ROUSSEAU'S THEORY OF FREEDOM

Continuum Studies in Philosophy Series Editor: James Fieser, University of Tennessee at Martin Tolerance and the Ethical Life, Andrew Fiala Aquinas and the Ship of Theseus, Christopher M. Brown Descartes and the Metaphysics of Human Nature, Justin Skirry Kierkegaard's Analysis of Radical Evil, David A. Roberts St Augustine and the Theory of Just War, John M. Mattox

ROUSSEAU'S THEORY OF FREEDOM

MATTHEW SIMPSON

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LONDON NEW YORK

Continuum The Tower Building, 11 York Road, London SE1 7NX 80 Maiden Lane, Suite 704, New York, NY 10038 Matthew Simpson 2006 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Matthew Simpson has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as Author of this work. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: 0-8264-8640-1 Library of Congress Cataloging-in-Publication Data A catalog record for this book is available from the Library of Congress.

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To my Mother

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Contents

Abbreviations

viii
ix 1 7 28 48 71 92 110 119 123

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

Abbreviations

The following are abbreviations for frequently cited books by Rousseau. D= The Discourses and Other Early Political Writings, ed. and trans. Victor Gourevitch, 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. Victor Gourevitch, 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 by Jean-Jacques Rousseau in his work The Social Contract. I should begin with two 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 happens. While Rousseau was interested in this issue especially with respect to its consequences for morality, he deliberately set it aside in The Social Contract. The second is that I will use the words freedom and liberty interchangeably 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 offer its 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 central topic is how people might construct a genuinely free political society. When Rousseau took up the ancient issue of the best form of government he framed it 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 in what follows. But even on the surface it is clear that his theory of freedom is the key to understanding his political thought in general. I will indicate some of the ways that his views on freedom help to illuminate other difficult and controversial aspects of his philosophy. Furthermore, philosophical developments over the past few decades have led to a renewed interest in the political thought of the seventeenth and eighteenth 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 turn to the Enlightenment for inspiration and guidance on these issues, the process sometimes brings with it anachronisms that distort as much as they reveal about the political philosophy of the period. So, even though I will make little 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 and influential theories of freedom, obligation, and the social contract.

Preface

Lastly, and I offer this only as a suggestion, it seems that for many people today the concept of freedom has a special place among political ideals, akin to that held in other times by piety, happiness, or raison d'etat. It is a first principle of politics, which is not derived from anything higher and which serves as an ultimate justification for law and policy. The explanation of how freedom has come to occupy such a high rank among political ideals is beyond the scope of this book, although Rousseau's philosophy would probably be an important part of the story. I mean only to suggest that many people today seem to believe that freedom has a kind of inherent and absolute value, a belief that serves 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 in a disenchanted age in which politicians no longer think in romantic terms. Against this I can only offer the evidence that, particularly in the United States, with which I am most familiar, the weightiest decisions of both domestic and foreign affairs are often defended not in the name of God, or virtue, or tradition, or even national interest, but rather in that of freedom. This is not to deny that the political actors in question may have any number of ulterior motives. Even if they do, it is significant that they choose to cover them with the veil of freedom rather than those that historically have been the hiding places of such duplicity. To the extent that this is so, concerned people will do well to think seriously about the nature and conditions of political freedom, something that I think is rarely done, judged by the vague and ambivalent meaning usually given to the word, especially by political leaders. I think that one can grasp the sense of modern political debate, or its lack of sense, only by thinking carefully about freedom. While Rousseau's theory is not definitive even on its own terms, he did as much as any philosopher to clarify the basic issues that appear when one tries to think seriously about what it would mean to live in a free society. For this reason, his political thought is perhaps more relevant today than it was in his own time.

It is a pleasure to be able to express my gratitude to a few of the people and institutions that made this work possible. This book began as my doctoral dissertation at Boston University; I would like to thank the University and especially the Department of Philosophy and the University Professors Program, both of which gave me considerable financial support. I conducted some of the research 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 permanent and visiting fellows, who provided a stimulating intellectual community. 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 would have been impossible for me to complete this project without the help of my wife Regan; and the book would have been much poorer without her generous philosophical criticism. Finally, I would like to thank my parents for their continued 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 that are relevant to politics, yet the nature of each, their relative importance, and their relationship to the social contract after which the work was named are all far from clear. A further difficulty is that in contemporary political thought the 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's philosophy. This book will offer an account of the four kinds of freedom that Rousseau himself discussed and examine the major interpretive and philosophical 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 at the 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 precisely 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 the social contract, it is less so once such a contract is enacted. The other kinds of freedom exist only within political society and are the source of the major interpretive problems. As a matter of scholarly history, these remaining kinds of freedom (civil, democratic, and moral) have led to three plausible and mutually exclusive ways of reading The Social Contract, defined by which of these freedoms scholars take to be most important. In addition to offering my own reading of his theory, I will discuss these interpretations in some depth and argue that, for all their explanatory power, they share the common flaw of reductionism. Because each sense of freedom is essential to Rousseau's philosophy, 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 theory but 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 choosing 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

Introduction

be Rousseau's guiding idea tend toward what we would today call a liberal interpretation of his philosophy. On this view, the highest political good is the creation and preservation of a sphere of free choice within which individual citizens can determine for themselves the contours of their lives, especially regarding basic rights such as conscience, expression, movement, and association. The next kind of freedom in political society is democratic freedom, which refers 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 has the 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 to a collective power of the community rather than the options available to individuals. Readers who emphasize this kind of freedom are led to what is perhaps the most common interpretation of Rousseau: namely, that he subordinated civil liberties to the collective will, with the result that his philosophy is 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 the absence of social or political coercion had little value for Rousseau, because he was more concerned with the community's power to express its will in the law, against which the citizens retained no individual rights. The point of contention between these two interpretations concerns how to understand the relative importance of democracy and individual liberty. Rousseau never made the mistake of thinking that the two form a natural pair, which is not surprising given that he had personal experience of democracies that suppressed individual liberty and also of absolute regimes that were among the most liberal of their time. For example, his native city-state of Geneva was something like a democracy in the sense that it offered its citizens more opportunity for political participation than did most of the nations of his day; yet its citizens gave themselves very little in the way of personal liberties. Conversely, when the authorities in France and Geneva eventually condemned his writings Rousseau fled to one of the freest places in Europe at the time, the lands of Frederick II of Prussia, who was an absolute despot, but a famously liberal one. Even if Rousseau avoided the error of thinking that democracy and individual liberty go together seamlessly, this leaves open the question 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 be of greater importance to his thought, one will lean either toward the liberal reading or toward the democratic-totalitarian one. Yet there is a further dimension to this debate between individual liberty and collective self-determination. Rousseau emphasized a third kind of freedom in political society, which he called moral freedom. This is a difficult idea to understand, so perhaps for now it is enough to say simply what he

Introduction

said, that moral freedom is obedience to a law that one has prescribed to oneself. This is freedom in the sense of autonomy or self-legislation. This form of freedom may at first appear to be indistinguishable from civil freedom, because both concern the ability of individuals to act according to their own lights without interference. The difference is that whereas the limits of civil freedom are determined by external forces and concern only outward behaviour, moral freedom is an inward power of acting according to rational principles, which is limited by one's rational capacities and the ability to control one's passions. Perhaps a pair of examples will help to distinguish them. First, imagine an alcoholic who would prefer not to drink but finds himself unable to choose sobriety and who, further, lives in a community that neither forbids nor compels the imbibing of alcohol. This person possesses civil freedom because the law permits him to choose for himself whether or not to drink; but he lacks moral freedom 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 of raising 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 acting according to her judgment about what is best. This latter example is not a perfect illustration of Rousseau's point, because he thought that disobedience to the law could never be an act of moral freedom; but this is a very technical issue 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 believed that political systems should be judged neither by whether they allow for individual liberty, nor by whether they are democratic, but primarily by how well they cultivate and express the autonomy of their citizens. The scholars who read him in this way are, not surprisingly, usually those who have been influenced by some form of German Idealism. Thus, by concentrating on moral freedom 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, the democratic-totalitarian, and Kantian) begins from one of the three kinds of freedom that Rousseau argued would exist in a good political society. I will try 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 that he 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 tensions between them. Just as individual liberty and democracy bear a complicated relationship to one another, so do they both bear an equally complicated

Introduction

relationship to moral freedom, for each of these kinds of freedom is in tension with the other two. Democracies often curtail individual liberty, people who have individual liberty often lack autonomy, people who value autonomy are often suspicious of democracy, and so on. In this way, Rousseau can be said to have had a tragic view of politics, meaning that all political arrangements involve significant sacrifices and that no order of things can satisfy all of humanity's desires. His theory of freedom suggests that he was not the Utopian thinker that he is sometimes made out to be. The structure of this work mirrors Rousseau's analysis of the different kinds 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 would exist in a correctly ordered political society; as for natural freedom, I discuss it 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 political philosophy.

A note on The Social Contract Because The Social Contract is a terse and difficult work, it is appropriate to say something about its origin and character, and about my approach to it. In the spring of 1762 Rousseau published two epoch-making books, one was a long didactic novel called Emile, or On Education, the other a short treatise on political philosophy called Of the Social Contract, or Principles of Political Right, which I refer to simply as The Social Contract. Even though Rousseau later made derogatory remarks about the structure and style of both works, the former was assembled with some artistry. The Social Contract, for its part, was fragmentary even 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 Institutions, 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 same issues. Yet this is more difficult than it seems, not only because they are complicated themselves but also because their relationship to The Social Contract is often unclear. Most of Rousseau's works were written in response to specific requests or events in his personal life, with the result that they do not form a neat system or progression; in fact, many scholars believe that his major

