proportioned to individuals'

means, as what in France is called capitation could be, and is thus both real

and personal; then it is the most equitable and hence the most conformable to

freemen' (S30).Yet the issue is more complicated than it appears because, on a closer read-

ing, Rousseau's comments about wealth were ambivalent. While he argued

for all of the disadvantages of inequality that I mentioned, he also claimedthat a certain kind of aristocracy is the best form of government. His argumenthere is complex, and is based on his idea that a government is stronger thefewer magistrates it has. Nonetheless, he neither ignored nor condemned

the place of wealth in defining this aristocracy. He said that, 'while this form[of government] involves a certain inequality of fortune, it does so primarily sothat in general the administration of the public business be entrusted to those


who can best devote all of their time to it' (S 94). His meaning in this last sen-tence must be clear. He did not say that if there are to be rich people, theymight as well have the administration of the state because then at leastthey will be tied to their public responsibilities instead of to themselves alone.He argued rather that the government should be in the hands of those whohave the leisure to attend to it. Thus if aristocracy is the best form of adminis-tration, and it implies inequalities in wealth, then one cannot say unequivoc-ally that such inequalities are an evil.

However, none of this goes to the root of the problem. The above questionsconcern whether it is advantageous to have wealthy people in a community;yet the issue is not one of prudence as much as it is one of principle. From thebelief that economic inequality is bad for a community, one cannot simplyinfer that any law which diminishes this inequality is legitimate because as Ihave discussed Rousseau's theory put limits on the Sovereign's power. Onecan see, for example, that a measure passed by the assembly stipulating thata certain wealthy citizen be robbed of his property would violate the principlethat the law must apply equally to all, even if such a measure would reduceeconomic inequality. This simple point demonstrates that even if Rousseauwas correct that inequality of wealth is bad for a community, his theory ofsovereignty did not allow that a community can do anything the majoritywants in order to establish parity.

This last observation puts the question in the proper light. Would some-thing like a progressive income tax be partial? Even assuming that it is pruden-tially advisable, does it violate the generality that a law must possess? Theanswer now seems to be yes. One might argue that a graduated tax is an actof partiality by the poor against the rich because in it the majority passes ameasure that does not apply equally to all the members of the community.This was his definition of an illegitimate law and it seems to settle the matter.There are further issues, however, because such a measure does not in fact bindany definite person or group, as it would if the legislature tried to take themoney of a specific citizen. It affects only those who happen to be in the classof people with incomes over a certain amount at the time the law is passed.As citizens increase and decrease their incomes, the individuals in the classwill change. Therefore, one could argue that as the law is not partial againstanyone in particular it is not partial at all.

The argument's plausibility hinges on the idea of what one might call a flex-ible class, by which I mean a set defined by an attribute that is contingent andchangeable. If the class of citizens that is discriminated against were definedby an attribute that cannot change, then the measure that prescribes the dis-crimination would be necessarily partial. For example, a statute that placesextra burdens on a minority defined by place of birth could not be a declara-tion of the general will. But, if the class discriminated against is instead 'the


wealthiest 20 percent of the community', then the statute might be a declara-tion of the general will because the legislation names no particular person orgroup. The idea of solving the problem of partiality by substituting flexible

classes for individuals or fixed classes has its own difficulty, however. Imaginethe case in which the majority in a community of 600 people wishes to

rob the three wealthiest people of their possessions and to distribute theirgoods among the remainder of the citizens. If the majority simply passes astatute stipulating that this act of violence be committed, then the measure

would be obviously illegitimate, civil society would dissolve with respect to

the three people, and they would in that moment find themselves tossed backinto the state of nature, giving them the prerogative, if not the means, topreserve themselves by counter-violence against the depredations of their

former compatriots.What if, however, the majority is clever enough to pass an ordinance saying

that the class of the richest one-half of 1 per cent of the people will be robbed of

their possessions? It happens that the three people in question make up the

richest one-half of 1 per cent. If it is legitimate for a community to discrim-

inate against a flexible class, then it appears that this measure is a possible

declaration of the general will. If so, the consequence is obvious. The majoritycan do whatever it wants, without sanction, by formulating its whims in the

language of flexible classes. If the three richest people are smart then theywill immediately give away enough money to make themselves one pennypoorer than the sixth richest person, with the result that the people who werethe fourth, fifth, and sixth richest will find themselves the victims of the major-ity's depredation. Yet, the leaders of the majority could then formulate a newpiece of legislation, still in the language of flexible classes, allowing them to dotheir wishes with respect to the first three, or anyone else. One might wish tosolve this problem with the convenient device of saying that it is a question ofadministration, not of sovereignty. The government can decide who shouldpay what taxes, the legislature need not concern itself with the details, just as

Rousseau said that making war and peace is a matter of administration

beneath the Sovereign's purview (S 58). The Sovereign can say, 'People shall

be taxed equally and at the level appropriate to the common benefit', leavingit to the administration to determine what equally and appropriate mean.

However, this solution leaves the problem of how the Sovereign can know

whether the administration has set this level correctly.

A final observation is required concerning Rousseau's theory of democracy.While he argued that the people must vote on their own laws, he also said thatonce the legislature is in session the majority can pass a law over the objections

of a minority (S 124). This means that although each associate must agree tobe part of such a system, each will not necessarily agree with every law that ispassed within that system. One of the odd things about Rousseau's theory is


that he insisted that the people must make all of their laws in person, and thatthis kind of direct democracy is a necessary consequence of the terms of thesocial pact; yet he allowed for majority-rule within the assembly, implying

that in the worst case almost half of the citizens could be compelled to obeyprinciples that they disagree with. While I do not think this is a contradiction,

for reasons I will discuss below, it does bring out important features of histheory. I argued above that he traded off the convenience of representation

for the principle of direct democracy; but now it is clear that he also traded

off some democracy for the convenience of majority-rule.Wokler tries to mitigate this by saying that the legislature can never really

be coercive against a minority because it is always the executive that carriesout the law. He says that, 'the exercise of force over disparate persons is

reserved exclusively for a nation's government. Rousseau's sovereign never

implements its own laws and never punishes transgressors against it, nor,indeed, forces anyone to be free'. However, his claim that absolute popularsovereignty is not repressive because it cannot punish individuals is an argu-ment by equivocation, because while Rousseau said that the Sovereign cannotpunish individuals, the government can and must, and is justified when

it does so only because its actions implement the dictates of the Sovereign.To argue that the distinction between sovereign and administration makes the

Sovereign innocent of using force is to argue that a criminal who tells his

henchman 'Kill my enemies, and you know who they are', is less responsiblefor the following murders than the one who says, 'Kill these five men'.

The reason that the use of force by the government does not return civilsociety to the state of nature is that the force compels people only to obey thesocial pact to which they have previously obligated themselves. Rousseauargued that when the government makes people obey the law, it makes themobey themselves, both because they have had a say in making the law andbecause the social pact to which they have assented binds them to it. The abso-lute alienation that is the essence of the social pact implies that under certain

circumstances the community can demand anything of anyone, although thislast point must be understood in light of Rousseau's many qualifications aboutwhat the circumstances are. The Sovereign's laws are necessarily general, they

are also necessarily absolute and backed by deadly force. If they were not, they

would be futile. To obscure the issue is to distort the theory of sovereignty thatis at the centre of The Social Contract.

Rousseau's theory of direct democracy has received criticism from many dif-ferent directions. The theory is certainly strange. The most obvious problem is

5


that it implies that no state can have a larger number of citizens than can prac-ticably meet to discuss the law. He said that he planned to discuss this issue inthe sequel to The Social Contract. Although he never completed the work, itseems that his plan would have involved confederations of very small states(S 111, 116). Whatever his solution, this concern makes it hard to know whathe might have said about the modern nation-state with its millions or billionsof citizens. It appears at least that if he were serious in saying that the terms ofthe social pact are invariable (S 50), that they are the only source of obligation(S 44), and that they imply direct democracy (S 114), then no modern nation-state can claim allegiance from its citizens. At one point he seemed to say asmuch himself in commenting, 'Since the law is nothing but the declaration ofthe general will, it is clear that the people cannot be represented in its legislat-ive power . . . This shows that, upon closer examination, very few Nationswould be found to have laws' (S 115). This is somewhat discouraging. I willadd, however, that if Rousseau happened to be correct about the nature andfoundations of political obligation, and correct therefore about direct demo-cracy, he cannot very well be held responsible if people have decided toorganize themselves around other principles than justice and duty.

A more substantial set of objections to Rousseau's theory of democraticfreedom was raised by Benjamin Constant. 23 Constant made his criticisms in afamous speech of 1816 called 'The Liberty of the Ancients Compared with thatof the Moderns'. His thesis was that although the citizens of modern republicsare as intense in their love of freedom as were the ancient Greeks and Romans,these two groups, the moderns and the ancients, in fact loved two differentthings. Today people think of freedom in terms of individual rights, whereasin ancient times they thought of it as collective self-rule. Regarding modernfreedom, he said that it is the right 'of everyone to express their opinion,choose a profession and practise it, to dispose of property, and even to abuseit; to come and go without permission, and without having to account for theirmotives or undertakings. It is everyone's right to associate with other indi-viduals'. 24 Among the Greeks and Romans, on the other hand, liberty meantdemocracy; it 'consisted in exercising collectively, but directly, several parts ofthe complete sovereignty; in deliberating, in the public square, over war andpeace; in forming alliances with other governments; in voting laws, in pro-nouncing judgments'. 25 In other words, moderns think of liberty in terms ofindividual rights whereas the ancients thought of it in terms of collective anddirect self-government. Although different, they are both meaningful senses ofwhat it means to be a free people, which correspond to the two kinds of free-dom I have discussed so far, civil freedom and democracy.

Constant went on to argue that these two kinds of freedom are in fact incom-patible. While his reasoning is complicated, two of his arguments are espe-cially relevant to Rousseau. The first reason that democracy is incompatible


with civil liberty is that the only way to leave citizens the leisure to attendcontinually to public affairs is to have a slave population to do the work, some-thing that is obviously inconsistent with modern liberty to the degree that it isdescribed in terms of universal rights. Constant defined ancient liberty notsimply as a general concern with public affairs but as actual self-rule, whichcan be accomplished only when the whole body of citizens has the time toadminister the state. Thus, 'the abolition of slavery has deprived the freepopulation of all the leisure which resulted from the fact that slaves took careof most of the work. Without the slave population of Athens, 20, 000 Athenianscould never have spent every day at the public square in discussion'. Rous-seau, by the way, made the same argument saying, 'What! Freedom can onlybe maintained with the help of servitude? Perhaps. The two extremes meet.Everything that is not in nature has its inconveniences, and civil society morethan all the rest' (S 115).

