Jurisprudence (5) Rousseau / Republicanism
(1) Rousseau’s Social Contract
‘Man is born free, but is everywhere in chains’
Man is naturally free, in the sense of having a naturally sense of goodness, and society has perverted this natural
goodness. Rousseau’s social contract attempts to unshackle those chains
Background and key concepts
- We are united by a common interest. It is is a collective rather than isolated, individualist proposition. This has to be
understood in a particular historical community.
- He is a man of paradox, rhetoric : ‘Man is born free, but is everywhere in chains’ (man is naturally free, not in the
Hobbesian sense to accumulate everything for himself, but have a natural sense of goodness within them. And society
perverts this inherent goodness of man. His social contract theory is to remedy this)
- There is no binary choice like Hobbes (state of nature and ciivl condition). Rousseau gives 3 choices : nature,
convention, and what is possible.
• ‘For Rousseau, nature is a wise guide, man is an open question, and history is a tale of horror’ : There is some
wisdom within nature (for man to do good). What man makes of this is an open question. And historical records
aren’t particularly good.’
• Man is naturally good; he has been corrupted by society; he may nevertheless achieve a more perfect union.
• There is natural proclamations within us, there is possibilities of what we can do about it, and what is
conventional (what we agreed upon might not be the correct or necessarily right)
Genevan Government (Rosenblatt)
- Set against the background where the Genevan government consistently used utilitarian reasoning to justify its
position of power, where it was more ‘suitable’ or ‘advantageous’ for experts to run the affairs of the government,
Rousseau felt the need to establish that a moral order could not be a result of mere social utility.
- He was disputing the very foundation of Genevan government, as he state that the justness of a society’s foundation
is not on some arbitrary criterion of convenience, but rather how well they conformed to the moral order by God.
- The Genevan government was heavily influenced by Hobbes absolutist theory by emphasising the contract of
submission, which suggests that a change in government would entail the dissolution of society.
Page 1 of 38
,Social Contract : Contract of Association
- Transition to a ‘civil condition’
- Formation of a people/city/state/sovereign
- Based on convention not on natural right but with an awareness of human perfectibility
- Each person loses natural liberty but gains civil liberty and legal property in his possessions
What is the social contract for Rousseau?
- Rousseau answer to the Genevan patriciate is to stress the importance of transition from the state of nature to a pre-
political and civil state.
• Pre-political because it was anterior and independent of any form of government.
- The foundation of social contract based on contract of association as the recognition of principle of reciprocity and
moral equality. (Rosenblatt)
• It is a covenant between individuals that turned them into a sovereign body, they promised themselves and each
other they they would put the common good and long-term interests of the community above their own personal
interests.
• This act of association is an moral act, people came together to became a moral entity :- ‘people’, ‘city’,
‘sovereign’, ‘citizen’
• This transition to the civil state signifies the voluntary change from a natural order on self-interest to moral order
based on the ‘general will’.
• By accepting the contract, man willingly transforms himself from a ‘stupid and limited animal’ into ‘an intelligent
being and a man’
• By undergoing this transformation, man is towards the fulfilment of his own destiny, accepts the vocation assigned
by God.
- This contract is based on convention, not on natural right but a convention that can be perfected. This convention is a
legitimate one.
- Through the contract, we lose our natural liberty, but gain civil liberties (freedom to engage with one another; gain
stability of property in our possessions) - there is similarity with Kant (gain freedom in conjunction with others)
(i) exchange of one type of freedom (natural freedom) for another type (civil freedom)
• Natural freedom involves an unlimited right to all things, an idea that is reminiscent of Hobbes’s “right of
nature” in Leviathan.
• All human beings enjoy this liberty right to all things, in a world occupied by many interdependent humans,
the practical value of that liberty may be almost nonexistent (due to competition, scarcity)
• The formation of the state, and the promulgation of laws willed by the general will, transforms this
condition.
• With sovereign power in place, individuals are guaranteed a sphere of equal freedom under the law with
protection for their own persons and security for their property.
The social contract is based on a contract of association. It is a covenant between individuals where we undergo a
transition to a ‘civil condition’, forming a state/sovereign. Through the social contract, we lose natural liberties but
gain civil liberties. Although we lose the natural freedom in having unlimited right to all things, we gain freedom to
engage with one another under the law with security for our property and possessions.