Introduction

writings contradict one another. While I generally agree with those who think that he was consistent within and between his major works, serious questions remain, which I will discuss as they arise. Moreover, like all great philosophers, he found it necessary to invent new words and to use old ones in new ways, a fact which often makes it hard to follow his intentions. One must continually guard against substituting what someone today, or even in the eighteenth century, would have meant by a certain word or phrase for what Rousseau has already said he meant by it. He never tired of warning readers to learn his dictionary. Unfortunately, the problem 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 be understood only through its technical terms, and technical terms that can be interpreted only in their context. The reader then faces the equivalent of a mathematical equation in two variables with many possible solutions. In other words, the explicit evidence is sometimes insufficient to prefer one reading to another, at which point the interpreter must rely on something else. I will say as much when such cases arise. Another difficulty in reading the work is Rousseau's prose style. While he was a vivid and compelling writer, the style of The Social Contract has a rhetorical tick that some readers find puzzling. He had such a great love of paradoxical epigrams that sometimes he appeared to prefer being shocking to being clear. He never missed a chance to say things like 'Man is born free, and everywhere he is in chains', 'the Citizen consents to all the laws, even those passed in spite of him', and 'he shall be forced to be free'. In most cases, however, the paradox exists only because he traded on the everyday meaning of words that he had already defined as something else. These unusual expressions can generally 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 political philosophy, much of which is excellent, it is anachronism. The problem with interpreting him by the light of influential thinkers and debates today is that he lived in a different intellectual climate, which had different assumptions and different aspirations. It is not always useful to assume that at bottom 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 match perfectly with his own. While I agree with those who believe that the history of philosophy 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 philosophers of the past. This can be very misleading. One of the valuable things about Rousseau is that his work challenges not only the conclusions of much contemporary 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 his philosophy must fall into some common pre-existing category. In any case, I have tried to do justice to the great distance that separates his intellectual climate from our own, while still suggesting that his political theory contains insights 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 Marcel Raymond (Paris: Gallimard, Bibliotheque de la Pleiade, 195995). To make the present work less cluttered, I have cited only standard English editions without including page references to the Pleiade series. Most of the works that I discuss in detail are so short and well known that interested readers will have no trouble finding the relevant passages in French. Furthermore, Victor Gourevitch's English edition of Rousseau's political writings, to which I primarily refer, includes page numbers of the Pleiade series in the body of the translation. The Social Contract and most of the works discussed in the present book are contained in Volume III of the series, published in 1964 and reprinted in a corrected edition under the editorship of Robert Derathe in 1979. Rousseau's Confessions appear in Volume I, along with his other autobiographical 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 necessary 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. Like many philosophers of his age, and today, Rousseau thought of political society in terms of a voluntary association of independent persons who unite for the purpose of a better life than would be possible on their own. The basic question of 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 such that 'I'll do so-and-so for you, if you do such-and-such for me'. The hypothetical 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 political society. 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 only the nature and purpose of political society as he conceived it but also the scope of each citizen's freedoms and obligations within that society. Thus, the first step to understanding his theory of freedom is to see what the social contract stipulates and why. Like most philosophers who think of politics in terms of a contract, Rousseau began his account with a theory about the people who enter the contract and 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 even have different ideas about what it is a picture of in the first place. It is necessary therefore to look carefully at the state of nature in Rousseau's philosophy to see what it is and how it functions.

Rousseau's Theory of Freedom

The state of nature is in fact one of the more difficult aspects of The Social Contract', the book says very little about the conditions under which the contract 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 of the state of nature, the first two of which are easier to understand than the second. 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 this motivation 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 use the modern terminology, which is to say that they are able to understand how to improve their condition through the promise of mutual aid and also wil-

ling to honour the promises that they expect others to honour.1

The 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 not the only one to argue that it is a state of conflict; yet he is not as explicit as some regarding the causes and nature of the conflict. He refers only to, 'the state of nature, when, waging inevitable fights [combats], they would be defending the means of preserving their lives by risking them' (S 63-4). Although the details concerning the source of this conflict cannot be understood based on The Social Contract alone, they are not especially important for Rousseau's theory. The significant point is that the state of nature is inhospitable enough that people must join together in order to preserve themselves. 'I assume men having reached the point where the obstacles that interfere with their preservation in the state of nature prevail by their resistance over the forces which each individual can muster to maintain himself in that state' (S 49). While the traditional way to formulate the point is to say that the state of nature is a state of war, Rousseau avoided this terminology because he had a complicated theory of war according to which it can exist only between states and not between 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 significant 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 nothing to those to whom I have promised nothing. I recognize as another's only what 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 oneself or to others issuing from nature itself, all obligations must derive from contracts. 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 natural obligations 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

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 understanding the social pact and the kinds of freedom that it produces. Many questions 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 the social pact and their motivations for doing so. Without a clear understanding of this, it is impossible or nearly impossible to see why the social contract stipulates what it does. The answer is provided only by Rousseau's overall theory of 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 Foundations 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 with only 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 arbitrary without the context that this earlier work provides.

2
At first it is not obvious that the 'Second Discourse' can help one to understand The Social Contract because the two works seem to contradict each other. While the latter argues that the state of nature is a state of conflict, the former describes it as a condition that is benign, self-sustaining, and radically peaceful. Furthermore, certain passages in Rousseau's work hint that even in his own mind the two are contradictory. A very great deal turns on the question of whether these works express two different theories of the state of nature or two 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 each other and that they are somehow part of the same philosophical outlook

despite their differences. 2

One 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 Malesherbes. 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 was under house arrest after the publication of his Philosophical Thoughts and Letter on the Blind. Reading a magazine as he walked, he came across an essay contest

10

Rousseau's Theory of Freedom

proposed by the Academy of Dijon. The theme of the essay was to be: Has the restoration 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 collapsed beneath a tree and wept. In the letter to Malesherbes he went on to explain the consequences 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 me beneath 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 Contract from this list of'principal writings' inspired by the experience on the road to Vincennes, along with the apparent differences in the theory of the state of nature between this work and the 'Second Discourse' suggest that he did change his mind between the composition of the two works. However, while granting the importance of this letter, I believe more powerful considerations suggest something else. The first thing to notice, although it is less than definitive, is that their composition overlapped. The essay competition to which he entered the 'Second Discourse' was announced in November 1753. He seems to have completed it 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, the work was in proof in Holland by the autumn of that year and published early in the next (C 362~8, D 348-50). Regarding The Social Contract, he said in his Confessions that he began considering the topic while an assistant to the French ambassador in Venice in 1743-4 (C 377). He then began writing it under the title Political Institutions as early as 1751 and worked on it intermittently until its publication in 1762. This shows that he was working on them more or less simultaneously. He even said in his Confessions that he was meditating on The Social 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 a major difference in philosophical outlook between the two books however different 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 to Emile as part of his education in politics (E 45971). Although the version in Emile is not identical to the full work, particularly regarding civil religion, it is close enough to bring The Social Contract into the same universe of ideas, and so into the system of philosophy developed in his 'three principal writings'. One must grant, however, that this evidence is difficult to interpret given

The state of nature

11

that the significance of political theory for Emile's education is a subject

of much debate/
Nonetheless, Rousseau explicitly affirmed the conceptual unity of the works in at least two further places. The first is in a letter to his French publisher on the question of whether Emile and The Social Contract should be published together. 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 said that 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 may infer that the latter two works somehow express the same philosophical outlook 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 life as the result of his publication of Emile and The Social Contract. He asked himself whether his enemies really intended to condemn his ideas, or whether they were more interested in making him suffer personally and used his writings merely as a pretext. He concluded that the latter must be the case because the persecutions began many years after the publication of his early and most audacious works, which were applauded at their first appearance. He asked why The Social Contract should have brought on him such condemnation when, 'all that is challenging in The Social Contract had previously appeared in the Essay on Inequality [the 'Second Discourse]' (C 379). This passage, taken together 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 the same philosophical system as his 'Second Discourse'. This conclusion leaves open the initial question of why he neglected to include The Social Contract in the list of his principal works that derived from his 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 thought The Social Contract was important, but whether he thought it coherent with his 'Second Discourse'. One reason for its absence might be that he composed The Social Contract in a rhetorical register different from the three works he mentioned, which have a stylistic as well as a doctrinal resemblance. Those three are 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 solely the 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 Contract was finished but had not yet been published; and he was unusually jealous of 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 might hinder me in the execution' (C 377).6

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Rousseau's Theory of Freedom

3

Having established that in Rousseau's mind his 'Second Discourse' and The Social Contract formed a kind of whole, the question remains of how they go together given that one depicts a peaceful state of nature while the other depicts a condition of violence. To answer this, a few preliminary remarks about the 'Second Discourse' are necessary. Regarding its purpose, he composed it in 1753-4 in response to an essay contest proposed by the Academy of Dijon, the same body that a few years previously had awarded him first prize for his 'Discourse on the Sciences and Arts', which was written immediately after his experience on the road to Vincennes. The question for the new contest was: What is the origin of inequality among men, and is it justified by natural law? To answer this Rousseau believed that he should give an account 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 and political inequality. He argued that to know the origin of inequality today we must begin 'by knowing men themselves', by which he meant to investigate 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 to or changed in his primitive state' (D 124). This is the context of his theory of the state of nature in the 'Second Discourse'. The content of that theory is his famous argument for 'the natural goodness of man' or as it is sometimes unfortunately expressed, 'the noble savage', according to which people in the state of nature are benign, asocial, and gentle. He said, T see an animal less strong than some, less agile than others, but, all things considered, the most advantageously organized of all: I see him sating his hunger beneath an oak, slaking his thirst at the first Stream, finding his bed at the foot of the same 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 even less interest in other people. Their only drives were a basic instinct for selfpreservation and the capacity to feel pain at the suffering of others. Although they had a latent kind of freewill and perfectibility, or the power to learn new things over a lifetime and from one generation to the next, their life was stable and complete (D 140-2). The result was a condition in which people 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 own preservation is the least prejudicial to the self-preservation of others, it follows that 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 peaceloving and in no way disposed toward harming one another. He depicts them

The state of nature

13

as, 'wandering in the forests without industry, without speech, without settled abode, without war, and without tie, without any need of others of his kind and without any desire to harm t h e m . . . subject to few passions and selfsufficient' ( D 1 5 7 ) . 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 the benign and self-sufficient person. He therefore went to ingenious lengths to make 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 the state of nature males would fight over the females of the population, as happens with most other species. He responded by saying that there is a difference between human beings and almost all other creatures. The number of females tends to be greater than the number of males which relieves some of the pressure of finding a mate; and furthermore women unlike the females of many other 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 terrible moment of common ardor, tumult, disorder, and fighting; a moment which 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 of the story that helps to explain the relationship between this work and The Social 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 incremental changes in the state of nature through which it is transformed into a more dangerous and hostile place. It is unnecessary here to look at the details of the process 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 population grew it spread out into less fruitful climates, the result of which is that people encountered 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 begin to regard one another in a different way, which in turn was the cause of conflict between them. This is one of the most interestingjunctures in Rousseau's theory of the state of 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 his Leviathan that scarcity leads to violence because of competition and fear. Under conditions of scarcity, one person's well-being is necessarily prejudicial