Constant also suggested another reason that a democratic state cannot offerbroad individual liberties, although his argument is less explicit in this case.He suggested that democracy requires a very specific kind of citizenry inorder to function and thus cannot offer too much individual freedom. Thepeople must be public spirited, informed, patriotic, skilled in analysis anddebate, and willing to sacrifice themselves for the public good. He said, 'Theancients. . . had no notion of individual rights. Men were, so to speak, merelymachines, whose gears and cog-wheels were regulated by the law. The samesubjection characterized the golden centuries of the Roman republic; the indi-vidual was in some way lost in the nation, the citizen in the city'. Yet thisrequirement is obviously incompatible with broad individual liberty. Peoplewho must possess such a specific kind of character cannot by the nature ofthe case be free to believe, feel, and desire whatever they want; they cannot, inother words, have modern liberty. This same issue appeared in Rousseau in hisdiscussion of the Lawgiver.

There is of course a further difficulty in the relationship between civilliberty and democracy, which Constant does not say much about but which isimportant to understanding Rousseau. Democracies often put strict limits onthe civil freedoms of the people they claim to rule independent of perceivedpublic goods. Sometimes these are uniformly imposed, such as in Rousseau'sGeneva where even the ruling classes had very little in the way of civil liberties,whereas other times these limits apply only to a subgroup of the population,such as laws that discriminate against women or minorities. The point is thesame in both cases, however. Democratic governments often choose not toallow broad individual liberties; indeed, Talmon has argued that extremepopular sovereignty leads inevitably to totalitarianism. " Thus, it seems thatpeople who wish to defend both individual liberty and democracy must putthem in a rank ordering and decide which should be sacrificed to the other.


This is a serious problem, which has caused some philosophers to ask whetherliberal democracy is a self-contradictory theory of government. 30 And it is noteven to ask the more fundamental question, posed by Carl Schmitt, of whatliberal democrats should say about a state that democratically chooses nolonger to be governed democratically.

In sum, Constant argued that because democracy requires slavery andbecause it demands that the people be moulded into citizen-machines, itcannot coexist with broad individual freedom. What is very illuminating inthis is the severe fault that Constant found with Rousseau, even when theyseem to agree in all principles concerning individual rights and democracy.To put it simply, he accused Rousseau of trying to rekindle ancient liberty inthe modern world with disastrous results. Constant believed that people of themodern world must be content with individual liberty and not try too much toreconstitute the democracy of ancient times. Changes in communication,trade, and warfare, along with the progress of the idea that all people areworthy of equal respect, have made it impossible to return to small, inde-pendent republics that rely on slavery. He said, 'we can no longer enjoy theliberty of the ancients, which consisted in active and constant participationin the collective power. Our freedom must consist of peaceful enjoyment andprivate independence'. 32 Furthermore, he argued that the attempt to reinsti-tute direct democracy could come only at the terrible price of undoing themodern nation-state, commerce, and individual liberty.

He claimed against Rousseau that the latter's theory according to which thepeople must vote personally for their own laws was an attempt to resurrectancient liberty in the modern world. He said, 'I shall show that, by transposinginto our modern age an extent of social power, of collective sovereignty, whichbelonged to other centuries, this sublime genius, animated by the purest loveof liberty, has nevertheless furnished deadly pretexts for more than one kind oftyranny'. Having participated in many tumultuous years of French politicallife at the turn of the nineteenth century, Constant was in a better positionthan most to gauge the influence of Rousseau's theories. Yet, in terms of whatRousseau himself intended, I am not sure that he is correct. For Rousseau'sdefence of democracy against the claims of individual liberty was extremelynuanced and qualified.

To begin with, Rousseau was himself concerned with preserving a domainof civil liberty within which people could pursue their own interests and pleas-ure, as I tried to demonstrate in the last chapter. Yet Constant was right insensing that he and Rousseau balanced things in different ways; and I thinkthis difference puts the meaning of Rousseau's theory of democratic freedomin a clear light. For if individual liberty and democracy are both good things,and if they are inherently in tension with one another, as both thinkersbelieved, then any political philosophy ought to provide an account of which


should be sacrificed to the other and when. The easiest way to understand thedifference between Constant and Rousseau is that the former was more willingthan the latter to sacrifice democracy for the sake of individual liberty. Yet

Rousseau did not go to the other extreme either; he did not simply sacrificeindividual rights to democracy. In fact, just as his theory of civil liberty

attempted to reconcile a robust defence of individual rights with a plausibletheory of sovereignty, so his account of democracy tried to reconcile thatsame theory of rights with the need for collective self-government.

While readers must decide for themselves whether one should err on the sideof individual liberties or democracy, I should say a few last things to clarify

Rousseau's position. The first is that his defence of democracy was highlyqualified. The most obvious limit, which I mentioned at the beginning, was

that he recommended democracy only for the framing of legislation; he

argued that all other governmental functions should be delegated to represen-

tatives, which means that his theory does not call for the people to be perpe-

tually assembled to attend to public affairs. Furthermore he defended a view

of civil liberty that was much more robust than anything found in ancientpolitical philosophy. This shows that Constant was wrong in suggesting that

Rousseau wished to return the modern world to the Greek city-states. Further-more, Constant and many modern readers criticize Rousseau's theory of

democracy as if it were something he chose because he liked it, as if it were amatter of taste. It is hard to know what to make of this kind of objection, how-

ever, because Rousseau himself, at least, believed that the argument for direct

democracy was a necessary consequence of the terms of the social pact, which

were themselves necessary because the world is as it is. So, I do not know whatsense it makes to blame him for his conclusion. He may have been wrong, ofcourse; but even if he was, it was not exactly a moral failing given that he seemsto have tried his best and done better than most to discover the foundation ofobligation and political liberty.

The last point I will mention is that Constant and Rousseau agreed on onefurther issue, which has consequences for how one evaluates his theory ofdemocracy and individual rights. Both thinkers argued that the greatestthreat to a well-ordered society is the indifference of its citizens. Human

nature is such that people with power tend to use it to their own advantage;

so that if the people are not vigilant toward their leaders then the government

will become corrupt. Although Constant argued that people in the modern

world must be satisfied with individual rights instead of political participa-

tion, he defended representative democracy, as opposed to monarchy, because

it gives the people some measure of oversight of their rulers. Yet this raises the

question of whether the citizens' increasing obsession with the enjoyment oftheir private rights renders them less willing and able to attend to publicaffairs. Even Constant worried about this; he said, 'The danger of modern


liberty is that, absorbed in the enjoyment of our private independence, and in

the pursuit of our particular interests, we should surrender our right to share in

political power too easily. The holders of authority are only too anxious to

encourage us to do so'.34 In this regard, Rousseau and Constant were both

especially concerned about the role of commerce, which they thought tended

to detach people further from the pubic good. The question remains whether

Constant's representative system grounded on individual rights requires suffi-

cient participation to keep its citizens knowledgeable and attentive enough to

restrain the corruption of politicians. I need not add that this is a vexed issue

today in many of the world's liberal, commercial, representative democracies,

whose citizens worry that, as Michael Sandel says, 'the liberal vision of free-

dom lacks the civic resources to sustain self-government'.

Notes

1. For a good account of these events see, James Miller, Rousseau: Dreamer of Demo-cracy (New Haven: Yale University Press, 1984), 78f.

2. John W. Chapman, Rousseau - Totalitarian or Liberal?, Columbia Studies in theSocial Sciences (New York: Columbia University Press, 1956), 51.

3. Chapman, 54.4. Shklar, 177.5. Bernard Grofman and Scott L. Feld, 'Rousseau's general will: a Condorcetian per-

spective', The American Political Science Review, vol. 82 no. 2 (June 1988), 567-76.6. For a fairly clear summary of the mathematics see, Andrew Levine, The Politics of

Autonomy: A Kantian Reading of Rousseau's Social Contract (Amherst: University ofMassachusetts Press, 1976), 67-8.

7. Aristotle, Politics, 66 (1281 a42~b5).8. Grofman and Feld, 570.9. Grofman and Feld, 570.

10. David M. Estlund, Jeremy Waldron, Bernard Grofman, Scott L. Feld, 'Democ-ratic theory and the public interest: Condorcet and Rousseau revisited', The Amer-ican Political Science Review, vol. 83 no. 4 (December 1989), 1335—6 (footnote 1).

11. Estlund, Waldron, Grofman, Feld, 1322.

12. Aristotle, Politics, 66 (1281bl5-20).13. Estlund, Waldron, Grofman, Feld, 1335.14. For a more extensive criticism of the epistemic justification of democracy see,

Samuel Freeman, 'Deliberative democracy: a sympathetic comment', Philosophyand Public A/airs, vol. 29 no. 4 (Fall 2000), 371-418.

15. For an interesting discussion of how a correct voting procedure might allowa representative assembly to duplicate the will of the whole body of citizens, seeChapman, 120f.

16. Richard Fralin, Rousseau and Representation: A Study of the Development of HisConcept of Political Institutions (New York: Columbia University Press, 1978), 11.


For another argument to the effect that Rousseau defended democracy because

he thought it enhanced social sentiment see, Joshua Cohen, 'Reflections on

Rousseau: autonomy and democracy', Philosophy and Public Affairs, vol. 15 no. 3

(Summer 1986), 275-87.

17. Fralin, 84.

18. For a good discussion of this issue see, Robert Wokler, 'Rousseau's Pufendorf: nat-

ural law and the foundation of commercial society', History of Political Thought,

vol. 15 no. 3 (Autumn 1994), 373-402, although he sometimes seems to confuse

representation with alienation.

19. Fralin, 84. For a more detailed presentation of the same conclusion see, Ali A.

Mazrui, 'Alienable sovereignty in Rousseau: a further look', Ethics, vol. 77 no. 2

(January 1967), 115.

20. Robert Wokler, 'Rousseau and his critics on the fanciful liberties we have lost',

Rousseau and Liberty, 198.

21. See my forthcoming article, 'A paradox of sovereignty in the Social Contract'.

22. Wokler, 'Rousseau and his critics', 193.

23. For a comparative study of Rousseau and Constant on democracy see, M. E.

Brint: 'Jean-Jacques Rousseau and Benjamin Constant: a dialogue on freedom

and tyranny', The Review of Politics, vol. 47 no. 3 (July 1985), 323-46.

24. Benjamin Constant, 'The liberty of the ancients compared with that of the mod-

erns', Constant: Political Writings, ed. Biancamaria Fontana, Cambridge Texts in

the History of Political Thought (Cambridge: Cambridge University Press,

1988), 310-11.