(ii) citizen also achieves “moral freedom,” by which he means obedience to a law that one has prescribed to oneself
• This is to be understood as a transition (not hypothetical idea, not a categorical imperative).
• This is an actual historical event of transition from us being self-interest individuals into moral, reciprocal
and intelligent citizens.
The social contract is an actual historical moment, where man willingly transforms himself from a ‘stupid and limited
animal’ into ‘an intelligent being and a man’
Page 2 of 38
,CONJUNCTION OF SOVEREIGNTY WITH FREEDOM
In Geneva, civil liberty, in Rousseau’s view, was wrongly portrayed as freedom to lead private lives without government
interference. Liberty or freedom cannot be renounced as it is an inextricable part of humanity. For Rousseau, freedom
obtained in the social contract is based on self-rule, freedom to participate in the making of one’s own laws.
- Freedom is self-rule; the freedom to make one’s own laws as part of a community
• Prefigures Kantian autonomy
- We must be citizens, freedom in our collective self-rule. Freedom to make one’s own laws as part of
community (the idea of autonomy by Kant)
- Autonomy is a collective enterprise, we cannot be self-legislators individually.
- There is no renunciation of freedom, no alienation of judgement or submission to personal authority
• Sovereignty can never be alienated (contra Hobbes)
- There is no alienation or renunciation of our freedom. The social contract is not an alienation contract (in
contrast to Hobbes), it is a contract where we express our freedom.
- Through the social contract we attain a ‘higher’ civil freedom
(i) A Collective autonomy
(ii) A ‘General Will’ : represents that collective freedom that we obtain through the social contract.
Through the social contract, we attain higher civill freedom, and the general will represents this collective freedom.
- We must be citizens, freedom in our collective self-rule. Freedom to make one’s own laws as part of community (the
idea of autonomy by Kant)
• Rousseau advocates for a popular sovereign composed of all the people, to which the government magistrates are
accountable as ‘simple officers’, charged only with ‘execution of laws’ passed by the sovereign.
- Rousseau clearly espoused the idea that since liberty was an inextricable part of man’s humanity, there could be
no question of renouncing it.
• For the Genevan government, civil liberty was portrayed as the freedom to lead private lives without arbitrary
interference, rather than as the freedom to participate in law making. Their concept of civil liberty was dependent
on political submission, and obedience to government was the hallmark of civilised people.
- It was implied that if people refused to obey their government, anarchy would result and the people would soon
find themselves in the state of nature again.
- Rousseau opposed this idea, and argued that obedience to the whims of magistrates is tantamount to moral slavery.
• Following the republican tradition, and blending in a Christian moral vision, Rosenblatt has argued that Rousseau
reiterated the idea that liberty was the activity was ruling oneself, the freedom to participate in the making of one’s
own laws.
• According to Rousseau, frequent assemblies of citizens is part of a legitimate state, in which Rousseau recalls that
these assemblies have been denied by the Geneva government as they claimed that citizens should be happy to
‘attend to their businesses’ and private lives while they left government to the experts.
• This is no compensation for the loss of a people’s political liberty.
Representing the General Will
For Rousseau, the sovereign can neither be represented or alienated. The social contract is not an alienation contract,
it is the contract where citizens express their freedom. There is no alienation of judgement or submission to higher
authority as prescribed by Hobbes.
The people are the sovereign and make laws, but they do not govern. The magistrates govern but they are merely the
agents of the sovereign.
- Rousseau rejects the idea of representation.
• The Geneva government used smaller councils of 200 and 25 to represent the sovereign.
• For their own convenience, and for efficient operation of government, the people had conferred the exercise of
their sovereignty to these two smaller councils.
• Rousseau argues that sovereignty cannot be represented or alienated, ‘it consists essentially in the general will,
and the will cannot be represented’.
- NOTE : There is no alienation or renunciation of our freedom. The social contract is not an alienation contract
(in contrast to Hobbes), it is a contract where we express our freedom. There is no alienation of judgement or
submission to personal authority.
• The magistrates do not represent the sovereignty, there are merely its ‘agents’
- He claims that representation is inextricably linked with the corruption of commercialism and finance. The decline in
a people’s involvement in government signalled the deterioration of the state.