14

Rousseau's Theory of Freedom

to another's; and because all people have a concern to watch over their own survival, their interests are incompatible and they find themselves in conflict with one another. Furthermore, because people then sense that their interests are incompatible, they begin to fear harm from others, at which point they may choose to strike first. 'And from this diffidence of one another, there is no way for any man to secure himselfe, so reasonable, as Anticipation; that is, by force, or wiles, to master the persons of all men he can, so long, till he see no

other power great enough to endanger him'.7

Rousseau, however, did not emphasize competition and fear as the explanation for how scarcity led to violence. He based his account on a sophisticated theory of something like what for Hobbes had been only the third cause of violence in the state of nature, which he called 'glory' and defined as 'joy, arising from imagination of a mans [sic] own power and ability'. This is the heart of Rousseau's theory. He argued that under scarcity people were forced to begin to cooperate and to develop technology in order to meet the material needs of life. This had the dual effect of bringing people into more regular acquaintance 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 just as they judged others (D 165-6). At this moment there arose a desire to be regarded highly by one's peers, which Rousseau argued is the basic cause of violence. To express this idea he used the term amour-propre, a very complicated concept in his work, which I will translate as 'vanity' (D 218, 377). At the risk of simplifying too much, vanity is a socialized form of the natural human concern for one's own well-being. He imagined a scenario that might have taken 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 came to be the most highly regarded' (D 166). To put it succinctly, vanity is the desire to be regarded as better than other people. In this sense, it is a desire not for a determinate good like food or shelter but rather for a certain kind of relative consideration. Rousseau gave an account of this phenomenon in respect to wealth. [If] one sees a handful of powerful and rich men at the pinnacle of greatness and fortune while the masses grovel in obscurity and misery, it is because the former value the things they enjoy only to the extent that the others are deprived of them, and they would cease to be happy if, without any change in their own state, the People ceased to be miserable (D 184).

The state of nature

15

The idea that people desire to possess things mostly in order to make others feel 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 people desire to possess a luxurious home. Now, it is one thing to desire shelter from the weather, which is a natural need that is independent of society, it is another to 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 that standard is in some sense created by society, because in different circumstances the same person would often wish to reach a different standard. In other words, luxurious residences are considered luxurious not because of their intrinsic qualities but because they are more sumptuous than those of one's peers, 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 everyone 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, even though the house itself has not changed. Rousseau argued that such is the case with most possessions and especially with money itself. Judith Shklar paraphrases his theory this way, 'For the rich wealth is important because they have more than other men. Indeed they would not enjoy their wealth if the poor did not suffer. It is in order to be admired and to look down upon the less 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 people into squalor and misery because the wealthy and powerful rely on the existence 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 in order to make the relative misery of others unmistakable. Furthermore vanity causes people, in Rousseau's phrase, to live constantly outside of themselves, existing only in the opinions of others, and engaged in the endless and futile work of gathering the envy of their fellows (D 187). For the community, it causes its members to regard each other as competitors 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 place oneself 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

16

Rousseau's Theory of Freedom

able to coordinate their actions for mutual benefit. Because Rousseau's theory relied more on vanity than on competition and fear to explain the source of conflict in the state of nature, his account of the basic problem of cooperation has a slightly different cast than that of Hobbes, by whom he was greatly influenced. It is difficult to be precise about the difference, however. If I may speculate, I think that one motivation for Rousseau's frequent, vitriolic criticisms of Hobbes was that, sensing that their theories were similar on this point, he distanced himself by insult when he feared of being unable to do so by argument (D 151, S 164f). In any case, Rousseau believed that some low-level cooperation is possible in the state of nature. He said of this so-called natural man that 'he was in a position to distinguish between the rare occasions when common interest should make him count on the help of his kind, and the even rarer occasions when competition should make him suspicious of them. In the first case he united with them in a herd.... In the second case everyone sought to seize his own advantage' (D 163). He expressed his take on the problem of mutual aid in the state of nature by 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, without a doubt, have chased after it without a scruple and, after catching his prey, have cared very little about having caused his Companions to miss theirs' (D163). In this light, the social problem concerns how to encourage people to move from a kind of reasoning that emphasizes risks to one that emphasizes pay-offs. 10 This problem only exists at certain stage of the state of nature, however. Eventually, society becomes complicated enough that government is required, at which point the powerful foist some kind of political order on everyone else, under which people are compelled by law and punishment to do what they may or may not have chosen to do in the prepolitical condition (D 172f). These considerations explain how the two works go together and what light the earlier sheds on the later. The reason that one depicts the state of nature as peaceful and the other as violent is that they describe two different things. One describes the most basic existence of people who are motivated only by pity and a concern for self-preservation; the other depicts the existence of people living under some scarcity and with a fully developed sense of vanity. To put it somewhat simply, the state of nature that The Social Contract begins with is the one that ends his 'Second Discourse. ' Thus, the state of nature is a generic term. Rather than identifying a single state of affairs or way of life, it was his general term for all human life outside of the social contract. This gives an indication how the two works go together when they seem so different on the surface. They represent different states of human affairs outside the social pact. The former describes humanity as it 'issued from the hands of nature',

The state of nature

17

while the other describes 'men as they are'. He referred to both of these conditions 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 conventions of 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 of nature, 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 to create a vocabulary to name each stage of evolution; but, for the purpose of understanding The Social Contract, one point must be clear. Humanity does not 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 abstract that 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 because in the earlier work he was ambiguous about what defines political society, and so about where to draw the line between the state of nature and political society. He said that he would not now enter 'into the inquiries that still remain to be pursued about the Nature of the fundamental Pact of all Government', and instead limits himself to 'common opinion' about the nature and foundations of politics (D 17980). He intended The Social Contract to be the more 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 state of 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 state of nature. Furthermore, he argued that once humanity leaves the state of nature by entering political society, it can easily revert back. When civil life breaks down, 'everything reverts to the sole Law of the stronger, and consequently to a new State of Nature, different from that with which we began in

18

Rousseau's Theory of Freedom

that the first was the state of Nature in its purity, whereas this last is the fruit of an excess of corruption' (D 186). It is impossible, on the other hand, to imagine 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 say this 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 began with '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 his theory of the social pact. One significant question remains, however. Rousseau'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 other times the theory appears hypothetical; it seems more like a story about the career of a certain kind of imaginary species. Furthermore, both of these options present difficulties because, with regard to the first, the history is perhaps not very plausible and, with regard to the second, the philosophical value of such a fictional story is not clear. Therefore, the last thing required to grasp his theory of the state of nature is to look at what it is a theory of, which has consequences 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 unambiguously 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 to or changed in his primitive state' (D 124). This is a reasonable way to frame the issue if he meant to investigate the historical origins of social and political institutions. The issue becomes cloudy soon afterwards, however, for when speaking of the task he said, 'For it is no light undertaking to disentangle what is original from what is artificial in man's present Nature, and to know accurately a state which no longer exists, which perhaps never did exist, which probably

The state of nature

19

never will exist' (D 125). The phrase, 'perhaps never did exist', makes the matter difficult. Furthermore, he next says, 'Let us therefore begin by setting aside all the facts, for they do not affect the question. The Inquiries that may be 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 can clarify 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 other idea about what it means to show the origin of something. Most interpretations of the 'Second Discourse' lean toward one of these options or the other;

Alessandro Ferrara calls them the 'realists' the 'rationalists'. 13 While I believe
that the rationalist interpretation is the right one, the evidence is difficult to sift through. Of those who believe that Rousseau meant to be a historian, the most plausible 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 prehistory of the human species. To answer the question of why Rousseau so often denied that he was interested in history, Hall argues that he wished to hide his intentions for fear of religious persecution. He argues that if Rousseau had been explicit about his historical intentions then, because his theory is incompatible 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 comments seemed to hint in this direction, albeit obliquely. 'Religion commands us to believe that since God Himself drew Men out of the state of Nature immediately after the creation, they are unequal because he wanted them to be so; but it does not forbid us to form conjectures... about what Mankind might have become if it had remained abandoned to itself (D 132). Hall says that, 'This sentence was obviously written with the tongue firmly 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 showing how Rousseau's state of nature can have explanatory power. The facts one 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 he finds is not a merely factual one. He does not criticize Rousseau's source documents, nor does he spend much time reviewing the modern anthropological

20

Rousseau's Theory of Freedom

data. Rather, he rejects Rousseau's account of history because it is based on an implausible idea of human nature, namely the false assumption that 'for any natural species there is (or, but for man's interference, would be) some natural environment and some set of instinctive behavior patterns such that if a number of members of the species were placed in that environment they would, unless artificially inhibited, adopt the instinctive behavior patterns and, as a result, live and multiply successfully'. 15 The reason this is false, according to Hall, is that many animals, including human beings, acquire only in their social life the knowledge and skills that allow them to survive and multiply in their environment, and that thus define their nature. His example is a bird called a jackdaw, which on the basis of instinct alone has no sense of which creatures in its environment are dangerous. The knowledge is passed from one generation to the next by a kind of show-and-tell in which adult birds indicate to the young various animals in their surroundings and emit a special sound when the animal is a dangerous one. The details of the argument are based on the research of Konrad Lorenz, the quality of which I am unable to judge. Whatever the status of the zoological evidence, however, Hall points to a deep issue. Certain creatures abandoned to themselves would not flourish; they would die, or at least have lives that are unnatural for that species, which is to say that they would not exhibit 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 consequences obscures rather than reveals their essence. For example, an entomologist who studied what ants do when they are not part of a colony would discover nothing about the pure nature of ants because part of that nature is to be a member of a colony. Hall goes on to argue that such is the case with humans. To imagine a human being who has not had a social life, to imagine in particular a human being whose capacity for language has not been developed, is to imagine something that is not a human being. The consequence is that Rousseau's state of nature fails as a historical theory. 'In other words, the state of nature, as Rousseau understands it, could not now exist and never could have existed. Before language there were no men, but only apes; and Rousseau is interested in human nature, not in ape nature'. 16 Hall's argument is exceptionally powerful as long as one believes that Rousseau intended his theory of the state of nature to describe historical reality. The reasons to accept Hall's interpretation, which requires that many of Rousseau's most adamant statements be read as ironic, are that sometimes Rousseau himself suggested that his work is historical and that otherwise the state of nature seems to have no explanatory value. As for the 'rationalist' interpretations of the state of nature, the best one known to me is that of Gourevitch, who at the outset closely follows Hall.