25. Constant, 311.26. Constant, 314.

27. Constant, 312.

28. For an interesting response to the supposed opposition between democracy and

civil freedom see, Quentin Skinner, Liberty Before Liberalism (Cambridge: Cam-bridge University Press, 1998), 59-99.

29. J. L. Talmon, The Origins of Totalitarian Democracy (New York: Norton, 1970),38-49.

30. For a review of the issue see, Jiirgen Habermas, 'Constitutional democracy:

a paradoxical union of contradictory principles?', Political Theory, vol. 29 no. 6

(December 2001), 766-81. See also in the same volume, Alessandro Ferrara,

'Of boats and principles: reflections on Habermas's "Constitutional demo-

cracy" ', 782-791; and Bonnie Honig, 'Dead rights, live futures: a reply to Haber-

mas's "Constitutional democracy" ', 792-803.

31. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy, Studies

in Contemporary German Social Thought (Cambridge, Mass.: MIT Press,

32. Constant, 316.

33. Constant, 318.

34. Constant, 326.

35. Michael Sandel, Democracy's Discontent: America In Search of a Public Philosophy

(Cambridge, Mass: Harvard University Press, 1996), 6.

1988).

Chapter 5

Moral freedom

1

The final kind of freedom that Rousseau discussed in The Social Contract ismoral freedom, which is in many ways the most difficult and interesting

aspect of his theory. It is also one of the more singular parts of his overall polit-

ical philosophy. He defined moral freedom as autonomy, or 'obedience to thelaw that one has prescribed to oneself (S 54). This kind of freedom is in some

respects similar to civil freedom in as much as it refers to the power of indi-vidual citizens to act according to their own choosing without coercion or hin-

drance. The difference is that civil freedom refers to the absence of externalimpediments to alternative actions whereas moral freedom concerns, at leastin part, internal impediments. In the Introduction I used a pair of examples to

illustrate the point; and now, based on the foregoing discussion of the state ofnature, the social pact, civil freedom, and democracy, I can elaborate some-what on these examples. In the first example I mentioned an alcoholic whogenuinely believes that his life would be better if he stopped drinking, yetfinds himself unable to choose sobriety. Imagine further that he lives in a com-

munity that neither forbids nor compels its citizens to drink alcohol. Thisperson possesses civil freedom in the sense that the laws are silent, whichmeans that he has a legally protected space to do what he wishes without inter-ference from others. Yet he does not possess moral freedom, in Rousseau's useof the term, because he is unable to live according to his own judgment about

what is good.This distinction is important in Rousseau's philosophy because it shows that

one can be genuinely free in the civil sense and yet at the same time not be free

in the moral sense. The man's alcoholism does not limit or compromise his civilfreedom, which is as complete as it could be as far as the drinking of alcohol is

concerned. But he is also not free in some meaningful sense, because even in

light of his civil liberties he still cannot do what he wants to do. This is whatthe theory of moral freedom tries to capture. The point is that this man is a

slave to his passions, as Rousseau sometimes says, and that these passions canlimit his choices just as much as external impediments can. This is the reason

that Rousseau could not agree with those philosophers such as Hobbes whowished to define freedom simply as the absence of external impediments. 1

Moralfreedom 93

The absence of such impediments may perhaps be one aspect of freedom; butsomething about human freedom is left out when it is defined so narrowly.Indeed, the 'absence of external impediments' fails as a definition even ofcivil freedom taken by itself, as becomes clear when one realizes what isimplied by Hobbes's theory. If freedom is simply the absence of external im-pediments then one must say that, when the secret police arrive in the middleof the night to kidnap a citizen, he is 'free to be kidnapped' because there areno external impediments to his abduction. This way of defining the term seemsto drain too much out of the idea of freedom.

This point was made by Berlin in the revised version of his famous essay ontwo concepts of liberty. Berlin had originally defined freedom as 'the absenceof obstacles to the fulfillment of a man's desires'; yet he soon realized that evenon this definition, which is richer than that of Hobbes, a community could bemade freer by limiting the number of things that its citizens wanted to do. 'Forif to be f r e e . . . is simply not to be prevented from doing whatever one wishes,then one of the ways of attaining such freedom is by extinguishing one'swishes'. For this reason he redefined this kind of freedom by saying, 'Theextent of my social or political freedom consists in the absence of obstaclesnot merely to my actual, but to my potential choices - to acting in this orthat way if I choose to do so'. This is precisely what Rousseau meant by theterm civil freedom, which consists in legally protected options for living onekind of life or another according to one's wishes. Yet, Rousseau did notleave it at that because a person could be free in the civil sense, and also in thedemocratic sense, and yet not be free in the moral sense.

In the Introduction I offered a second example to illustrate the nature ofmoral freedom, which although it is useful, now requires significant qualifica-tion. Imagine a person, I said, who deliberately breaks the law and goes toprison for the sake of raising awareness of an injustice. For the purposes of theargument let us also imagine that the political regime under which this personlives is something other than a democracy. This person obviously possesseslittle in the way of civil freedom because she is confined to a jail cell, whichmeans that she has very few options or, in Berlin's phrase, potential choices.She also does not possess democratic freedom. Yet there is a sense in whichshe does possess moral freedom, because it consists in obedience to one's ownjudgment. Having decided that the best thing for her to do is to be arrested andconfined to a cell, she does it; and in this sense she is obedient to a law that shehas legislated to herself. In this way moral freedom appears to be independentof the other kinds of freedom that Rousseau discussed, given that it seems aperson can be morally free regardless of her civil liberties and of the politicalarrangements under which she happens to live. Indeed, one hears echoesin Rousseau's theory of the Stoics, who argued that a person can be free atany time because freedom concerns internal dispositions more than it does


outward circumstances. But what then is one to make of the relationshipbetween moral freedom, civil freedom, and democracy in Rousseau's philo-sophy? After all, the point of Berlin's criticism of Rousseau is that an excessiveinterest in moral freedom can lead to an erosion of civil liberties because if onecan be free even in a jail cell then there is no need to worry about 'obstacles topotential choices'. Moreover, Berlin argued that since moral freedom, unlikecivil freedom, consists not merely in having options but in a substantive way ofliving, an interest in moral freedom can easily lead to a defence of oppressivegovernments which, in Rousseau's famous phrase, force people to be free(S 53). 4 And all of this leaves open the question of the relationship betweenthese two kinds of individual freedom on the one hand and the collective free-dom of a democratic community on the other.

To understand Rousseau's theory of moral freedom correctly a number ofdistinctions and qualifications are required. To begin with, Berlin is right in atleast one thing. There is no question Rousseau believed that moral freedom is ameaningful and important sense of what it means to be free; nor is there anydoubt he believed that moral freedom can be at odds with civil liberty. Yetthere are many aspects to his theory that Berlin and most other critics ignoreand that, taken together, give his theory of moral freedom a different charac-ter than is usually attributed to it. The most unusual part of Rousseau's view,and one that many scholars misunderstand, is that he believed a person couldachieve moral freedom only within political society and, in particular, onlywithin the social pact that he described; a person cannot be autonomous onhis own or independent of his circumstances. This is the important differencebetween his philosophy and the familiar ethic of the Stoics. It also makes irrel-evant most of the common objections to his theory of moral freedom, whichare based on a misunderstanding of its nature and conditions; and it gives adifferent shape to his overall theory of freedom.

To see why moral freedom is possible only in political society, one need onlyrecall that, while moral freedom is obedience to a law that one legislates foroneself, in the state of nature there is only one such law that a person can le-gislate, namely the social pact itself. This was his point in saying that 'theclauses of this contract are so completely determined by the nature of the actthat the slightest modification would render them null and void' (S 50). I dis-cussed in Chapter 2. 2 that in the state of nature any limit that one puts onone's future choices is irrational because it deprives one of things that mightbe necessary later for one's self-preservation. This is what he meant by ask-ing, 'since each man's force and freedom are his primary instruments of self-preservation, how can he commit them without harming himself, and withoutneglecting the care he owes himself?' (S 49). A law that one prescribed tooneself would limit one's future choices in the same way. This is the reason thatthe social pact can have only one form, which is to say that there is only one

Moral freedom 95

law that people in the state of nature can legislate for themselves. These con-siderations do, however, show the limits of the example I used above in whicha person breaks the law and accepts punishment. Given that the social pactitself is the only law that one can legislate for oneself, breaking the law, andthereby breaking the social pact, could never be an act of moral freedom.Yet, this reasoning applies only to citizens of the kind of regime that Rousseaurecommended, which is perhaps nowhere to be found in the world.

There are two other common ways of interpreting the relationship between

moral freedom and political society in Rousseau's philosophy. Some scholars,such as Maurice Cranston, argue that Rousseau thought moral freedom couldbe attained anywhere by anyone, independent of the state. He says, 'Unlike[democratic freedom], which could only be enjoyed under a well-orderedrepublic, moral freedom was something that could be attained anywhere'. 5

Others, such as Joseph Reisert, argue that moral freedom can only be achievedin the state; but they think it can be any state, it need not be one that is built onthe particular social contract that Rousseau described. 6

The problem with both interpretations is that they fail to appreciate Rous-seau's claim that the terms of the social pact are necessary and immutable.In as much as this is the case, then in the first instance there is only one law thata person in the state of nature can legislate for himself. For this perspective,moral freedom certainly cannot be achieved on one's own in the state ofnature. Yet, it also shows that such freedom cannot be achieved in any givensociety. As I discussed in Chapter 1, Rousseau's narrow definition of whatmust happen to create a political society implies that most people are in thestate of nature, where moral freedom is impossible, even if they think thatthey are in a political society. This indicates that, on his view, autonomy iscoextensive with the well-ordered society that he proposed.

A further important part of Rousseau's theory concerns the question of whathe meant by calling this kind of freedom 'moral freedom', because the term'moral' has a very wide range of uses in his works. In this case, however, Ithink that the word indicates something close to its typical use today, when itis used to refer to principles of right conduct. Moral freedom has a closer con-nection to normative ethics than do the other kinds of freedom, a connectionthat is one of the most interesting and contentious parts of Rousseau's philo-sophy. The simplest way to approach the issue, I think, is to notice that sincepeople in the state of nature cannot legislate for themselves, there is only onething that might serve as the principle or guide of their actions. It is their pas-sions or desires. Because his theory of the state of nature is so rich, one should

2


not simplify too much about who exactly its inhabitants are. Yet it is clear thatbecause one cannot legislate for oneself in the state of nature, the only questionthat people can ask themselves about their behaviour is, what do I feel likedoing? These passions may be stronger or weaker, more or less destructivefrom case to case, but all decisions reduce to the weighing of one's feelings.