Page 3 of 38
, • Hence, Rousseau was forced to admit that it is not passable for the sovereign to preserve the exercise of his rights
among us unless the city is very small.
• The terms ‘government’ and ‘sovereign’ are different concepts, in a legitimate state, the people are the sovereign
and make laws; but they do not govern. The magistrates govern, but are not sovereign.
• Sovereignty is the exercise of the general will, not power.
Democracy
Rousseau praised a democratic government and favoured a popular sovereign, but he also argues that a democratic
government would ultimately deteriorate over time as magistrates tend to extend their power beyond what is conferred
by the people.
Rosenblatt defends Rousseau’s contradictory statements, arguing that the question of what form of government is not
important because the form is changeable by the people at any time.
- Rosenblatt has noted the Rousseau makes some contradictory statements about democracy, he praised democratic
government and advocated for a popular sovereign but also states that the democratic form of government is ‘not
suited to men’ and it is intrinsically ‘subject to civil wars and internal agitations’.
• Rosenblatt has defended Rousseau position that Rousseau has rendered the whole question of what form of
government was best quite irrelevant, since the people were free to change it any time they liked, having defined
that government is merely a type of administration, changeable at any time by the popular sovereign.
- The used the example Rome to affirm his view of the natural tendency of government to deteriorate by becoming
more restrictive, aristocratic over time.
• In the Genevan context, it is the magistrates rather than the people who were much to blame for the degeneration
that naturally occurred in regimes.
• A prominent magistrate had admitted that magistrates do have a tendency to try to extend their power and make
the government more restrictive.
Constitutions
- The Genevan government claimed that the government’s powers were established by fundamental edicts, and these
cannot be changed except with the prior approval of the three ‘orders’ who shared sovereignty in the General
Council, Small Council and rest of bourgeoisie.
• They argued that a contract is ‘fixed and perpetual’
- Rousseau denied that sovereignty was divisible, hence it is impossible for orders to share sovereignty in the
state.
- He held that laws is not a decree from a superior to his inferiors, but it is a declaration of the general will.
- He denied the relevance of constitutions, where ‘there is no fundamental law that cannot be revoked’, ‘not even
the social contract’, ‘A people is always the master to change its laws
Page 4 of 38
(1) Rousseau’s Social Contract
‘Man is born free, but is everywhere in chains’
Man is naturally free, in the sense of having a naturally sense of goodness, and society has perverted this natural
goodness. Rousseau’s social contract attempts to unshackle those chains
Background and key concepts
- We are united by a common interest. It is is a collective rather than isolated, individualist proposition. This has to be
understood in a particular historical community.
- He is a man of paradox, rhetoric : ‘Man is born free, but is everywhere in chains’ (man is naturally free, not in the
Hobbesian sense to accumulate everything for himself, but have a natural sense of goodness within them. And society
perverts this inherent goodness of man. His social contract theory is to remedy this)
- There is no binary choice like Hobbes (state of nature and ciivl condition). Rousseau gives 3 choices : nature,
convention, and what is possible.
• ‘For Rousseau, nature is a wise guide, man is an open question, and history is a tale of horror’ : There is some
wisdom within nature (for man to do good). What man makes of this is an open question. And historical records
aren’t particularly good.’
• Man is naturally good; he has been corrupted by society; he may nevertheless achieve a more perfect union.
• There is natural proclamations within us, there is possibilities of what we can do about it, and what is
conventional (what we agreed upon might not be the correct or necessarily right)
Genevan Government (Rosenblatt)
- Set against the background where the Genevan government consistently used utilitarian reasoning to justify its
position of power, where it was more ‘suitable’ or ‘advantageous’ for experts to run the affairs of the government,
Rousseau felt the need to establish that a moral order could not be a result of mere social utility.
- He was disputing the very foundation of Genevan government, as he state that the justness of a society’s foundation
is not on some arbitrary criterion of convenience, but rather how well they conformed to the moral order by God.
- The Genevan government was heavily influenced by Hobbes absolutist theory by emphasising the contract of
submission, which suggests that a change in government would entail the dissolution of society.
Page 1 of 38
,Social Contract : Contract of Association
- Transition to a ‘civil condition’
- Formation of a people/city/state/sovereign
- Based on convention not on natural right but with an awareness of human perfectibility
- Each person loses natural liberty but gains civil liberty and legal property in his possessions
What is the social contract for Rousseau?