The state of nature

21

He sees that when Rousseau said we should set the facts aside, the facts in question are the biblical ones and that, by setting them aside, Rousseau avoided the appearance rejecting the orthodox reading of Genesis. 'It is hypothetical and conditional reasoning because otherwise it would clash head-on with the Divines' interpretation and so invite their censure'. The difference is that while Hall interprets this as meaning that the reasoning is not hypothetical after all, Gourevitch says that, 'it would be a serious error to conclude that that is the only reason why it is conditional and hypothetical, or, as Rousseau also frequently says, conjectural'. The reasons he gives about why the state of nature is necessarily conditional are those that Hall gives about why it is a poor historical theory. The state of nature is 'the state of men without any acknowledged bonds whatsoever. It would, for example, be a state without - prior to - the family properly so called'. 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 impossible to believe that a recognizable human being could live in such conditions, Hall thinks Rousseau's argument fails, whereas Gourevitch proposes that this is precisely Rousseau's point. Because it is impossible to believe that a recognizably human being could live in such conditions, the state of nature is necessarily 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 state of man free of artifice or convention, one is therefore compelled to conjecture'.21 Gourevitch means that when Rousseau says the state of nature is a matter of hypothesis only, he does so not simply because his facts contradict the biblical facts, but also because the state of nature could probably never be a matter of fact, which is to say it could never exist in history for the reasons that 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 Rousseau was a poor historian but that his account was never intended to be historical. He says that, 'However compelling one may find Rousseau's conjectures in Part I of the Discourse, they remain conjectures. He knew that they are conjectures; he said that they are conjectures; and he very clearly spelled out the reasons why they necessarily are conjectures quite independently of the biblical account'. Language is a crucial issue for both interpretations. Hall argues that, since it is part of human nature to use language, a portrayal of a being without convention, which is to say without language, is a portrayal of something that is not a human being. 'The conclusion must be that man is adapted by evolution to be a language-using species. No other natural life is left open to him. The purely instinctive life has been left behind irrevocably along with the apesized brain. There is therefore no natural life of man that does not involve

22

Rousseau's Theory of Freedom

artificial elements'.23 For Gourevitch, the same reasoning shows why Rousseau did not intended the state of nature to describe a historical condition. 'The demonstration that every attempt to assign an absolute beginning to language - or to mutual understanding, or to moral relations - is inevitably circular, serves as a conclusive reductio adabsurdum of the premise of wholly isolated, self-sufficient, speechless individuals, and so to the pure state of nature as a possible "fact given as real" '. Gourevitch argues that, although Rousseau said that he would explain the origin of inequality among men, one should not assume that 'origin' means historical development, and that 'men' means Frenchmen, Englishmen, and the like. Instead, Gourevitch argues, Rousseau took aspects of the human character as it does exist in fact and abstracted them from their concrete reality. Of all the features that human beings do or could possess, he took the desire for self-preservation, the capacity to feel pity, perfectibility, and a few others, and removed them from their particulars. He then assembled them into a simplified, purified being that he called natural man, but who never appears in nature. The fact that this person could not be real is irrelevant because it was intended to embody a principle, not to be a fact. I believe that Gourevitch's interpretation is preferable. Certainly it is better for those who practise a version of the principle of charity, according to which the arguments of others should be put in the best light possible; this is the case because on Gourevitch's reading Rousseau is a more subtle and interesting thinker than the misguided historian of Hall's analysis. Besides this, however, other considerations count in Gourevitch's favour. He can, to begin with, account for more of the text because Rousseau himself often said that his work was hypothetical not historical. While one must grant that there are a number of ambiguous passages, each time that Rousseau was explicit about 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 an interpretive tool in the way that Hall does. While it may be true that some authors say the opposite of what they mean, I think that the benefit of the doubt should fall on the side of frankness because, while the surface meaning of a text is not an infallible guide to an author's intentions, it is presumably the best guide in the absence of other explicit evidence. So, if it is possible to make sense of a text by assuming that the author meant what he said I cannot see why, other things being equal, one should assume differently. Lastly, Gourevitch's interpretation shows more historical awareness than Hall, who explains much of the 'Second Discourse' as prudential dissembling on Rousseau's part without explaining what topics were controversial in 1755, or who was persecuting whom and by what means. After all, Rousseau is one of

The state of nature

23

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

Gourevitch's interpretation of the 'Second Discourse', according to which the state of nature is a hypothetical depiction of a kind of natural person who never actually existed in history, is generally the more plausible account of Rousseau's intentions. It does, however, raise the problem that Hall's interpretation is able to avoid. How does the hypothetical state of nature explain the origin of real inequality? This question has not been the topic of much thematic scholarly debate, which is understandable for those critics who think that the state of nature describes a historical condition, because on that interpretation its potential explanatory power is obvious. But a minority of critics 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, the problem remains. The denatured and non-existent creature that Rousseau described seems odd and philosophically useless only for as long as one thinks of him as offering an explanation in the form of historical development. If, instead, by the term 'origin' he meant something other than genealogy, then the natural human being might be more philosophically fruitful. In its use of this conjectural being, Rousseau's method of explanation is reminiscent of that described by Aristotle in his Metaphysics. In his discussion of mathematics, Aristotle said of numbers and geometric entities that they are separable from material things in thought, even though they are not separate in fact. Leaving to one side the ontological mysteries into which this principle leads him, his thesis is the same as one finds in Rousseau's analysis of the pure state of nature. The attributes he described can be thought of separately from actual people, even if they were never separate in history. On this analogy, Rousseau's idea of the natural person functions like the idea of triangle in a geometric proof. Although a geometric triangle cannot in fact be separated from colour, mass, location and the other attributes of all actual triangles, it can be separated by an act of the intellect. Similarly, although the elements of pure human nature cannot be found apart from the qualities of all living individuals, such as the use of a certain language, social customs, and other accidents, they can be separated by the act of abstraction. On this view, the 'Second Discourse' presents the result of this separation in thought. To continue with the analogy, one could give many different answers

24

Rousseau's Theory of Freedom

to the person who asks for an explanation of a given real triangle. If it is a triangle drawn on a chalkboard, for example, one could describe the friction between chalk and slate. Alternatively, one could give the definition of a triangle. Getting nearer to Rousseau's case, if someone wants an explanation of a person, one could name the person's parents, or one could define a human being. The latter is as good an explanation as the former, and for most purposes it is superior because, to use Aristotle's vocabulary, formal causes are more significant than either efficient or material ones. This interpretation raises a question, however. If Rousseau meant simply to explain 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 of the 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 inequality but rather to explain the origin of inequality. Does this not commit him to a historical explanation? The answer depends on what one means by origin. If one means development in time, then the question answers itself. But this is not the only way to explain the origin of something. In fact, the analogy to geometry is especially useful here. The first proposition of Euclid's Elements describes how 'to construct an equilateral 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 possible because the given line is of finite length. ) And for each circle, the radius is the length of the given line. Next, new lines are drawn from each end of the given line to an intersection of the circles. The resulting triangle is equilateral because each side is equal to the base, and so to the other side, for the reason that each is a radius of a circle for which the base is also a radius. Now, imagine that someone at a chalkboard in a geometry class draws three lines forming a roughly equilateral triangle. What answer shall one give to the question, 'What is the origin of the figure?' One could explain it in terms of friction between the chalk and slate, or even in terms of the student's desire to get a good grade. Or, one could explain it in terms of the first proposition of the Elements. In most cases, the last explanation is the most consequential; and it is certainly so for someone who desires to understand plane geometry as opposed to mechanics or psychology. As matters of fact, there are no geometric points, lines, or circles from the perspective of what may be empirically observed. Presumably, no one has or even could observe a line in the geometric sense of a 'breadthless length'. But this does not diminish the power of the geometric explanation. To understand the geometric origin of the real figure is to understand it as if it developed in such-and-such a way, even though it did not and could not have so developed as a matter of history. Its factual origin is irrelevant and generally insignificant because the figure becomes intelligible when it is grasped as a consequence of

The state of nature

25

principles. This analogy helps to explain how a non-existent condition in the past can explain the origin of real inequality in the present. The term origin need 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 of inequality is not particularly significant because such instances are grasped when 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 inequality but also with the question of whether it is justified by natural law. While Rousseau'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 tradition (D 126-7, 842-3). Grotius had set out to discover whether there are any laws of morality that derive from nature itself or whether all morality is relative to culture and convention. In doing so he distinguished between two ways of discovering the natural law, which he called the a priori and a posteriori methods. The a priori method, 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 certain but farther reaching, discovers the natural law by looking at what principles most people or nations accept, even if one is unable to deduce them directly from human nature. Rousseau believed that the a posteriori method, which makes inference from fact to law, is absurd for reasons expressed in the epigraph of the 'Second Discourse', 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 good according to Nature' (D 113).28 In other words, one cannot use the a posteriori method 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 the healthy, and vice versa. The knowledge of what is appropriate to a healthy person 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 natural law all the abuses of corrupt governments. 'One could use a more consistent method', he said, 'but not one more favorable to Tyrants' (S 42).

26

Rousseau's Theory of Freedom

This explains why, in order to answer the question proposed by the Academy 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 natural 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 For background on the distinction between the rational and the reasonable in social 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 philosophical system is: Arthur Melzer, The Natural Goodness of Man: On the System of Rousseau'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, JeanJacques Rousseau: A Friend of Virtue (Ithaca: Cornell University Press, 2003) Chapter 5, 'Justice, happiness and virtue'. There are, however, limits to this interpretation. 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 (Chapter 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, 1.

The state of nature

27

11. 12.

13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

26.

27. 28.