In civil society, this changes because people are obligated to ask themselvesnot, 'What do I want to do?' but, 'What am I supposed to do based on theterms of the social pact, which I have legislated for myself?' The possibility ofasking this question, a possibility that does not exist in the state of nature,shows that a change has taken place in the kind of being that humans are. Hisfull statement on the issue is as follows:

This transition from the state of nature to the civil state produces a mostremarkable change in man by substitutingjustice for instinct in his conduct,and endowing his actions with the morality they previously lacked. Onlythen, when the voice of duty succeeds physical compulsion and right suc-ceeds appetite, does man, who until then had looked only to himself, seehimself forced to act on other principles, and to consult his reason beforelistening to his inclinations [penchants] (S 53).

The background of his thesis is a familiar argument in the history of philo-sophy. It says that a person's passions or appetites derive ultimately from thecondition of that person's body; and, further, the body is a part of the physicalworld that is governed by the same natural necessity that governs all physicalprocesses. Thus, when one acts only according to one's passions, one is a kindof undifferentiated part of the material world, governed by the same naturallaws that apply to all other physical systems. In Rousseau's words, T see inevery animal nothing but an ingenious machine to which nature has givensense in order to wind itself up and, to a point, protect itself against everythingthat tends to destroy or to disturb it' (D 140). He assumed, further, thatactions that happen according to mere natural necessity have no moral signi-ficance. For example, if a child falls and gets hurt no one blames the force ofgravity, although they might blame the parents if they believe the parentswere free to prevent it. The implication is that the state of nature is inherentlyamoral because everything that happens is the product of natural necessityalone, and further that freedom is a presupposition of morality.

When people enter the social pact, however, the nature of their actionschanges. The social pact itself is an instance of self-legislation, which providesa new basis for action; it gives people a rule to follow apart from their particu-lar inclinations. Furthermore, once it is enacted the community will begin toframe laws, which further stipulate the citizens' obligations to one another andwhich may serve as further rules for action. The social pact thus enables people

Moral freedom 97

to act on the basis of their political duties rather than on the basis of drives that

nature has, so to speak, forced upon them. Rousseau argued that this poss-ibility raises each citizen out of the mere play of natural forces and endows

their actions with a kind of moral significance that they would otherwiselack, although he said little about how this transformation might actually

take place.This aspect of his theory of moral freedom has significant consequences for

how one understands his theory of the state of nature. If that state is inherently

amoral, then one must rethink the moral significance of the people that Rous-seau described in Part I of the 'Second Discourse'. Many readers take thisdepiction of the state of nature to be Rousseau's paradigm case of'the natural

goodness of man'. However, while such people may be benign, they cannot beRousseau's measure of moral goodness for the simple reason that they are not

moral agents at all; they have no principles to act upon except their inclina-

tions. Although it happens that their inclinations are relatively peaceful, thisdoes not alter the nature of the case. Indeed, the idea of the noble savage,which people often attribute to Rousseau, would be an oxymoron based on

the political theory of The Social Contract. Nobility, in the sense of obedience

to law or duty over convenience, is a term that has no reference in the stateof nature. This was his point in saying, 'To the preceding one might add to

the credit of the civil state moral freedom, which alone makes man truly themaster of himself; for the impulsion of mere appetite [du seul appetit] is slavery,

and obedience to the law one has prescribed to oneself is freedom' (S 54). The

doctrine implies, obviously, that everyone in the state of nature is a slave, in

the sense of not being a moral agent and not possessing moral freedom. Thusthere is reason to say that moral freedom is the most important kind of free-dom that political society offers because it changes the kind of being thathumanity is, making it morally significant and so apart from and above therest of nature.

This line of argument clarifies many of his comments about slavery, whichotherwise may appear quite puzzling. In a well-known sentence near thebeginning of The Social Contract he stated that in most societies, 'One believeshimself the others' master, and yet is more a slave than they' (S 41). Scholars

typically give this a kind of Hegelian interpretation according to which the

master becomes dependent on the slave for recognition. For example, Shklarsays, 'That is precisely how all amour-propre works; it subjugates the self in

response to opinion and creates a second self, which in turn subjugates other

men to these prejudices. This is why power itself is servile, when it depends on

public opinion, and why "the master of other men is no less a slave than they

are. " Master and slave both bear the chains of opinion'. 8 This is a subtle point,and perhaps a true one, yet it fails to capture the meaning of his theory, whichwas much simpler than she suggests.


The reason the master is a slave is that he is bound to the dictates of the over-bearing passions that have caused him to enslave his fellows in the first place.

Vanity might be among those passions, but so might greed, piety, patriotism,or anything else. To be a master in the state of nature, to have power over

others, means to have more ways of exercising one's passions, which is tohave only more complicated and onerous means of binding oneself to natural

necessity. This is the sense in which masters are slaves. One consequence is thateveryone in the state of nature is a slave, because everyone is a kind of prisoner

to their passions; the question of whether this force comes from the outside,from the power of a master, or from the inside, from one's passions is only of

secondary importance. Rousseau argued that outside of civil society onecannot legislate for oneself, which implies that one is in a domain of mere

force, which varies only in its intensity and unpleasantness, not in its nature.One must not overstate the case, however. Andrezej Rapacyznski among

others appreciates that the state of nature in The Social Contract is the conditionofferee. Yet, his work presents a new kind of false interpretation. Seeing that

in The Social Contract force is the essence of the state of nature, he adds things toRousseau's theory based on what he knows, or thinks he knows, about the nat-

ural sciences. He says, 'To go back to the state of nature meant for him primar-

i ly . . . to isolate those features of man which could be captured by a conceptual

apparatus similar to that used by Galileo and Newton. According to the spiritof his time, Rousseau viewed science as nominalistic and mechanistic'. 9 To say

this is to say too much. Leaving aside that, as far as I know, neither Galileo norNewton was a nominalist in the usual sense of denying the reality of universals,Rousseau's way of thinking about natural science was more complicated thanRapaczynski suggests and was probably influenced more by his early study ofchemistry and lifelong interest in botany than by the vague mechanism thatRapaczynski identifies. It is a simplification in any case. Rousseau's only com-mitment in The Social Contract, and the only one needed for the coherence of histheory, was that the world outside of political society is governed by the prin-

ciples of natural necessity, whatever they may be. To say simply that Rous-

seau's idea of causality was the same as Galileo's and Newton's is a disservice.

It leads one to infer things from their theories of mechanics and cosmology to

his theory of politics. In the absence of other evidence, these inferences are as

likely to bring one away from Rousseau's meaning as toward it.

By this point one might notice that a very complicated relationship existsbetween Rousseau's theory of moral freedom and his remarks on freewill.

Indeed, one may justifiably wonder whether the two terms are simply two

3

Moral freedom 99

ways of referring to the same thing. If this is the case, then his theory appears tobe contradictory because while he said that everyone has freewill (at leastpotentially) he also said that only the citizens of a properly constituted polit-ical society are morally free. While I believe that his theory is coherent, thedetails are quite subtle. As I mentioned in Chapter 3. 5, he defined freewill inthe following way: 'Nature commands every animal, and the beast obeys.Man experiences the same impression, but he recognizes himself free toacquiesce or resist; and it is mainly in the consciousness of this freedom thatthe spirituality of his soul exhibits itself (D 141). It is possible to see now thatthere is some ambiguity in this definition, for he could mean one of two things.At times he seemed to say that freewill consists in the power of deciding whichof one's inclinations to follow, while other times he seemed to say that it is thepower of ignoring one's inclinations altogether and of acting on purelyrational principles. In the passages I quoted from Emile he seemed to indicatethe latter; yet in his 'Second Discourse' he tended toward the former.

The example that Rousseau used in the 'Second Discourse' was food. Withobservations presumably drawn from his hobby of keeping pets, he noticedthat some animals starve to death rather than eat food for which they haveno natural instinct; a pigeon for example will waste away rather than eatmeat and a cat will starve rather than eat grain. Human beings on the otherhand can sustain themselves on food for which they have no instinctual attrac-tion because they can choose to heed or ignore those instincts (D 140-1).He said that freewill consists in this power and in one's consciousness of thispower. This case, however, is certainly not a matter of ignoring one's passionin order to heed the independent call of reason. A person has a desire to eat justas does a pigeon or a cat; the difference is that a person can reason about what toeat and then choose something other than that to which he is initially drawn.But the ground of the choice is still some passion or inclination. Freewill in thissense refers to the capacity to use and act upon prudential reason. This sense offreewill is much less ambitious than the one he appeared to defend in Emile,because it relies neither on the assumption that reason alone can motivatean action nor on the assumption that reason is a spontaneous faculty that isindependent of the system of causation that pervades the rest of the universe.

Regarding The Social Contract, the sense of freewill that he employed therewas much closer to the 'Second Discourse' than to Emile. In all three works he

said that people are free in as much as they act according to reason, but in thefirst two the kind of reason in question is simply the power of discovering how

to achieve the things that one desires. In these cases reason does not motiv-ate an action, it reveals how to fulfil some desire that is itself the motivation.

He argued in The Social Contract that the basis of political society is each party'sdesire to live a longer, more pleasant life than would otherwise be possible(S 49) and that its goal is the preservation of the contracting parties (S 64).


This is to say that the social pact begins in the passions of each of the associates.The important point is that they can discover, through prudential reason, theprinciples of association through which such persons may unite their powersfor the purpose of mutual protection. This is the social pact, and it is thelaw that one can legislate for oneself. These considerations in turn explainthe apparent confusion between freewill and moral freedom. Freewill, as thepower to decide which inclinations to follow based on prudential reason,is a power that is potentially open to anyone and which has no particular rela-tionship to political society. Autonomy, however, is possible only in polit-ical society because the social contract is the only law that one can rationallylegislate for oneself.

4

There are, however, a number of grounds for objecting to Rousseau's theory ofautonomy as a genuine theory of freedom. In his favour, I think most peoplewould agree that it is too simplistic to think of an individual's freedom only inthe negative sense of the absence of external obstacles to potential choices.This way of defining the idea ignores the ways that a person's own dispositionsor character can limit that person's freedom. This reasoning implies that aconcept of autonomy, or something like it, is required for a full theory ofhuman freedom. Yet, the odd thing about his theory is that while he insistedon the importance of moral freedom, it turns out that there is only one way tobe morally free, namely to assent to a social pact whose terms are invariable.Thus, freedom here designates an act that can have only one possible outcome,which seems like a strange kind of freedom to have. On a closer look, however,Rousseau's account implies no such equivocation or contradiction. As I dis-cussed, the social pact and its consequent laws are, on his view, rationallynecessary stipulations for entering into and preserving political society, andthey are based on the features of the state of nature. This truth is presumablysomething that the associates to the pact might see for themselves, otherwisethey would have no motivation for entering it. Thus, the necessity of the socialpact is based not in coercion but in the realization that the world is as it is andthat there are steps that one can take to make life more secure. That there isonly one possible social pact does not compromise Rousseau's claim that itsadoption is an act of autonomy, because the associates could see that it is therational course of action based on their own desire to leave the state of nature.