- Rousseau answer to the Genevan patriciate is to stress the importance of transition from the state of nature to a pre-
political and civil state.
• Pre-political because it was anterior and independent of any form of government.
- The foundation of social contract based on contract of association as the recognition of principle of reciprocity and
moral equality. (Rosenblatt)
• It is a covenant between individuals that turned them into a sovereign body, they promised themselves and each
other they they would put the common good and long-term interests of the community above their own personal
interests.
• This act of association is an moral act, people came together to became a moral entity :- ‘people’, ‘city’,
‘sovereign’, ‘citizen’
• This transition to the civil state signifies the voluntary change from a natural order on self-interest to moral order
based on the ‘general will’.
• By accepting the contract, man willingly transforms himself from a ‘stupid and limited animal’ into ‘an intelligent
being and a man’
• By undergoing this transformation, man is towards the fulfilment of his own destiny, accepts the vocation assigned
by God.
- This contract is based on convention, not on natural right but a convention that can be perfected. This convention is a
legitimate one.
- Through the contract, we lose our natural liberty, but gain civil liberties (freedom to engage with one another; gain
stability of property in our possessions) - there is similarity with Kant (gain freedom in conjunction with others)
(i) exchange of one type of freedom (natural freedom) for another type (civil freedom)
• Natural freedom involves an unlimited right to all things, an idea that is reminiscent of Hobbes’s “right of
nature” in Leviathan.
• All human beings enjoy this liberty right to all things, in a world occupied by many interdependent humans,
the practical value of that liberty may be almost nonexistent (due to competition, scarcity)
• The formation of the state, and the promulgation of laws willed by the general will, transforms this
condition.
• With sovereign power in place, individuals are guaranteed a sphere of equal freedom under the law with
protection for their own persons and security for their property.
The social contract is based on a contract of association. It is a covenant between individuals where we undergo a
transition to a ‘civil condition’, forming a state/sovereign. Through the social contract, we lose natural liberties but
gain civil liberties. Although we lose the natural freedom in having unlimited right to all things, we gain freedom to
engage with one another under the law with security for our property and possessions.
(ii) citizen also achieves “moral freedom,” by which he means obedience to a law that one has prescribed to oneself
• This is to be understood as a transition (not hypothetical idea, not a categorical imperative).
• This is an actual historical event of transition from us being self-interest individuals into moral, reciprocal
and intelligent citizens.
The social contract is an actual historical moment, where man willingly transforms himself from a ‘stupid and limited
animal’ into ‘an intelligent being and a man’
Page 2 of 38
,CONJUNCTION OF SOVEREIGNTY WITH FREEDOM
In Geneva, civil liberty, in Rousseau’s view, was wrongly portrayed as freedom to lead private lives without government
interference. Liberty or freedom cannot be renounced as it is an inextricable part of humanity. For Rousseau, freedom
obtained in the social contract is based on self-rule, freedom to participate in the making of one’s own laws.
- Freedom is self-rule; the freedom to make one’s own laws as part of a community
• Prefigures Kantian autonomy
- We must be citizens, freedom in our collective self-rule. Freedom to make one’s own laws as part of
community (the idea of autonomy by Kant)
- Autonomy is a collective enterprise, we cannot be self-legislators individually.
- There is no renunciation of freedom, no alienation of judgement or submission to personal authority
• Sovereignty can never be alienated (contra Hobbes)
- There is no alienation or renunciation of our freedom. The social contract is not an alienation contract (in
contrast to Hobbes), it is a contract where we express our freedom.
- Through the social contract we attain a ‘higher’ civil freedom
(i) A Collective autonomy
(ii) A ‘General Will’ : represents that collective freedom that we obtain through the social contract.
Through the social contract, we attain higher civill freedom, and the general will represents this collective freedom.
- We must be citizens, freedom in our collective self-rule. Freedom to make one’s own laws as part of community (the
idea of autonomy by Kant)
• Rousseau advocates for a popular sovereign composed of all the people, to which the government magistrates are
accountable as ‘simple officers’, charged only with ‘execution of laws’ passed by the sovereign.
- Rousseau clearly espoused the idea that since liberty was an inextricable part of man’s humanity, there could be
no question of renouncing it.