2004). My review of Skyrms's book is in Ethics, vol. 115 no. 1 (October 2004), 166-9. Victor Gourevitch, 'Rousseau's pure state of nature', Interpretation, 16 (Fall 1998), 33. 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 Rousseau (Oxford: The Clarendon Press, 1972), 96. 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. John C. Hall, Rousseau: An Introduction to his Political Philosophy (Cambridge, Mass.: Schenkman Publishing Company, 1973), 30. Hall, 32. Hall, 33. Gourevitch, 'Pure State of Nature', 28. Gourevitch, 'Pure State of Nature', 28. Gourevitch, 'Pure State of Nature', 31. Gourevitch, 'Pure State of Nature', 33. Gourevitch, 'Pure State of Nature', 34. Gourevitch, 'Pure State of Nature', 34. Hall, 32. Gourevitch, 'Pure State of Nature', 55. 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', Journal of the History of Ideas, vol. 62 no. 2 (April 2001), 245-63. 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). 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). Aristotle, The Politics, ed. Stephen Everson, Cambridge Texts in the History 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, which defines 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 his theory of human nature expressed in the device of the state of nature, something that should be fairly clear by now. It is a hypothetical condition of selfinterested, rational, and independent persons, who have a strong sense of vanity 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 terms under which such a union would be rational for people of this kind in the conditions 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 speculated that, as a matter of history, law probably first came into existence as a trick played by the wealthy on the poor. 'The rich, above all, must soon have sensed how disadvantageous to them was a perpetual war of which they alone bore the full cost, and in which everyone risked his life while only some also risked goods' (D 172). To protect their possessions better they talked others into 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 anticipating 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 part only a hypothetical agreement, although good societies will embody its principles 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 as much 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, or some 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 previous chapter, 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 to everything that tempts him and he can r e a c h . . . which has no other bounds than 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, the only political organization that can make claims of moral obligation on its citizens is one to which they give their assent without coercion (S 41). This is the point of his comment 'that force does not make right, and that one is only obliged to obey legitimate powers'. And, he continued, 'Since no man has 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 people would agree to is that there is no standard of good behaviour toward other people beside what the social contract requires. He made the same point even more emphatically in a draft of The Social Contract called the 'Geneva Manuscript', in which he argued that 'the law precedes justice, not justice the law' (S 160). Behind this general approach to politics is the view that the justified use of coercive power by one person over another must be based on principles that the coerced person could agree to. As readers of his work know, Rousseau believed 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 the opening passages of the book. When a stronger person tells a weaker one what 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

30 Rousseau's Theory of Freedom else than the mere power of the stronger; and Rousseau believed that it must come 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 too compressed in these passages, because on the surface it appears to commit the fallacy of false bifurcation. He seemed to say that legitimate authority must come either from force or from consent, and since is does not come from the former it must come from the latter. The argument is clearly valid, yet just as clearly the first premise seems dubious, or at least it requires further argument. There are many other ways of thinking about the basis of political authority ranging from God's will or reason, to theories of human flourishing, to utilitarian arguments about aggregate happiness. So, even if he did succeed in showing that force cannot be the foundation of political authority, which was his primary goal in the first sections of The Social Contract, he seems to have fallen short of demonstrating that it must be found in conventions. The answer to this objection, I think, is that Rousseau simply assumed for the purpose of this work that people have no natural duties. He said little to defend this point besides some disparaging remarks about philosophers who try to base political authority on religious foundations (S 44). His was a thin account of what people owe to one another, to say the least, yet it had the advantage of providing a normative theory of politics that does not appeal to controversial and perhaps indemonstrable claims about God and morality. Speaking generally, his line or argument was simply a version of the principle that the moral obligation to obey one's legitimate rulers comes from the consent of the governed, or rather that a ruler is legitimate precisely because the governed have consented to be so ruled. This is the reason that the basic question of his philosophy concerns the principles rational people could consent to be governed by.

2
Starting from his theory of the state of nature, Rousseau set out to describe the terms of a social contract that people in such a condition could assent to. Even in light of his detailed theory of the state of nature, however, he argued that it is difficult to specify the terms of the contract because the people who enter it face a dilemma that makes it seem impossible for them to come to an agreement in the first place. In the state of nature it is generally irrational to form pacts with others because doing so limits one's options when it comes to preserving oneself and one's possessions; thus, people who wish to create a social contract encounter the problem that he formulated as follows, 'This sum offerees can only arise from the cooperation of many: but since each man's

Political society 31 force and freedom are his primary instruments of self-preservation, how can he commit them without harming himself?' (S 49). It is generally irrational to give up one's power and freedom in the state of nature because these are the best means that one has to ensure one's own well-being, so people cannot easily make the concessions that a social pact requires. Rousseau argued that in light of this dilemma only one social contract is possible, the stipulations of which are simple, universal, and invariable because they 'follow from the 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 take the 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 personal utility. The primary evidence that this is the wrong approach is that his social 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 two people 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 each guard the tree from third parties and then they will meet at the tree one day per week to divide between them the apples that have become ripe in the preceding days. In this case, the party that obeys the agreement will put herself at a 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 less to 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 in her 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

32

Rousseau's Theory of Freedom

Rousseau described in his 'Second Discourse', or when they can trick others into obeying while they themselves defect. This way of formulating the issue may be too simplistic because, in circumstances where the stakes are low enough, it might be worthwhile to risk not defecting 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 her advantage not to defect either, given that the benefits of trust might outweigh the 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 rational for 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 dilemmas 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 others cooperate 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 the wrong one. To see why this is so, one need only recall his thesis that the problem of the social contract may be solved by changing the terms of the pact to those that he specified, namely that all of the associates give up all of their powers and freedoms 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 nothing to make the contract more rational. In these examples the parties worried about making even narrow agreements because doing so would put themselves 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 contract he proposed is absurd, because if these persons find it too dangerous to give 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 so obviously 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 agents whom he depicted as deliberating about mutual obligations to place upon

Political society 33 themselves; he was not concerned with everyday problems about how to maximize utility in conditions of uncertainty. His was not a problem of rational choice 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 them and reasonable enough to follow principles that they want others to follow. He concluded that under the conditions stipulated they cannot grant partial or limited duties to each other because doing so would hinder their powers of defending themselves in matters where that particular duty was not violated. 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 the sake of generating the greatest benefit to oneself. A final example will make this 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 will not strike you if you agree not to strike me'. Although this puts a limit on each 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 he begins 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 where the contract is silent. This is the kind of problem to which Rousseau's social contract was the solution. It is not a concrete problem of collective action but an abstract problem of what mutual obligations rational and independent agents can agree to place upon themselves. They cannot place partial limits on their power and freedom because they would thereby expose themselves to dangers in cases falling outside of those limits. The only arrangement that makes sense is for each to give up everything to the whole community, which means that no cases fall outside of the limits 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 party knows 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 theorists 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 if individuals were left some rights, then, since there would be no common superior who might adjudicate between them and the public, each, being judge in

34 Rousseau's Theory of Freedom his own case on some issue, would soon claim to be so on all' (S 50). I believe Rousseau meant that by forfeiting all their rights to the community under the direction of the common benefit, the associates reciprocally assure each other that no one can take advantage of another's sacrifice because no associate retains anything over which the community has no claim. If people retained any such powers, there would be a degree to which they could exploit the sacrifices of others. This would perpetuate the state of nature and the covenant would be meaningless.

With the terms of the social pact made clear, even Rousseau's defenders might agree that the complete forfeiture of one's power, freedom, and possessions to the community seems to be a dreadful arrangement. Moreover, he appeared to enjoy making it seem as onerous as possible, such as when he wrote, 'Now, the Citizen is no longer judge of the danger the law wills him to risk, and when [the government] 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, and his life is no longer only a bounty of nature, but a conditional gift of the state' (S 64). However, his theory of the social pact contained a number of qualifications that make it both more reasonable and less drastic than it might appear. The first concerns the issue of whether in fact such a total forfeiture is necessary. People today are, I think, more familiar with a competing theory of the social contract according to which the citizens of a political society keep all of their rights and prerogatives and only give up to their community a few things necessary for the general welfare. On this model the associates agree, for example, to obey the speed limit on the roadways and to pay a fraction of their income for common defence and other public necessities, so that they can keep everything else to themselves in a more secure fashion than would be possible on their own. Yet, Rousseau's theory of total alienation has advantages over this more familiar theory of partial forfeiture. For all its attractions, the latter faces a problem that cannot be answered on its own terms and to which a theory like Rousseau's offers an adequate solution. To see the problem one can ask what happens when individual citizens disagree with the political authorities about which powers and possessions the public good requires them to forfeit. Imagine for example that a wealthy person does not want to pay taxes to help the less well off because he believes that the cause of poverty is laziness and that the rich therefore owe nothing to the poor. Then imagine that the government of his community decides that he is wrong and that the social contract requires

Political society 35 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 him something 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 by making 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 the surface, 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 every political 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. How is 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 Rousseau's case in light of his criticism of Grotius, who had argued that it is sometimes rational to sell oneself into slavery. Rousseau responded that slavery is never legitimate because putting oneself into that condition could never be the result of a rational choice. 'To say that a man gives himself gratuitously [to a master] is to say something absurd and inconceivable; such an act is illegitimate and null, for the simple reason that whoever does so is not in his right mind' (S 45). Yet, the social contract seems to require just such a forfeiture by its members. The solution that Rousseau provided becomes clear by looking at his argument 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 more securely. By subordinating themselves to the common good of the community, of which they are equal members, they expose themselves to the risks involved in helping others but in return gain the security of having others who will come to their aid.

36

Rousseau's Theory of Freedom

Furthermore, Rousseau famously argued that while everyone forfeits everything, each gets it back in a higher form, 'they acquire everything they have given' (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 which its owner has a unique right then strictly speaking there is no property in the 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 possessions from the state of nature revert back to their possessors in the form of property 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 he can reach', but gains 'property in everything he possesses' (S 54). He said that, 'What is remarkable about this alienation is that the community, far from 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 something else in the 'Second Discourse' and also in his Encyclopaedia entry on 'Political 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 that everyone be maintained in the peaceful enjoyment of what belongs to him' (S 2930). This passage appears to contradict The Social Contract by saying that a full right to property exists in the state of nature, a right that is in turn the ground of political obligation. This impression is made more vivid by Rousseau'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 of Government 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 legislature's power over the property of its citizens in the same vocabulary that Rousseau 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 right but rather a trick foisted on the poor. These passages present a knot of interpretive problems with many possible explanations. I think that the relationship between the 'Second Discourse' and The Social Contract is the easier one to resolve in the way suggested by Hall.