There is another difficulty with his theory, however, which concerns therelationship between moral freedom and democratic freedom. If, as I dis-cussed in the last chapter, the social pact commands each person to obey thegeneral will as expressed in a proper plebiscite, then in what sense does each

Moral freedom 101

individual citizen legislate for himself or herself? In other words, once the pactis established, each citizen is bound to obey the pronouncements of the Sover-eign, even when that citizen personally and explicitly disagrees with the meas-ure in question. In this case, the citizen appears not to be self-legislating butrather to be the victim of the tyranny of the majority, a condition that is a

reversion to the state of nature and far from the moral freedom that Rousseau

said was one of the greatest advantages of political society. Thus, even if aperson is morally free at the moment of assenting to the social pact, this free-

dom seems immediately to dissolve in his subordination to the will of themajority.10 This problem is significant because if the members of the social

pact lose their moral freedom in as much as they are compelled to obey the

majority when they disagree, then political society cannot sustain the eleva-tion in human nature that is supposed to be its distinctive feature. Yet, howcan one call autonomous that being who is forced to obey a majority with

which it disagrees?I think that Rousseau's philosophy provided an answer to this objection.

In the last chapter I mentioned that the people who enact the social pact

pledge themselves to be bound to the common benefit as determined by thecommunity as a whole, not as determined by each person individually. This

is the point of Rousseau's argument for democracy in the framing of the com-

munity's laws. One consequence is that the question of whether or not a parti-cular person agrees or disagrees with a particular decision of the assembly isirrelevant. The nature of the pact is that the people obligate themselves tothe common good as they, as a people, determine it; when each of them later

obeys the dictates of the assembly, they do nothing but obey themselves,regardless of their private opinion on the issue in question. This is the sense inwhich, 'The Citizen consents to all the laws, even those passed in spite of him,and even to those that punish him when he dares to violate any one of them'(S 124). There is nothing futile or contradictory in this doctrine; it followsfrom the nature of the social pact. Each citizen knows in advance that his orher will is not necessarily the general will, and that the will of the majority islikely to be closer to it. This is, in any case, the political system to which theindividual members have obligated themselves, as it is in Rousseau's view the

only one to which they can rationally assent. When, in political life, an indivi-

dual's opinion contradicts the community, then probably she is wrong; but,

even if she is correct, and the majority is wrong, it is of no consequence forhuman autonomy.

A third and final objection is parallel to one I discussed in the last chapter

concerning the tension between democracy and individual liberty. The issue

there was that a functioning democracy requires its citizens to have a specifickind of character; so, how is the cultivation of that kind of character com-patible with broad civil freedom? A similar issue arises with respect to moral


freedom. If moral freedom means acting according to one's own reason, how isthis compatible with a political system that requires citizens to think and act inthe narrowly defined way that Rousseau said is required for a successfuldemocracy? As Chapman argues, 'Intensification of social sentiment in theform of patriotism is fatal to his ideals of autonomy and responsibility. Theattitudes required for stability of his political system can be acquired by manonly in ways that preclude the release and exercise of his moral capacities'.I think that Rousseau's answer to this objection is the same as I discussedabove with reference to the question of individual liberty. Given that there isonly one law that a person can legislate for himself, which is the social pact, it isimpossible for that person's life as a citizen to diminish his autonomy, becausebeing a citizen is the only way to be autonomous in the first place. Conse-quently, anything that helps human beings to act according to that self-legislation, such as a carefully cultivated sense of public spirit, can only helpthem to be freer in the moral sense, although not necessarily in the civil sense.To encourage public spiritedness is thus not to diminish moral liberty but tosupply its condition.

Moreover, Chapman is wrong to say that Rousseau was 'capable of sacrifi-cing freedom and dignity to satisfaction in community life and values'. Thissacrifice is logically impossible because the latter is the condition of the former.Rousseau's argument was that without satisfaction in community life andvalues, there can be no stable political society; and without political society,there can be no moral freedom and thus no moral worth either. Chapmanadmits that 'transformation of self-love into social spirit through its fusionwith sympathy is a condition of the release of [some] moral potentialities'.What he does not realize is that if social spirit is required for people to obeythe general will then, according to Rousseau, it is the condition of the releaseof all moral potentialities, because autonomy is the foundation of moral life assuch. Given that freedom, and so morality, is found only in the properly con-stituted community, anything that pulls one away from duty, anything thatencourages people to be partial to their own good instead of their community,makes them less autonomous, and so less moral and less human.

Similarly, this was his point in saying that, 'whoever refuses to obey the gen-eral will shall be constrained to do so by the entire body: which means nothingother than he shall be forced to be free' (S 53). While readers never tire ofinterpreting this comment in sinister ways, his point was a simple one, whichshould be clear by now. Given that there is only one thing that a citizen canlegislate for himself, namely the social pact, there is only one way to achieveautonomy, which is to be a good citizen. Any citizen who breaks the commu-nity's law also breaks the social pact and thus, by the nature of the case, vio-lates the law that he has legislated for himself. To punish him for it is simply tofulfil the social contract that he had previously willed. Needless to say, the

Moral freedom 103

expression 'force to be free' refers only to moral freedom, not to civil freedom

or to democracy.This line of thought has important consequences for Rousseau's theory of

moral freedom. One is that being free, in the sense of being autonomous, hasnothing to do with feeling free. Once the social pact is enacted, self-legislationapplies more to the form of action than to the feelings of the agent. The criter-

ion for freedom is whether or not an action is in conformity with the law that

one has erected over oneself. If it is, then the act is autonomous on Rousseau's

definition. Thus, if the common good demands that an individual gives upsome of his or her property to the use of the community, the freedom that is

implied in this forfeiture has nothing to do with whether or not the person in

question wants to do it. Autonomy is defined by conformity to the law that the

person has self-legislated which, in the case of the social contract, binds that

person to the common benefit.This doctrine does not imply that when, for example, a male citizen is

ordered by the community's magistrates to leave his family, friends, and

home and go to the front in a war, that he in that moment wants to fight andpossibly die. If this man possesses a sane person's regard for his own existence

and for the blessings of domestic life, some part of him will not want to go, nomatter how patriotic he is. Rousseau's point is that what this man wants, along

with everyone else, is above all to get out of the state of nature, the means for

which is the social pact and its implicit duties, such as to risk death when thecommon good demands it. Consequently, if the man does go to battle he is free

because he is obeying the law he has legislated for himself; whereas, if he

dodges the draft, he is a slave because force, in the form of his feeling of appre-hension, has determined his actions. In the latter case, he simply gives up hiscitizenship and returns to the state of nature because his relationship to hisfellows has changed from one of duty to one of power, in which the so-calledcitizen accepts or shirks the rights and responsibilities of citizenship dependingon what is to his personal advantage.

A final aspect of Rousseau's theory of moral freedom concerns its relationship

to the practical philosophy of Immanuel Kant. To many readers, the moststriking thing about this theory is the degree to which it seems to anticipate

the philosophy of Kant and other German Idealists. Yet, I believe that the

similarities cause some interpreters, Ernst Cassirer most of all, to read facets of

the later thinker into the earlier in a way that distorts rather than explains histheory. Although Cassirer's interpretation is quite old, and although I believeit is incorrect, his way of reading Rousseau makes a number of issues extremely

5


clear. The crucial point is the relationship between reason and the passions inRousseau's theory of moral freedom. On Cassirer's reading, Rousseau meantto propose a moral theory that is essentially the same as Kant's, or at leastKant as Cassirer interprets him. He argues that Rousseau marked a new erain the history of moral philosophy because, 'Rousseau — in opposition to thepredominant opinion of the century — eliminated feeling from the foundationof ethics'. Gassirer eventually takes this interpretation to its logical conclu-sion by arguing that the dictates of the social pact are, like Kant's categoricalimperative, the spontaneous product of human subjectivity.

This goodness [of man] is grounded not in some instinctive inclination ofsympathy but in man's capacity for self-determination. Its real proof lies,accordingly, not in the impulses of natural good will but in the recognitionof an ethical law to which the individual will surrenders voluntarily. Man is'by nature good' — to the degree in which this nature is not absorbed in sen-sual instincts but lifts itself, spontaneously and without outside help, to theidea of freedom. 16

A number of contemporary scholars offer roughly the same interpretation ofthe place of moral freedom in Rousseau's philosophy, arguing that the crea-tion of such freedom is, for him, the ultimate purpose and justification of thestate. Frederick Neuhouser, for example, says, 'Thus, the most basic thoughtof Rousseau's political philosophy can be formulated as follows: The justifica-tion of the rational state resides in the fact that such a state plays an indispen-sable role in constituting human beings as bearers of free wills and is thereforeessential to the fulfillment of their true nature as free beings'.

This line of interpretation has a number of unexpected consequences,which Cassirer for one not only admits but also embraces. The most importantof these is that the social pact can no longer be seen as something intendedprimarily to facilitate human happiness. If feeling is eliminated from thefoundation of ethics, while reason, which is freedom, is put in its place, then thehappiness of the associates, which is a mere feeling, is of no consequencemorally or politically. 'Rousseau did not demand from the human communitythat it should increase man's happiness, well-being, and pleasure — nor did heexpect these benefits to result from the establishment and consolidation of afuture community — but that it should secure his freedom and thus restorehim to his true destiny'.

I believe that this Idealist interpretation of Rousseau's theory of moral free-dom is implausible; yet it clarifies a number of issues in his philosophy. To seewhy, one can begin by looking at a famous problem in practical philosophy,which I mentioned in Chapter 3. 5. Even if one grants that the categoricalimperative, or in Rousseau's case the social pact, is a spontaneous dictate of

Moral freedom 105

human subjectivity, the question of motivation remains. What causes one toobey this law? If it is a feeling, such as the feeling that reason is noble, or thatthe law is good for one, or that public utility is an admirable thing, or any otherfeeling, then one has obviously failed to reach the domain of freedom as Cas-sirer conceives it, because one's actions continue to be grounded in sentiment.Given a choice between an action that satisfies duty and one that contradictsit, the agent must be led by something to prefer duty or to prefer convenience.What could this something be if not a sentiment of some kind? But if it is asentiment, then even actions that conform to duty are 'absorbed in sensualinstinct' in a way that causes them to lose what was taken to be their distinctlymoral character.

