2012 marks the 300th birthday of the great Swiss political philosopher, Jean-Jacques Rousseau. While a number of events and commemorations will mark this tercentenary, it is worth briefly noting his contribution to political and legal philosophy, and the ambiguous status of human rights in his theory of political right.

Rousseau is a colossus in the European history of thought. Our perception of his work oscillates between a quintessentially Enlightenment figure, a theorist of individual liberty and political freedom, and a darker image of a dangerous romanticist who set republican politics within the sinister frame of an organic, closed community of affect and patriotism.

Yet neither of these views does justice to the nuance of his thought. Rousseau attempted to order popular sovereignty and individual freedom in a novel and distinctive way, which was later instrumentalised and abused by subsequent regimes to reify and sacralise sovereign power. He conceived of political freedom as consisting in self-government through a republican deliberative politics, which gave an egalitarian translation to certain precepts of ancient republicanism. In his most important work On the Social Contract (1762), Rousseau took aim at aristocracy, monarchy and divine right, at Grotius and Aristotle, and theorised a radical republican form of government in which individual freedom could be realised through citizens’ complete alienation of the “natural” freedom of pre-civil society, for participation in, and subjection to, institutions and laws embodying the community’s “general will”. Thus, “rights” were not derived from nature, but from the contractual nature of the political community. The familiar philosophical dilemma he addressed was how the individual could subject himself to law, to an external will, and yet could somehow be said to remain “free”. His answer was not the familiar liberal solution of requiring that law and government leave a residual sphere of non-interference in private will, or to theorise that we were conditionally subject to law for the sake of security and self-preservation. Instead, subjection to an external will, in the form of law, was compatible with freedom only where law embodied a will that could be regarded as authentically our own. This was a seemingly far-fetched formulation of popular sovereignty: we were free not through conditional absence of legal interference, but through our collective authorship of the laws, in this rather abstract sense. Good law should embody our own will, such that we are free if subjected to rules we would impose on ourselves under appropriate conditions of deliberative symmetry, independently of any contingent calculus of power.  Thus, the “general will” attempted to capture the corporate will of a political community founded in contract, as the common perspective of agents who agreed to subject themselves to governance on terms formulated independently of their contingent features, resources and bargaining powers – a highly abstracted and notoriously elusive formulation of the “common good.”

Yet this vision of legislation and deliberative politics could only be realised, he thought, in a strictly egalitarian and cohesive political society, whose citizens could accept the priority of the common good. Self-government in accordance with the “general will” could only be realised in a discrete community of deeply civic individuals, bound strongly to a common political consciousness – therefore, since Rousseau saw strong national consciousness as instrumental to political freedom, he was in essence an anti-cosmopolitan. Thus, republican constitutionalism was conceived as affective rather than rational, which introduced a certain paradox in his use of the idea of a social contract as the ultimate source of political legitimation. In large, uncohesive societies, factionalism and sectional interest would subvert the general will as the expression of citizens’ common good, and law would represent a source of domination. Thus, Rousseau’s originality lay in his perception of the incompatibility of political freedom with liberal society; indeed, he arguably presaged Pierre Bourdieu’s analysis of liberal culture as a source of hierarchy and domination.

Although Rousseau was in one lens a primitivist romantic, who apprehended modernity as introducing forms of social hierarchy incompatible with true political liberty, he influenced generations of philosophers and revolutionaries, in sometimes incongruous ways. His theory of the general will influenced both Kant’s idea of the categorical imperative, and Rawls’ theory of justice as derivative of the deliberative symmetry of the “original position”. He was an early theorist of structural inequality; in his Second Discourse on Inequality, he rejected “natural” explanations for unequal distributions of power and wealth, emphasising the institutional and social nature of ostensibly “natural” endowments of merit and talent. In law, his hostility to judicial power and elevation of popular sovereignty arguably influenced the relative historical reluctance of European republics, particularly France, to allow judicial review of the constitutionality of legislation.

The UCL History Department has organised a series of events titled Rousseau 300: Nature, Self, and State, aimed at evaluating his legacy. These will include an international conference as well as a performance of Le Devin du Village, an opera Rousseau composed (although he famously railed against the corrupting effect of theatre, he approved of music). Geneva, Rousseau’s birthplace, has also organised a series of events.

 

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Written by Eoin Daly

Eoin Daly is a lecturer in the School of Law at the National University of Ireland, Galway. His main interests lie in constitutional studies, political theory, religious freedom, the separation of church and state, republicanism, Rousseau and Rawls. You may contact Eoin at Eoin.Daly[at]nuigalway.ie.