Political society 37
Hall remarks that while Rousseau did seem to say that property exists in 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, which is a possession to which one has a unique right that others are obligated to respect. When in the 'Second Discourse' Rousseau described the gradual corruption of the pure state of nature, he said that people eventually created the 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 interpretation, the contradicatopm brtween the 'Second Discourse' and The Social
Contract is one of words only. When Rousseau said in the earlier work that people 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 objects over 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 property of 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 possession and 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 fifth volume of Diderot's and d'Alembert's Encyclopaedia. This means that if'Political Economy' offered a different theory of property than the other two works, then sometime in 1754-5 he fundamentally changed his mind about the nature of political society and then changed it back before finishing The Social Contract, which is all the more puzzling given his claim in Confessions that he had 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 Rousseau's basic thesis in 'Political Economy' was that arbitrary taxation must be avoided, yet at this time he had no handy argument against it because in 1754 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.4

This interpretation has a number of problems, two of which make it impossible 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 need of an argument against arbitrary taxation because he had already presented

38

Rousseau's Theory of Freedom

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 with the intentions of the Constituents, to maintain everyone in the peaceable enjoyment of what belongs to him, and on all occasions to prefer the public utility to his self-interest' (D 180). Although Rousseau did not here discuss taxation in particular, the implication is obvious that as the duty of magistrates is to maintain people in the peaceable enjoyment of what belongs to them, they should not tax them arbitrarily. Hall is correct that the 'Second Discourse' does not offer an account of the grounds 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 argument for 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 of the essay. The argument of the 'Second Discourse' was sufficient for the purposes 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 concerning why 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 little ambiguity on the question of whether property exists outside of the social pact, which means that the details of'Political Economy' are irrelevant to understanding the former. Nonetheless, because the tension between them is too obvious to miss, one cannot feel that one has an adequate understanding of his political thought without some account of the relationship between the two works. This is a case in which the explicit meaning of the texts may be insufficient to determine what he intended because in the earlier work he seemed 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 end

this 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 natural right. Or, it could mean what Rousseau argued in The Social Contract, that political society begins by bringing property into existence and should then try to 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.

Political society 39
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 possessions to the community is the necessary condition for creating bonds of mutual obligation, which in turn help to ensure that each associate will hold those things more securely than in the state of nature. He argued that complete 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 reason to believe both that the associates would be better off in political society than 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 society into 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 were raised by David Hume in his 1748 essay 'Of the Original Contract' and have been a topic of conversation throughout the intervening centuries. 6 Although I doubt that Rousseau could answer all of them adequately, they help to clarify the intentions and limits of his theory. Perhaps the most obvious problem is that 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 pact face the problem that it never happened. Furthermore, even in the rare case of a nation like the United States that did begin in a social pact, only a tiny minority 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 on the Constitution in the first place, namely the members of the various state legislatures; and many of them voted against it. Furthermore, those legislators were themselves elected by the small minority of the total population consisting 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 obligated given 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

40 Rousseau's Theory of Freedom States along with every other existing constitution are nothing like the system that Rousseau advocated, even though he argued that the 'clauses of this contract are so completely determined by the nature of the act that the slightest modification would render them null and void' (S 50). It seems that the only way to answer these concerns is by means of a theory of tacit consent, according to which people can be said to consent to things that they never explicitly agreed to or even understood, which is a notoriously tricky argument to make. For example, philosophers often say that if a person stays in his country and accepts the benefit of the laws then he has tacitly consented to be a member of that political society even if he was given no vote as to its founding principles. However, this seems to belittle the idea of consent, 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 free choice 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 consents to the dominion of the master; though he was carried on board while asleep, 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 contract, it has little effect for Rousseau's because he was clear that the contract he described was not intended to depict a historical or factual event. For the reasons I have discussed, the social pact functions as an ideal answer to the question concerning the terms under which abstract rational agents could put bonds of obligation upon themselves. It functions as an ideal in light of which one may better understand the nature and justification of existing institutions, 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 can help to understand the nature and justification of real political institutions. I believe that Rousseau's answer was similar to the one I discussed in Chapter 1. 5 concerning how his hypothetical state of nature could explain the origin of real inequality. Rousseau did not imagine that some time long ago people came together and arranged their political affairs along the lines described in The Social Contract. Rather, the contract shows the terms under which a political union might be voluntarily entered into instead of being imposed against the wishes and interests of its members. In this sense the social contract is an ideal for society in light of which one can judge existing institutions. His reader can compare its terms to the ones that seem to be embodied in actual political arrangements and thereby learn something about the nature and justification of those arrangements. To clarify this method Rousseau used an analogy to physics. In explaining the path of a body in motion, a physicist might begin with the idea of movement across a frictionless surface. As a matter of fact,

Political society 41 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 surface, even though it does not exist and perhaps could not exist, provides a kind of principle in light of which one may better understand what actually happens. Similarly, the social contract functions as an ideal in light of which one

may understand the real.

Hume's other objections, however, are more difficult to resolve in the terms of 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 relevant because, presumably, people are not bound to their agreements in cases involving force and fraud. To take a simple example, imagine that a person at the point of a gun agrees to give his wallet to a thief; if at that moment the criminal faints, the victim would presumably be justified in keeping his wallet 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 concurred 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 if some people do agree to remain slaves even when freedom is offered their consent is not genuine because their prior, involuntary servitude has robbed them of their power to make free and informed choices (S 43). Thus, Rousseau should have stated the conditions that must exist for a social pact to bring real obligation 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, on this reading, because the associates agree to it under conditions that are themselves fair; yet if this is the answer that he intended to give, then his theory 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 if there 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 determines what is fair then it is impossible to say that it must be created under conditions that are themselves fair.

42

Rousseau's Theory of Freedom

In some passages he seemed to offer a solution to this objection; but it leads to the opposite problem. The solution is to say that the social pact does not create justice it only confers the authority to enforce natural principles of justice. Indeed, this is what he seemed to mean by saying, 'What is good and conformable to order is so by the nature of things and independently of human conventions. All justice comes from God, he alone is its source... [but considering] things in human terms, the laws ofjustice are vain among men for want of natural sanctions' (S 66). This reading has the advantage of explaining what it means to say that the social contract must be made under fair terms, because those terms would be the ones consistent with the natural principles ofjustice. But this raises the opposite problem from above. If there are natural principles ofjustice then what does it mean for Rousseau to say that in the state of nature I owe nothing to those I have promised nothing? Presumably I would owe them whatever the natural principles of justice require; otherwise they would not be principles ofjustice in the first place. In short, either principles ofjustice exist outside of the social pact or they do not. If they do not, then how can Rousseau distinguish the kinds of consent that produce real obligations from those that do not? If they do, then how can he argue that there are no natural duties and that all obligation is founded on conventions? I am not sure that it is possible to resolve this dilemma on the terms that he offered. He certainly leaned toward the side which 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 promised nothing and by his claim in the 'Geneva Manuscript' that law precedes justice. Yet, it seems he also sensed the difficulties raised by such a radically voluntaristic theory. 10 Hume's third objection is related to this previous one and is no less powerful for 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 associates would be required to respect each other's property. If someone raises the question of why she is obligated to do so, the answer would be that such respect is due by the terms of the social contract to which she had given her consent and promised to obey. But if she further asks why she should keep her promises, there is a problem. If all obligations are based on promises then there is nothing outside of the pact in reference to which it is obligatory to keep one's promise to obey the terms of the pact itself. Or, if there is some such thing, then promises are unnecessary as a foundation for duty, and the whole 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?

Political society 43
Nor can you give any answer, but what would, immediately, without any circuit, have accounted for our obligation to allegiance'. l I should mention one final objection to his theory of the social pact, one that Hume did not discuss but which is exceptionally important in light of much political philosophy today. Above I argued that the best way to understand the social contract is as an idealized agreement between abstract rational agents in a hypothetical circumstance called the state of nature. Its purpose is to reveal the principles that reasonable agents might use to create a political society by uniting themselves through mutual obligations. I argued further that the theory was intended as an abstract ideal in light of which one might better understand the nature and justification of existing political institutions; and I defended Rousseau in his general line of argument by comparing his use of the state of nature and the social contract to a physicist's use of ideas such as a frictionless surface. Yet these last two cases are not exactly analogous; and this is the source of a problem. The physicist's theory is purely descriptive and explanatory; it is designed to describe and predict the paths of bodies in motion. This means that the ultimate test of an abstract notion such as a frictionless surface is whether it allows one to predict the phenomena in questions in an accurate and wide-ranging way. Rousseau's theory is not quite like this because it is normative rather than descriptive; he intended to explain not what is the case but what should be the case. In this light, it is not clear what can count as evidence for or against his theory, because it is precisely a theory of what is not so. In other words, one can certainly ask the question of whether the social agreement he described is a rational and reasonable thing to do for people in the stipulated circumstances; but since those circumstances are hypothetical, their relevance to existing people and institutions is not as clear as are the abstractions employed in the physical sciences, because they are intended to yield normative conclusions not merely descriptive ones. I am not certain that these last three objections can be answered in the terms that Rousseau's philosophy offered. In any case, to the extent that this reading is correct, many of the problems have the same source in his philosophy, namely his effort to combine two doctrines that do not go easily together. He wished to argue both that people have no natural duties to one another and also that once political society is established they have obligations to other citizens that go beyond mere prudence, or calculations of enlightened self-interest. Each of these premises is enormously attractive taken by itself, which makes Rousseau's effort to combine them something of enduring philosophical interest. In fact, it may be that the only way to do so is by means of a theory like Rousseau's that bases obligation on covenants. Even if he failed to solve the problem completely, his effort clarifies the nature of the case; and if

44

Rousseau's Theory of Freedom

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

5
All of the characteristic features of Rousseau's political philosophy flow directly from his account of the social pact. There is to begin with his theory of sovereignty and the concept of the general will. He argued that since the associates to the social contract agree to subordinate themselves to the good of the community, some instrument is necessary to determine what that good consists in. This is the role that he assigned to the Sovereign, which is his somewhat misleading term for the lawmaking body within political society. The purpose of the law is to declare what kinds of actions will be required or forbidden in order to promote the well-being of the community, to which the citizens have pledged themselves (S 61). The job of the Sovereign is, 'the specification, by various particular laws, of the actions that contribute to this greatest good [of all]' (S 160). To express the idea of the greatest good of all \le bien commun], he often used the term 'general will', which stands in opposition to the 'particular will' 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 themselves, 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 two very difficult questions. Does it refer to something purely abstract such as 'the good life', or to something concrete about the good of a particular community in a particular time and place? And second, could an ideal observer at least in principle discover the general will independently of the judgment of the political community in question; or is the general will nothing other than the properly qualified and aggregated judgment of that community? For now it is unnecessary to resolve these issues, as long as the distinction between a general will and a particular one is clear. The general will is for the good of the community while the particular will is for the good of a subgroup or individual (S 57, 59). To use a simple example, say that an enemy army is massing at the borders in preparation for an invasion. The good of the community, as an association of citizens persisting through time, includes self-preservation as its first principle, which at this moment requires that able-bodied persons 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. Yet this is not necessarily what each person wants, because it may not be to the individual person's benefit to go to the border. It is much safer to stay away from the fighting, plus if the nation is overrun the draft-dodger might be able to plead a better case to the invading power.