As I noted before, this objection goes back at least to the early writings ofDavid Hume, who argued that there is no reason to prefer the scratchingof one's finger to the destruction of the world because reason is silent as to whatshould be pursued and avoided. This is the basis of his doctrine that reason isand must be a slave to the passions because the moral powers of reason stop atits ability to discover the means to those things that one feels one should placeas the end or goal of one's actions. " One should notice that if Cassirer is cor-rect in saying that Rousseau's theory of moral freedom is essentially Kantian,then the above objection to Kant has special force because Rousseau did noth-ing to explain how reason can replace passion as the foundation of humanagency. Kant, at least, offered the doctrine of'pure respect for the practicallaw' which, for all its difficulties, shows that he understood that there is some-thing to be explained. 20 Rousseau offered nothing of the kind. One is forcedon this reading to agree with those commentators who, like Andrew Levine,believe that Rousseau needed Kant to think his thoughts for him. 'The SocialContract itself evidence [s] a certain (unconscious) refusal by Rousseau topursue his thoughts to the limit, to the moral world order investigated inKantian moral philosophy. In this sense they represent a degeneration ofthe Kantianism that is the condition of their possibility'.21

A great deal of evidence exists against this reading, however. To begin with,a few facets of Cassirer's interpretation are undeniably false; and while theymay seem minor at first, they indicate the deeper problem. Gassirer is mis-taken when he says that, on Rousseau's view, humanity spontaneously liftsitself to the idea of freedom. For Rousseau, the idea of freedom, which in this

instance is self-legislation, means something different than for Kant. The onlyreason Kant was able to argue that pure practical reason spontaneously pro-duces the categorical imperative is that the latter is empty; it is the pure formof lawfulness.22 In Rousseau's case the analogue to categorical imperative isthe social pact itself, with its stipulation that each alienates all under the direc-tion of the common benefit. This is the law that each person erects over himselfor herself; yet it is far from empty. It is a prudential conclusion that one may


discover by investigating the state of nature. In other words, the law is whatit is because nature is what it is, which means that the moral law is not spon-taneous but rather mediated and empirical. Cassirer is also mistaken in hisconclusion that human happiness is irrelevant for civil society. Rousseausaid repeatedly and explicitly that the social pact is born from the humandesire to have a more felicitous existence. Civil life follows from each person's'preference for himself and hence from the nature of man' (S 62) and 'hasthe preservation of the contracting parties as its end' (S 64). This predilectionimplies not a hope for freedom, morality, duty, and nobility, but rather a hopeto continue one's physical existence in as commodious a fashion as possible.

Cassirer's interpretation of moral freedom leads him necessarily to the con-clusion that the moral law is a spontaneous product of human subjectivity, andthat happiness is unimportant to the purposes of the social pact. But the clearimplausibility of these conclusions demonstrates that something is wrong in hisgeneral approach to Rousseau's theory of moral freedom. Indeed, stayingcloser to what Rousseau said, one must conclude that while passion or senti-ment is the root of human agency in the state of nature, it remains the root inpolitical society as well. The individual's concern for her well-being is bothwhat brings the pact into existence and part of what sustains it once it hasbeen enacted. Of course, Rousseau's moral psychology was not a simplisticegoism. He granted that the concern for self might expand into a concern forfamily, or tribe, or community, and argued that it must so expand if the state isto last. But this emphasizes the point instead of diminishing it. The foundationof moral freedom is in the passions of the good citizen.23

But here a problem arises. The theory of moral freedom seems to saythat in civil society humans become free beings, and so moral beings, onlybecause they replace reason with sentiment, thereby lifting themselves fromnature's meaningless play offerees into the realm of autonomy. If one mustconclude that passion is the foundation of action in civil society, then the dif-ficulty is obvious. The citizens of a properly constituted republic seem to beslaves as much as the residents of the state of nature because all are governedby appetite. Moral freedom is a chimera; and humanity has failed to gainthe nobility and morality that Rousseau claimed were the consequences ofpolitical society. This is the contradiction from which Cassirer tries to saveRousseau by eliminating passion as the foundation of action in civil society;but the failure of his interpretation makes the contradiction more obviousand intractable.

The problem reduces to the question of the relationship between the state ofnature and political society. Rousseau could either argue that political societyis a complete break with the state of nature, which is how Cassirer reads him;or he could argue that political society is a reorganization and improvementon the state of nature. The former alternative has the two problems listed

Moral freedom 107

above: some passages in The Social Contract explicitly deny it, and the book iscompletely lacking in the resources to make good on it. Unfortunately, thelatter also has two problems: some passages in the work explicitly deny it,

and the interpretation seems to rob political society of the morality and dig-nity that is supposedly its most significant characteristic. I believe, however,that these two interpretations present a false dichotomy and that Rousseau'stheory steered between them, taking elements from both, and leaving others,in a way that allows him to preserve his account of the moral worth of political

society without committing him to a fully Kantian moral theory.

The crucial passage is the one I quoted above in which he presented the ideathat to be governed by appetite is slavery because it submerges the actorin nature's causal necessity (S 54). One must read the passage closely, how-

ever. While Gourevitch translates '['impulsion du seul appetit est esclavage' as,

'the impulsion of mere appetite is slavery', it might be more accurately ren-dered as, 'the impulsion of appetite alone is slavery'. One word makes a differ-

ence, which becomes clear when one reflects on his theory of the state of

nature. Above I showed why self-legislation is impossible in the natural condi-

tion and why one cannot impose rational order on one's life, or give bounds toone's actions. In civil society, however, the situation changes. Humanity dis-

covers that there is one law that a community can legislate for itself, a socialpact of perfect, mutual alienation. In this condition, life is no longer governed

by appetite alone; it is governed by the principles of equality, justice, and duty

to which the community has bound itself. To the degree that the citizens per-form their duties, they are each obedient to a law that each prescribes to him-self or herself; and thus they are free in the sense that they are no longer guided

solely by appetite. Yet, neither are they governed solely by reason. They aregoverned by both. They are governed by a fundamental passion for their indi-vidual well-being; yet this in turn is guided and informed by reason, which hasshown them that the social pact is the necessary means for achieving thatwhich they desire.

From this perspective, Cassirer is correct to say that the dutiful and freeactions of this citizen are those, and only those, that are rational; but they arerational in a hypothetical sense rather than in the categorical sense that heintends. These actions are not based on an immediate respect for the spontan-

eous idea of freedom; rather, they are based on prudence, which shows

humanity that the social pact and its implied duties are the necessary meansfor removing itself from the state of nature. For Kant, of course, mere conform-

ity to the moral law does not qualify as morality; he argued that for one to have

moral worth one must act not only according to duty but also from duty,

which is to say from immediate respect for the moral law. But I believe that

Rousseau demanded no such qualification. Thus political society does notimply a complete break with the state of nature; it implies that the natural


instinct for self-preservation must be directed by reason, which reveals a

law that, if the community can bind itself to it, will allow for the satisfac-

tion of certain natural inclinations. This is the bearing of Rousseau's claim

that, 'men cannot engender new forces, but only unite and direct those that

exist' (S49).

I think this is an essential difference between the two theories. For Rous-

seau the motivation for entering the social pact, and thus becoming a self-

legislating agent, is the selfish desire to remove oneself from the state of nature;

whereas for Kant the existence of autonomy depends upon the possibility that

an agent can be struck by an immediate respect for the moral law, making

no appeal to desire or sentiment. Rousseau's idea of moral freedom does not

reach Kant's standard of what it means to be autonomous, which is not to

say that Kant's doctrine is superior but that Rousseau had something different

in mind. For him, moral freedom is a kind of happy result of the social pact;

it is not what justifies the state and it certainly is not what motivates the associ-

ates to enter it in the first place.

Notes

1. Hobbes, Leviathan, 145 (Chapter 21).2. Berlin, Four Essays, xxxviii.3. Berlin, Four Essays, xl.4. Berlin, Four Essays, 145-54.5. Cranston, 239—40. For a similar interpretation see also, Maurizio Viroli, Jean-

Jacques Rousseau and the'Well-Ordered Society', trans. Derek Hanson (Cambridge:Cambridge University Press, 1988), 157f.

6. Reisert, 123.7. For an attempt to spell out this transformation see, Steven G. Affeldt, 'The force

of freedom: Rousseau on forcing to be free', Political Theory, vol. 27 no. 3 (June1999), 299-333.

8. Shklar, 90.9. Andrezej Rapaczynski, Nature and Politics: Liberalism in the Philosophies of Hobbes,

Lock, and Rousseau (Ithaca: Cornell University Press, 1987), 222-3.10. For a full version of this objection see, Fralin, 80.

11. Chapman, 72.12. Chapman, 73.13. Chapman, 70.14. For further information on this point see, John Palmenatz, 'Ce qui ne signifie

autre chose sinon qu'on le forcera d'etre libre', Hobbes and Rousseau, 318-32.15. Ernst Cassirer, The Question of Jean-Jacques Rousseau, trans. Peter Gay (Blooming-

ton: Indiana University Press, 1954), 99.16. Cassirer, 104-5.

Moral freedom 109

17. Frederick Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom

(Cambridge, Mass.: Harvard University Press, 2000), 56-7.

18. Cassirer, 105-6.

19. Hume, Treatise, 265-8 (Book 2, Part 3, Section 3).

20. Kant, Grounding, 13 (First Section).

21. Levine, 201-2.


23. For an argument against Rousseau's influence on Kant regarding the theory of

autonomy see, Klaus Reich, 'Rousseau and Kant', trans. Kurt Mosser, Graduate

Faculty Philosophy Journal, vol. 23 no. 2 (November 2002), 35-54. For an argument

in favour of that influence see, Richard Velkley, Freedom and the End of Reason: On

the Moral Foundation of Kant's Critical Philosophy (Chicago: University of ChicagoPress, 1989), 1-60.