• For the Genevan government, civil liberty was portrayed as the freedom to lead private lives without arbitrary
interference, rather than as the freedom to participate in law making. Their concept of civil liberty was dependent
on political submission, and obedience to government was the hallmark of civilised people.
- It was implied that if people refused to obey their government, anarchy would result and the people would soon
find themselves in the state of nature again.
- Rousseau opposed this idea, and argued that obedience to the whims of magistrates is tantamount to moral slavery.
• Following the republican tradition, and blending in a Christian moral vision, Rosenblatt has argued that Rousseau
reiterated the idea that liberty was the activity was ruling oneself, the freedom to participate in the making of one’s
own laws.
• According to Rousseau, frequent assemblies of citizens is part of a legitimate state, in which Rousseau recalls that
these assemblies have been denied by the Geneva government as they claimed that citizens should be happy to
‘attend to their businesses’ and private lives while they left government to the experts.
• This is no compensation for the loss of a people’s political liberty.
Representing the General Will
For Rousseau, the sovereign can neither be represented or alienated. The social contract is not an alienation contract,
it is the contract where citizens express their freedom. There is no alienation of judgement or submission to higher
authority as prescribed by Hobbes.
The people are the sovereign and make laws, but they do not govern. The magistrates govern but they are merely the
agents of the sovereign.
- Rousseau rejects the idea of representation.
• The Geneva government used smaller councils of 200 and 25 to represent the sovereign.
• For their own convenience, and for efficient operation of government, the people had conferred the exercise of
their sovereignty to these two smaller councils.
• Rousseau argues that sovereignty cannot be represented or alienated, ‘it consists essentially in the general will,
and the will cannot be represented’.
- NOTE : There is no alienation or renunciation of our freedom. The social contract is not an alienation contract
(in contrast to Hobbes), it is a contract where we express our freedom. There is no alienation of judgement or
submission to personal authority.
• The magistrates do not represent the sovereignty, there are merely its ‘agents’
- He claims that representation is inextricably linked with the corruption of commercialism and finance. The decline in
a people’s involvement in government signalled the deterioration of the state.
Page 3 of 38
, • Hence, Rousseau was forced to admit that it is not passable for the sovereign to preserve the exercise of his rights
among us unless the city is very small.
• The terms ‘government’ and ‘sovereign’ are different concepts, in a legitimate state, the people are the sovereign
and make laws; but they do not govern. The magistrates govern, but are not sovereign.
• Sovereignty is the exercise of the general will, not power.
Democracy
Rousseau praised a democratic government and favoured a popular sovereign, but he also argues that a democratic
government would ultimately deteriorate over time as magistrates tend to extend their power beyond what is conferred
by the people.
Rosenblatt defends Rousseau’s contradictory statements, arguing that the question of what form of government is not
important because the form is changeable by the people at any time.
- Rosenblatt has noted the Rousseau makes some contradictory statements about democracy, he praised democratic
government and advocated for a popular sovereign but also states that the democratic form of government is ‘not
suited to men’ and it is intrinsically ‘subject to civil wars and internal agitations’.
• Rosenblatt has defended Rousseau position that Rousseau has rendered the whole question of what form of
government was best quite irrelevant, since the people were free to change it any time they liked, having defined
that government is merely a type of administration, changeable at any time by the popular sovereign.
- The used the example Rome to affirm his view of the natural tendency of government to deteriorate by becoming
more restrictive, aristocratic over time.
• In the Genevan context, it is the magistrates rather than the people who were much to blame for the degeneration
that naturally occurred in regimes.
• A prominent magistrate had admitted that magistrates do have a tendency to try to extend their power and make
the government more restrictive.
Constitutions
- The Genevan government claimed that the government’s powers were established by fundamental edicts, and these
cannot be changed except with the prior approval of the three ‘orders’ who shared sovereignty in the General
Council, Small Council and rest of bourgeoisie.
• They argued that a contract is ‘fixed and perpetual’
- Rousseau denied that sovereignty was divisible, hence it is impossible for orders to share sovereignty in the
state.
- He held that laws is not a decree from a superior to his inferiors, but it is a declaration of the general will.
- He denied the relevance of constitutions, where ‘there is no fundamental law that cannot be revoked’, ‘not even
the social contract’, ‘A people is always the master to change its laws
Page 4 of 38