Political society

45

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 country. However, the particular will need not always deviate from the general will even when the person involved is very selfish. If the particular will and general will did not overlap on at least some occasions then society would never come into being in the first place; 'for while the opposition of particular interests made the establishment of societies necessary, it is the agreement of these 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 do best for herself by sitting out even at the price of a victory. Perhaps at a crucial 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 suffering later 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 individuals. This was Rousseau's point in distinguishing between the general will and the'will of all' (S60). In addition to sovereignty, law, and the general will, a fourth important idea is that of the Prince, which is another of Rousseau's slightly misleading terms. The Prince is his name for the executive branch of the political authority, 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 institutional structure 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 public spirit. Yet, they cannot get these qualities from the political society itself because they are necessary conditions for such a society to come into being in

46

Rousseau's Theory of Freedom

the first place. Thus there must be something outside of, and prior to, the social pact that forms its members into potential citizens; Rousseau's name for this entity is the Lawgiver. The most important thing to realize for now is that, on his theory, the Lawgiver does not actually make the law, a fact that can be somewhat confusing. In his technical usage, the term law refers only to the decisions of the Sovereign regarding the actions that will be compelled or forbidden in the name of the common good. Conversely, the Lawgiver establishes the conditions of political society but has no authority to pass laws within that society; he said, 'This office which gives the republic its constitution has no place in its constitution' (S 69). In any case, the terms of the social pact and the system of institutions that follow from it provide the context for understanding Rousseau's theory of freedom. I mentioned at the beginning his view that a political society should offer its citizens three kinds of freedom: civil freedom, democratic freedom, and moral freedom. The nature and scope of each as well as their relationships 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 freedom is that the motivation of the associates to enter the contract is the preservation of themselves and of their possessions. They do not enter it in order to become free, except in the equivocal sense in which people speak of freedom from fear. Nonetheless, their freedom is a direct consequence of the terms of the 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 recent version see, Skyrms, Stag Hunt, 1-13. Although I have used both male and female pronouns when discussing Rousseau's political philosophy, the place of gender differences in his theory of the social pact is a vexed issue. For a survey see, Elizabeth Rose Wingrove, Rousseau's Republican Romance (Princeton: Princeton University Press, 2000), 'Introduction'. For its implications regarding his theory of freedom see, Ursula Vogel, ' "But in a republic, men are needed": guarding the boundaries of liberty', Rousseau and Liberty, ed. Robert Wokler (Manchester: Manchester University Press, 1995), 213-30. Hall, 44f. Hall, 49. Unfortunately, the best attempt to demonstrate the coherence of Rousseau's work skates over the issue: Melzer, Natural Goodness, 184. David Hume, 'Of the original contract', Essays: Moral, Political, and Literary (Indianapolis: Liberty Fund, 1985), 465-87.

2.

3. 4. 5. 6.

Political society 47 Hume, Essays, 475. 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. Maurice Cranston 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. For Rawls's response see, Justice as Fairness: A Restatement (Cambridge, Mass: Harvard University Press, 2001), 17-18. For an attempt to defend Rawls and by extension Rousseau 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, Bertrand de Jouvenal, 'Rousseau's theory of the forms of government', Hobbes and Rousseau, 484-97. For his theory of checks and balances between the Sovereign and the Prince see, Mads Qyortrup, The Political Philosophy of Jean-Jacques Rousseau: The Impossibility of Reason (Manchester: Manchester University Press, 2003), Chapter 3, 'Checks, balances, and popular participation: Rousseau as a constitutionalist', 48-73. For the difficulties that this theory gets Rousseau into see my article, 'A paradox of sovereignty in the Social Contract1, Journal of Moral Philosophy, vol. 3 no. 1 (April 2006). 7. 8.

Chapter 3 Civil freedom

1
The foregoing account of political society provides the context for understanding Rousseau's theory of freedom, to which I will now turn. He argued that a political system founded on the social contract would offer its citizens a number of different kinds of freedom. The easiest of them to understand is what he called 'civil freedom', which I will sometimes refer to by the more common terms 'civil liberty' and 'civil rights'. Although this is the easiest kind of freedom to grasp, it bears on two independent and complicated aspects of 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 liberty clear it will be useful to compare it to the freedom that he said exists in the state 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 the absence of external constraint; yet the kind of constraint in question and the reasons for its absence are different. The basic idea of natural freedom should be clear based on what has come so far. Since Rousseau denied that people owe any natural obligations to one another, natural freedom was his term for the prerogative of each person in the state of nature to do whatever he or she wishes and can get away with. Rousseau denned it as 'an unlimited right to everything that tempts him and he can r e a c h . . . which has no other bounds than the individual's force' (S 54). In this sense the term natural freedom refers to the absence of duties that might limit what a person can or should do in the state of nature. To some readers, natural freedom might appear to be something worth having because the absence of obligation opens up certain vistas on what kind of life is possible; certainly this freedom from obligation would create room for living the life of one's choosing unconstrained by claims from other people on one's own time, energy, and resources. This person might question whether the sacrifices required by political society are worthwhile given its implication that people submit themselves to the common good of the community. 1 Rousseau argued that the exchange of natural freedom for artificial duty is generally 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, particularly in view of scarcity and vanity in the state of nature, people would be continually harassed by their equals and subdued by their superiors, the difficulties 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. However, 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 nature refers 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 exist in 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 significant because of his claim that it is part of the same philosophical system as The Social Contract. This is a problem because Rousseau seems to have believed two things that do not go together: that people have no natural obligations to one another and that they also possess certain natural rights. This appears absurd because if one person has a right to something then presumably other people have a duty to respect it, otherwise it would not be a right in the first place. But if these others do have such a duty, then Rousseau contradicted himself when earlier he said that there are no such natural obligations. This issue is very significant. 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 contract are 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 her turns 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

50 Rousseau's Theory of Freedom 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 right of way in any significant sense of the word. Now, it is true that the concept of rights was one of the most contested ideas in the political thought of the seventeenth and eighteenth centuries, which means that one should not assume too much about what any particular thinker meant by the term; specifically, there is great room for debate about the relative priority of rights and duties. For all this variety, however, I cannot see what it would mean to say that a person has certain rights but that other people have no obligation to respect them. Yet, this seems to be the view that Rousseau advocated, according to which, for example, people have a meaningful natural right to property but have no natural duty to respect each other in their property. There are at least four possible interpretations of the problem. Rousseau may have attached a completely different meaning to the word right than that of a moral claim; he may have used the word to mean a moral claim but then presented a new theory of rights according to which it is possible to have moral claims without correlative obligations; he may have contradicted himself; or he may have misspoken. While there may be no strictly textual way to determine what he meant in these passages, there are reasons to prefer the fourth option. If the first is correct then I do not know what he meant because he normally used the idea of rights to refer to moral claims; the second interpretation seems far-fetched and there is nothing in his philosophy to support or fill out such a theory; and the third seems unlikely only because the contradiction is so obvious that it is difficult to imagine Rousseau missing it. Thus I think the most reasonable thing is to conclude that he did not quite mean what he wrote. However, once the reader is thus decoupled from what the book actually says, it is not clear what counts as evidence for one interpretation rather than another. The problem is particularly acute here because, if it is true that he misspoke, the question remains about which passage is the mistake and which is the real theory. Did he misspeak when he defended natural rights 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 one passage as definitive without begging the question. Rousseau unquestionably said that all rights come from conventions (S 41) and that people owe nothing to those whom they have promised nothing (S 66); yet he also said that each person in the state of nature has a right to everything he needs and that first occupation confers a natural right to property (S 50, 54). To add to this confusion, he gave a further alternative in his 'Second Discourse', which argued that 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 to one 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), and that it is the source of all duty and all rightful authority (S 44, 56). The only way 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 of the work. Furthermore, one can readily guess what might have caused Rousseau to fall 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 might have 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 nature has 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 of duties that might limit one's options in the state of nature. In fact, this 'unlimited right' is almost the only natural right that he mentioned, which suggests that he did not use the term in the strict sense that he employed with reference to political society. It is interesting and odd to see how he struggled with the issue particularly in the case of property rights; he said that, in the state of nature, first occupation creates more of a right to property than does mere force 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 direction 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 person bears to another based on the terms of the social pact.

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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 obligations that might prevent one from achieving one's ends. After the social pact is created, this kind of freedom obviously disappears because the nature of the pact is such that it brings bonds of mutual obligation upon the associates and thereby imposes considerable limits on their options. However, something 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 the law 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 community, which implies that at the end of the day the law can require anything 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, however, that Rousseau's theory of civil liberty was more vigorous than suggested by this appraisal. It is true that, on his theory, the Sovereign finally decides who can do what among the citizens and that the citizens must obey; this is what it means to have a Sovereign in the first place. Yet his theory of sovereignty contained significant qualifications that allow for a fairly robust kind of civil liberty. To see why this kind of freedom is more substantial than it might first appear, 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 on the part of the associates, they hold the things that remain to them in greater security because these things are protected by the whole community. This security brings with it a meaningful kind of freedom because if people are guaranteed 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 precarious way of being in favor of a more secure and better one, of natural independence 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 right made invincible by the social union' (S 63). This kind of security is significant for civil liberty. The first and obvious point is that the social contract protects each associate from dangers outside 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 community, the Sovereign would necessarily make illegal all harm of one person by 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 is obviously 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 that freedom 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 citizens. 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, it cannot be drawn more accurately' (S 150, note). This argument does not answer all objections, however. For while Rousseau'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 protected both 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 government itself. Because each associate forfeited everything to the community, there is nothing that the government cannot demand of its citizens, including their life, liberty, and property. In truth, however, things are not as dire at they look because Rousseau's theory offered considerable protection of civil liberty even against the state. First, he argued that while the state can demand anything 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 political 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 the Sovereign, 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

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that, 'The right which the social pact gives the Sovereign over the subjects does not, as I have said, exceed the bounds of public utility' (S 150). This does mean, of course, that when the common good requires something of a citizen, that person cannot appeal to independent rights against the community 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 of the 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's freedom 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 community. 'Whoever wants to preserve his life at the expense of others ought also to 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 insubstantial. 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 civil liberty of their citizens in the name of a sham public good. Readers are therefore justifiably suspicious of Rousseau's theory on which the state itself decides the limits of the state's rightful power. One must remember however that he intended the theory to describe an ideal association of abstract rational beings who unite under equal terms for the purpose of mutual selfpreservation. In these circumstances, the submission of each associate to the good of the community would leave considerable room for people to do as they pleased as long as they refrained from harming one another. One may wish 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 rational agents. 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 themselves would become oppressive and more concerned that the executive branch 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 inherent and inevitable vice which relentlessly tends to destroy the body politic from the 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 political systems. The criticism would be just only if something in his philosophy made it especially prone to degenerating into tyranny. For myself, I can see nothing like 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 would be 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 denied the existence of natural rights and therefore rejected the theories of civil liberty built 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 additional checks 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 state requires 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 of some 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 one of those who make it up' (S 63). This theory does leave some discretionary power for the Prince, or the executive body in the state; yet his general point still holds. He argued that when the Sovereign declares which freedoms the associates must give up for the common benefit, it can do so only through general rules that respect the equality of all the associates. This provides an obvious protection for the civil liberty of individual citizens. What is more, Rousseau argued that the Sovereign legislature must have a certain form that 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 themselves these limits do something to protect liberty, the more important point is how they work together. Since the laws must be ratified by the people as a