Chapter 6

Conclusion

1

It is possible at this point to summarize the most important features of Rous-seau's theory of freedom and to discuss their consequences for his overall polit-ical philosophy. Perhaps the most significant aspect of that theory is that each

of the three kinds of freedom I have discussed follows directly from the terms of

the social contract itself. First, civil freedom follows from the nature of the law

(Chapter 3. 2). This is so because the social pact requires citizens to submit allof their powers to the community under the guidance of the law; but the law,for its part, can only stipulate what the common good of the community con-

sists in and it can do this only through perfectly general statutes that apply

equally to all citizens. This implies that there will necessarily be wide areas of

life in which the law is silent and further that in such areas the citizens must beprotected from interference both from the government and from society atlarge. Second, democratic freedom follows from his theory of sovereignty(Chapter 4. 1). Given that the social pact requires the associates to forfeit allof their powers to the good of the community, some sovereign body must exist

to decide what the good is. And since no one carries any rights or privilegesinto the social pact, the Sovereign can only be the community as a whole.This does, however, leave the question of whether the collective body of cit-izens may elect others to represent its sovereignty. Finally, moral freedom fol-lows from the rational nature of the social pact (Chapter 5. 1). Because he

defined moral freedom as rational self-legislation, and because the terms ofthe social pact are the rationally necessary rules for creating a political society,

to obey those rules is to exercise one's moral freedom. Indeed, it is the only way

to exercise one's moral freedom.Another important feature of his theory of freedom is that the people he

described entering the social pact do not do so in order to be free, at least not

in the usual sense of the word. They do so in order to preserve themselves.He argued that political society begins in the preference that each person has

for herself and that its aim is the preservation of its members in their lives andpossessions (Chapter 5. 5). The three forms of freedom that he discussed are akind of happy consequence of the terms of the social pact; but they are neitherthe citizens' motivation for entering the contract nor the purpose of the

Conclusion 111

contract itself. It is true that he framed the problem of political society as a

question of how people can combine their powers while remaining 'as free asbefore' (S 50); yet it is now possible to see this phrase in the proper light. The

associates certainly do not retain their natural freedom, which refers to theabsence of obligation, because the point of the pact is to establish mutualduties. What each associate does retain is the power to 'obey only himself in

the sense that each associate wills the social contract for himself (S 49—50).

These two points, that each kind of freedom follows necessarily from the

social contract and that these freedoms are not the motivation for enter-

ing the pact in the first place, have an important consequence for how one

understands Rousseau's political thought. He did not begin with the ques-tion of how to secure civil liberties, or how to produce a democracy, or howto create autonomous moral agents. He asked himself what kind of society

could make genuine claims of obligation on its citizens. It turns out that the

answer is provided by the social pact he described and that such a pact bringsabout the three kinds of freedom I have discussed. This is not to diminishthe importance of freedom to his overall philosophy; yet it does show that

his political thought does not fit the categories into which many people try to

put it. In particular, the three common interpretations of Rousseau that I

have discussed all miss the point. He was neither a liberal, nor a democratic-totalitarian, nor a proto-Kantian.

I think that one should be very precise on this point. Rousseau did offer

a defence of civil liberty; he did argue for the ultimate authority of the

general will of the community; and he did say that humanity acquires moralworth only when it acts according to reason. The mistake is to think thatthe overall meaning or purpose of his political theory can be reduced to anyone of these senses of freedom. He was not simply a liberal, or democrat, orKantian, although elements of each of these can be seen in his philosophy.

Rather, he provided a theory of justice and of obligation, which had import-ant consequences for the kind of freedom that a political society shouldoffer its members.

The other problem with these narrow readings of his theory of freedomis that they tend to obscure his very significant insights about the ways in

which different kinds of freedom can be in tension with one another and evenwith themselves. This is most obvious in his discussion of the Lawgiver, which

bears on all three forms of freedom. He argued, for example, that if a society

that values individual liberty is to preserve its liberal principles, it must

have citizens that are tolerant, moderate, and public spirited, which impliesthat it must mould its citizens on these lines. Yet, this kind of indoctrina-

tion obviously threatens its own principles of civil liberty. The same is trueof democratic freedom. Just as liberal societies require a certain kind of cit-

izen, so do democratic societies; thus the pervasive cultivation of democratic


virtue seems to endanger individual liberty and even to endanger democracy

itself. The case of moral freedom is also analogous. Rousseau defended self-legislation; but it turned out that there is only one way to legislate for oneself,

which implies that learning to be autonomous means learning to live in oneprescribed way as opposed to all others.

These together were Rousseau's point in saying that the Lawgiver, 'must

take from man his own forces in order to give him forces which are foreign toh im. . . The more these natural forces are dead and destroyed, the greater and

more lasting are the acquired ones' (S 69). Thus, when citizens are ceaselesslymoulded to ensure that they have the virtues that support civil liberty, demo-cracy, and autonomy, it seems that they are in danger of losing precisely these

three kinds of freedom in the process. These important facets of his theory

become harder to see when one supposes that his political system was designedsimply to create or protect some narrow kind of freedom.1

On the basis of these considerations, however, one might be tempted to say

that Rousseau's theory of freedom was self-contradictory because the condi-

tions required to bring political society into existence undermine the freedoms

that exist within it. The tensions are certainly profound; yet, this is one of the

most interesting things about Rousseau's philosophy. Having thought deeply

about what it might mean to live in a free society, he came to believe that lib-erty was both a complicated thing and also perhaps a contradictory one.

Furthermore, his insights about the nature and conditions of freedom are ofpermanent interest because they seem true as far as they go. It seems correctthat civil freedom, democracy, and moral freedom are each a necessary partof an adequate theory of overall political liberty; and the effort of certainphilosophers today and in the past to collapse freedom into something moresimple, like 'the absence of external impediment to motion', robs one of theconceptual tools needed to make sense of the phenomena of political life. Yet,there does seem to be a tension between socialization on one side and civilliberty, democracy, moral freedom on the other; and there are further ten-

sions between civil liberty and democracy, civil liberty and autonomy, anddemocracy and autonomy, not to mention the internal contradictions of

each. While these issues pervade Rousseau's work, I think it was part of his

point in The Social Contract. The typical lines of criticism overlook the fact

that, in his theory, each kind of freedom is equally essential because each

follows direct from the terms of the social contract; and they also overlook the

possibility that, independently of Rousseau, certain kinds of liberty mightlimit or exclude other kinds.

This is not to say that Rousseau's theory is defensible on every point. Amongother things, he did not explain how to determine the free and fair condi-tions that make one's consent to the social pact binding; nor did he explainwhy one is obligated to keep one's promise to obey the pact; nor did he

Conclusion 113

explain the relevance to real political institutions of normative conclusionsbased on a hypothetical social contract (Chapter 2. 4). Furthermore, his useof the term 'natural right' was extremely complicated and perhaps incoherent(Chapter 3. 1). And there is an ambiguity in his theory of freewill, whichperhaps cannot be solved in the context of his philosophy (Chapter 5. 3).

Rousseau's theory of freedom also suggests a number of important thingsabout his general social and political thought. The first point is that it seemsto refute the various Utopian interpretations of his work. There are many ver-sions of this reading, the most interesting perhaps being that of Cassirer, whomI discussed in the last chapter. He believes that Rousseau meant to say thatpolitical society not only elevates human nature and makes life more pleasantbut also perfects human nature; he argues that political society should helpeach of its members to 'secure his freedom and thus restore him to his truedestiny'. 2 Thus, on Cassirer's interpretation the social pact does more forhumanity than to make life tolerable. It has an epistemic function that is acondition for humanity's progress. He says that, 'The firm and clear forma-tion of the world of the will must precede the construction of the world ofknowledge. Man must first find within himself the clear and established lawbefore he can inquire into and search for the laws of the world'.3

He seems to mean that once a community knows its duties, it can have freeinquiry because morality is secured. This is not a surprising view coming fromCassirer, yet it is implausible as an interpretation of Rousseau because thenecessity that determines the stipulations of the social pact, and so of duty, isprovided by nature, not by a spontaneous dictate of human subjectivity. Thereason that the terms of the social pact are universal and unalterable is thatnature is as it is. Rousseau argued that the social pact is an artefact whosestipulations are the result of a prior understanding of the state of nature. Cas-sirer is correct that the pact, once enacted, provides a law for the direction ofthe will. But he is incorrect that humanity finds this law within itself and that itis the condition for understanding the laws of nature. The reverse is true.A correctly formulated social pact is the result of a prior understanding of thenatural condition. This distinction may seem trivial, but in fact it is essentialbecause it points to the pervasive weakness of this kind of reading, which doesnot acknowledge that for Rousseau the social pact and political society areproducts of a kind of decadence. The social pact would be not only unneces-sary for human nature in its less corrupt forms, but also unintelligible. Scarcityand vanity together make it necessary; rationality makes it possible. The social

2


pact removes none of the corruptions in humanity's intellectual development.It relies on them and puts them to good use.

There is another kind of Utopian interpretation of Rousseau, which is theinverse of Cassirer's. While Cassirer underestimates the possible benefits oflife outside of political society, other readers including Leo Strauss overestim-ate them. They believe that the purpose of the social pact is to return asmuch as possible to the state of nature, and in particular to preserve human-ity's natural freedom. Strauss says that, 'Civil society must therefore be trans-cended not in the direction of man's highest end but of his beginning, his ear-liest past. Thus the state of nature tended to become for Rousseau a positivestandard... the good life consists in the closest approximation to the state ofnature which is possible on the level of humanity'.4 In other words, Rousseaubelieved that people must make a political order that approximates the state ofnature to the degree possible and that preserves natural liberty, in whichresides one's happiness and indeed one's humanity. The Utopia in question isthe state of nature itself.

What these interpretations miss is Rousseau's argument that people in thestate of nature have no freedom worth preserving. They have only the nominalfreedom of owing no obligations, a freedom that is of little good and consider-able harm. He did argue that people in the pure state of nature were happy;yet this is a hypothetical condition to which he said one could never returnanyway. As for the advanced state of nature, it is of course miserable, and thepoint of the social pact is to get out of it, not to return to it. Furthermore, Rous-seau argued that far from constituting one's humanity, natural freedom con-stitutes one's animality. As I discussed in the previous chapter, naturalfreedom, or the absence of obligation, is what makes humanity an undifferen-tiated part of nature's causal necessity. He argued that humans becomehuman only in political society, which was his point in saying that in a goodsociety a person should, 'ceaselessly bless the happy moment which wrestedhim from [the state of nature] forever, and out of a stupid and boundedanimal made an intelligent being and a man' (S 53). This makes implausiblethe argument that natural freedom was the most real and most important kindof freedom to Rousseau and that the state of nature functioned in his philo-sophy as a Utopia or a normative ideal.5

These considerations lead to a final point concerning Rousseau's theory offreedom. While he argued that these freedoms are available only to the citizenin political society, citizenship is highly onerous in a number of ways thatRousseau himself hastened to mention. The reason is that, relying only ontheir instincts and their natural capacity for prudence, the citizens of thesocial pact would be drawn sometimes toward duty and sometimes awayfrom it. To remedy this unreliability, Rousseau argued that they must begiven a set of passions that are artificial and as different from the greed and

Conclusion 115

vanity of the advanced state of nature as they are from the pity and self-regardof the pure state of nature. The necessity of these artificial passions puts into apeculiar light his claim that the social pact makes humans human.

So different is the civic person from the natural person that one is as likely tosay that civil life destroys humanity as to say that it creates it. The politicalsociety he described is different from the state of nature not only in that itbrings the passions under the guidance of reason, but also in that it demandsa new set of passions that are radical, unique, and unnatural. His insistencethat the social contract creates humanity by creating moral agents meansthat humanity must be understood as an essentially denatured and artificialthing. Rousseau was uncompromising on this point. Referring to the task ofthe Lawgiver he said,

Anyone who dares to institute a people must feel capable of, so to speak,changing human nature; of transforming each individual who by himself isa perfect and solitary whole into part of a larger whole from which that indi-vidual would as it were receive his life and his being; of weakening man'sconstitution in order to strengthen it; of substituting a partial and moralexistence for the independent and physical existence we have all receivedfrom nature (S 69).

This theory has a very peculiar consequence. By saying that in order to pre-serve itself and to flourish humanity must enter political society, Rousseauappeared to say that in order to fulfil its natural desires it must abandonthem. On this theory, the unexpected irony of political society is that, inorder to live, people must sacrifice their passion for existence to their duty;in order to avoid war they must sacrifice their desire for peace to civic vir-tue; in order to preserve their property they must sacrifice their wish to enjoyit to their altruistic love of country. In short, to fulfil our natural desires wemust give them up. Indeed, we must give up our very nature to an unnatural,civic version of ourselves. I believe that this is the reason that Rousseau had somuch regard for men like the praetor Brutus and Gato the Younger. By put-ting his own sons to death after their attempt to restore the Tarquins, Brutusexhibited the radical triumph of the civic self over the natural self. In thiscase, the artificial love of law and country triumphed over the natural loveof family. Referring to Rousseau's use of antique virtue, Kelly says, 'He usesCato to portray the perfect denatured citizen who is whole only by participat-ing in his community'.6 The implication is that to be whole as a citizen, onemust be denatured as a person. These observations put the two ways of life,the natural and artificial, into their proper relationship. The advanced stateof nature, with its greed and vanity, is a perfectly natural condition comparedto political society.


Some readers think that Rousseau meant also to depict a third way of lifebetween the natural and the political that achieves a successful union ofhuman nature and political necessity. Mark Gladis, for example, argues thatRousseau ultimately sought a 'middle way' that combines, 'devotion to familyand to global justice; acceptance of diversity and love of common goals; self-assertion and renunciation; private perfection and public compromise; per-sonal insouciance and social seriousness'.7 John Charvet argues, moreover,that Rousseau intended Emile to be just such a person who manages to beboth a man and citizen.8 This reading is hard to reconcile with what Rousseauhimself said, as well as with the nature of the case. In The Social Contract, heargued that there is only one social pact with one set of stipulations and thatobedience to these stipulations requires of humanity that its natural inclina-tions be extinguished and replaced with civic sentiments. This is one of theleast ambiguous elements of his presentation. Even in Emile he said, 'He whoin the civil order wants to preserve the primacy of the sentiments of naturedoes not know what he wants. Always in contradiction with himself, alwaysfloating between his inclinations and his duties, he will never be either manor citizen' (E 40). What is more, since there is only one social pact and allobligations are based upon it, any attempt to dilute it in the name of naturalsentiments would put an end to duty and to moral freedom. The unusualimplication of Rousseau's theory is that there is one form of political societyand everything around it is the state of nature, no matter how the lattermight be arranged or rearranged.

The point that I wish to end with is that the choice between these two kindsof existence is not a simple one, and it is one to which Rousseau gave no unam-biguous preference. Cassirer and others are right to emphasize the morality,order, and dignity of political society; but at what price do these blessingscome? Rousseau argued that political society comes into being only whenhumanity makes itself into something that it is not. One can summarize thisline of thought by saying that the choice open to humanity is to be ourselvesand perish, or to survive by taking up the life of someone else. For those whowant to live, the choice may seem an easy one; but things are not simple. Thissomeone else, in whose footsteps a citizen must walk, has disadvantages inaddition to being an alien being; and Rousseau drew the reader's attention toall of them. First, he argued that humanity's real nature and its civic natureare inevitably at war with each other in political society. The rarity of Brutus iswhat makes him noticeable. A freedom-loving nation might occasionally pro-duce a citizen so perfect that his or her natural self is all but eliminated; yet thisis an exception. Most people would presumably find themselves in a stateof internal conflict. This conflict is not the easy one between long-term goalsand immediate desires. It is the more fundamental and intractable conflict

Conclusion 117

between, on the one hand, the set of natural passions, such as self-regard, loveof family, and even greed and vanity, and, on the other hand, the civic passionsfor duty, selflessness, and country. It seems that most people, finding it imposs-ible to be either perfectly civil or perfectly natural, would live in a permanentcondition of internal severance.

Furthermore, as the citizen is a kind of artificial being, Rousseau arguedthat it is prone to perversion. While discipline, obedience, and selflessness

are conditions of a civil society, they are also the conditions of a number of

other things that have all the disadvantages of civil life and none of the merits.No great imagination is required to see patriotism, dutifulness, and a passion

for the common good degenerating into superstition, servility, and factional-ism. Thus the means by which humanity hopes to raise itself from the state

of nature become, in a moment, the tools by which the state of nature is

reinstated in a more slavish, precarious, and hopeless form. And finally, heargued that even when guided by good intentions, human intelligence is finite.

No matter how precisely his sensationalist psychology might be developed,and no matter how carefully planned the educational regimen, the effort to

make a new kind of human being is perhaps as likely to produce a monster asa citizen. The conclusion of this line of thought is that political society is anambiguous blessing. It asks of people that they make themselves into some-thing fragile, artificial, and prone to a perversion that brings them to a con-

dition worse than that from which they started. A person may reasonablyrefuse the request. For, the condition of citizenship is that individuals alienatenot only their lives and possessions, but also the set of passions, desires, and

aspirations that constitute their essence in the state of nature.To summarize his argument, solitude is impossible for human beings, yet

the advanced state of nature is intolerable. Even political society is imperfectbecause it demands that people forfeit what they are for a goal that is itselfunstable and impermanent. If this exhausts the possibilities it is perhaps notbecause Rousseau's intellect failed him but rather because he thought there isno solution. I believe that the complexity of his theory, and its apparent lackof a single prescription, is not exactly a weakness in his philosophy. It is ratheran implication of his theory of freedom, which says that all things come at a

price and that it is impossible to have all goods at once. Each kind of free-

dom excludes other kinds; and the conditions needed for a free society some-

times limit those very freedoms. Thus, the most important consequence of his

theory of freedom is that perfection and finality in politics, whether liberal,

democratic, or Kantian are impossible because all the desires, aspirations,

and potentials of the human being cannot be fulfilled simultaneously. The dee-

pest implication of his theory is that no permanent solution exists to the humanproblem because no order of things wholly satisfies our nature. There is, in


short, no home for us in this world. Rousseau's strange fate is that the man who

was thus above all a philosopher of moderation and caution should have been

made the pretext for simplistic and imprudent fanaticism.

Notes

1. For an interesting analysis of the kinds of social disruption implied by his theory ofthe Lawgiver see, Robert A. Nisbet, The Quest for Community (Oxford: Oxford Uni-versity Press, 1953), 140-71.

2. Cassirer, 105-6.3. Cassirer, 57.4. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1950),

282. For the same line of thought according to which political society shouldrestore natural freedom see, Levine, 26; Wokler, 'Rousseau and his critics', 202;Cullen, 5-11; and Paul M. Cohen, Freedom's Moment: An Essay on the French Ideaof Liberty from Rousseau to Foucault (Chicago: University of Chicago Press, 1997),67-70.

5. For an interesting criticism of this kind of Utopian reading, see Robert Pippin, 'Themodern world of Leo Strauss', Political Theory, vol. 20 no. 3 (August 1992), 448-72.

6. Kelly, Rousseau's Exemplary Life, 49.7. Mark S. Cladis, Public Vision, Private Lives: Rousseau, Religion, and 21st-century Demo-

cracy (Oxford: Oxford University Press, 2003), 186.8. John Charvet, 'Individual identity and social consciousness in Rousseau's philo-

sophy', Hobbes and Rousseau, 462~83.

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Index

amour-propre, see vanity

Aristotleon abstraction 23on democracy 74-5

autonomy, see moral freedom

Berlin, Isaiahcriticism of Rousseau 68negative and positive liberty

93-459,

civil freedom 52-6civil liberty, see civil freedomcivil rights, see civil freedomcommon good, see general willCondorcet, Marquis de, see jury theoremconsent 28-30Constant, Benjamin 86-90Cassirer, Ernst 103-8, 113-14civil religion, see religious toleration

deliberative democracy 73-6democracy, see deliberative democracy,

democratic freedom, directdemocracy

democratic freedom 71-3direct democracy 72-81duty, see obligation

equalityand civil freedom 60-1in legislation 81-5

freedom 1-4, see also civil freedom,democratic freedom, moral freedom,natural freedom

freewill 61-6, 98-100

gender 3In. 2general will 44-5government 45, see also law, Lawgiver,

Prince, Sovereign

Grotius, Hugoon natural law 25—6on slavery 35, 78-9

happiness 104-6Hobbes, Thomas

on freedom 92~3on the state of nature 13-16

Hume, Davidobjections to contractualism 39-44on reason as a motivation 64, 105

jury theorem 73-7justice 29-30, 49-51

Kant, Immanuelmoral philosophy 103-8on the spontaneity of practical

reason 65n. 14

law 44Lawgiver 45-6

and civil freedomlegitimacy 29-30liberalism 59liberty, see freedomLocke, John 57-8

majority rule 84-5moral freedom 92~4morality 95-7natural freedom 48~9negative liberty, see Berlin, Isaiahnoble savage 97

obligation 8-9, 29-30and moral freedom 95-8and rights 49-51

political society 28-9compared to the state of nature

66-8

113-17

124 Index

positive liberty, see Berlin, IsaiahPrince 45

and civil freedom 54-6prisoners'dilemma 31—3property 36-8, 49-51

religious toleration 56-8representation, see direct democracyrights 49-51

self-legislation, see moral freedomslavery 35, 78-9, 97-8

to passions 92-7, 107social contract, see social pactsocial pact 30—6

Sovereign 44-5and civil freedom 53-6see also direct democracy

stag hunt 31-2state of nature 7-9

as explanatory principleas history 18-23

Stoicism 93-4

utilitarianism 56

vanity 14—16

war 8

23-6

rousseau 039 s theory of freedom continuum studies in philosophy

Documents

political theory

political societychapter

early political writings

later political writings

good political society

cambridge university

cambridge texts

althoughthe social contract