56 Rousseau's Theory of Freedom

whole, and since they must be perfectly general, there is no point in making them overly burdensome because the associates would thereby only burden themselves. The two constraints on the power of the Sovereign serve to protect the civil liberties of the citizens by limiting the kind of demands the government can make and the circumstances under which it can make them. Finally, all of the classic utilitarian arguments for individual freedom would still apply in the system Rousseau described. Many philosophers have argued that civil liberty is important because it furthers the pursuit of truth about how to live well and be happy. On this argument, freedoms regarding speech, conscience, and lifestyle are important because they advance a society's well-being or the permanent interests of humanity. If this argument is true, then the Sovereign that Rousseau described, whose job it is to promote the common good, would necessarily allow for those liberties. Indeed, Rousseau's argument provided a stronger defence of civil liberties than do those political philosophies that are based solely on the goal of promoting aggregate human happiness. One of the famous objections to these theories is that if the aggregate happiness of the community is the highest law, it might condone robbing individuals or minorities of their rights. Perhaps, to use a variation on one of Will Kymlica's examples, the overall happiness of the Roman people was maximized by watching games at the Coliseum in which innocent people were 'torn to shreds by wild animals in front of 50, 000 wildly cheering spectators'. 5 While this violation of an individual's rights might create the greatest overall happiness, it could not be justified on the system Rousseau described because the Sovereign can only pursue the preservation of the citizens and it can do so only through laws that apply equally to all, which means that it is impossible to discriminate against a minority.

These different tendencies in his theory of individual liberty come out most clearly in his discussion of religion, which was one cause of the great persecution against him following the publication of The Social Contract. His views were exactly what one would expect from what has come so far; he combined an extraordinary respect for individual conscience with an equal commitment to the common good. 'Subjects therefore only owe the Sovereign an account of their opinions in so far as those opinions matter to the community. Now it certainly matters to the State that each Citizen has a religion which makes him love his duties; but the dogmas of this Religion are only of concern to the State or its members in so far as the dogmas bear on morality' (S 150). In other words, people should be free to believe anything they want as long as what they believe does not harm the community.

Civilfreedo m

57

The interesting thing about Rousseau's theory is that he put equal emphasis on 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 a providential God exists and that in the next life the good will be rewarded and the evil punished; and furthermore, he said that 'the Sovereign may banish from 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 its being 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 citizens in this life' (S 150). He went on to say, 'Now that there no longer is and no longer can be an exclusive national Religion, one must tolerate all those which 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 fine line 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 scholars today that Rousseau was not serious about civil liberty. While this is something that readers must decide for themselves, one should at least understand Rousseau's meaning and motivation. He believed that the preservation of society is the condition for having any rights at all; thus one cannot meaningfully 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 that same liberty. Even John Locke, who is usually considered to be a more ardent defender of individual liberty than Rousseau, argued that religious toleration could not be extended to Catholics and atheists, for example, because their beliefs are destructive of the political system that guarantees individual liberty in the first place. Rousseau said nothing more than this. Furthermore, Rousseau might simply have been wrong about what beliefs are 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 will is 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 argument against extending toleration to Catholics followed these same lines but was a little more complicated because it fell into two parts. The first was that since Catholics believe that the Pope is literally Christ's vicar on earth, they can never be citizens of any state except the one ruled by the Pope himself

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because sovereignty cannot be divided. He said that Roman Catholicism is a religion 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 1467). His second argument against tolerating Catholicism was that since the state must protect civil liberties it cannot tolerate religions that are themselves intolerant of other creeds. In particular, people who 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 be damned' (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 the Prince 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 been wrong 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 the classic questions of Enlightenment political philosophy. It has perhaps never been answered definitively on either side. The question of Catholicism is more difficult to interpret today because, as I understand it, there is some division within 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 certainly 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] or torment them' (S 151). This ignores two obvious points; there is a traditional Catholic view according to which one can hate the sin but love the sinner nonetheless, and in any case there are other ways to save souls in the next life besides tormenting them. This latter point raises the tricky question of how the right to proselytize fits in with the right to other kinds of expression; yet the basic insight remains. Rousseau may have been wrong about what beliefs preserve 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 individual freedom. One must bear these considerations in mind to make a correct evaluation of his theory of civil liberty.

Because Rousseau's theory of civil liberty is exceptionally rich and nuanced, however, some scholars go to the other extreme and interpret The Social Contract as if it were concerned primarily with individual freedom. I believe this is also 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 liberty 'underscores his abiding concern for negative freedom, for the avoidance of subjugation to alien rule', from which he develops a fairly liberal interpretation of The Social Contract The idea of negative freedom that is the basis of this interpretation comes from Isaiah Berlin's famous essay 'Two Concepts of Liberty', which distinguishes between negative and positive freedom. Negative freedom concerns the question of'how much am I governed', while positive freedom concerns the question 'by whom am I governed'. While Berlin himself somewhat equivocal about the nature of positive freedom, his theory of negative freedom is easy enough to understand and is at the heart of the liberal reading of Rousseau. To have negative liberty is to have options, it is to have the ability to choose for oneself the basic contours of one's life without excessive coercion by the state or society. Berlin says that 'I am normally said to be free to the degree that no man or body of men interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others'. 9 This freedom is negative in the sense that one has room to do what one wants, particularly regarding basic liberties like expression, conscience, and movement. For decades Rousseau was interpreted by Berlin and others as one of the enemies of negative liberty; lately however he is increasingly given interpretations like that of Cullen according to which he was primarily interested in preserving a sphere of negative freedom within which people can create lives of their own choosing. Yet one wonders how abiding was Rousseau's concern for negative freedom given 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 significant room for such civil liberties; yet the existence of these liberties is neither the associates' reason for entering the pact nor what makes the pact binding on its members. While the social contract creates a domain of negative freedom, it is strictly limited by the needs of the community, against which the individual citizen has no appeal. Furthermore, he spent very little time discussing civil liberty compared to the other topics of the work. In fact, the most significant evidence for Cullen's position is found not in The Social Contract itself but in his Confessions. There, he described his own life as a long effort to find negative freedom. From his time as a ten-year-old boy studying with his cousin in Bossey, he described his 'dislike for compulsion' (C 25). By the time he was a young man living in France with Madame de Warens, this condition had developed into a 'mortal aversion to any sort of compulsion', which he carried with him for the rest of his life (C 115). His desire to avoid any restraint on his freedom was so great that he rejected offers of patronage from his friends as well as from the King of France because he felt that their generosity would make him excessively obliged to do the

60 Rousseau's Theory of Freedom bidding of others. Thus what he said about his own personality suggests that negative 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 of negative freedom found there are neither the only nor the most important forms of freedom that political society creates. The social pact does prevent other individuals from determining one's actions, but it does so only by letting the community as a whole determine them, within the limits discussed above. Nothing is gained by making Rousseau appear either less or more concerned with civil liberty than he actually was. At this point, however, a further distinction is crucial. The civil liberty that the social pact brings into being does not imply a perfect equality among the citizens. While it is true that the terms of the pact make it impossible for one person or group to be put at a disadvantage, they also make more rigid certain other kinds of inequality. This tension is one of the things that makes Rousseau's philosophy difficult to understand. On the one hand, the commitment to equality is the foundation of the contract. He says that, 'the fundamental pact, rather than destroying natural equality, on the contrary substitutes a moral and legitimate equality for whatever physical inequality nature may have placed between men, and that while they may be unequal in force or genius, they all become equal by convention and by right' (S 56). This is to say the associates are equal before the law, meaning that they are all party to the common good and that the dictates of the Sovereign give the same rights and responsibilities to each. However, because the law cannot discriminate or be partial, it must permit and protect other inequalities. It seems for example that if one associate has unusually vigorous strength or great wealth then, when the pact is enacted, that strength and wealth revert back to this individual, on the condition that the 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 get back what they put in. Any effort to penalize these persons for whom they are or what they have, even in the name of equality, would be an act of inequality or partiality that could not be an act of sovereignty. Regarding the meaning of equality he said that it, 'must not be understood to mean that degrees of power and wealth should be absolutely the same, but that, as for power, it should stop short of all violence and never be exercised except by virtue of rank and the law, 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 differences between rich and poor or lucky and unlucky dissolve. There is still employer and employed, magistrate and citizen. The civil liberty and equality that the 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 assign particular individuals to their classes (S 67). More importantly, the condition that the social pact brings about is in a sense the opposite of the natural liberty described above. Because the social pact stipulates that each gives everything to all, the condition that it produces is not one of independence, but one of absolute dependence; the associates bind themselves without reservation to the common benefit. Dependence in the state of nature is a matter of fact; in civil society it is a matter of right.

A further important aspect of Rousseau's theory of civil liberty is his account of freewill. For the nature of the liberty that people possess by virtue of being left alone by the government depends somewhat on what one thinks about the freedom of the will. In The Social Contract he said almost nothing about the issue except the deflating comment that 'the philosophical meaning 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 a full 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. Rousseau was a careful student of botany and the animal world, as part of which he often gave apparently deterministic explanations of living organisms including human beings. His frequent use of such assumptions and principles in crucial arguments seems to contradict his theory of the freedom of the will in the 'Second Discourse'. While I think there is a coherent theory among these works, it has the shortcoming of not actually solving the problem of freewill. The first although less profound side of his interest in determinism was his view that living bodies, both vegetable and animal, are machines. He stated his view clearly in the 'Second Discourse', where he wrote, T see in any animal nothing but an ingenious machine to which nature has given senses in order to wind itself up [remonter] and, to a point, protect itself against everything that tends to destroy or to disturb it' (D 140). Furthermore, throughout his Confessions, 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. For while there is some difficulty in arguing both that the body is a regular part of nature's causal chain and that human beings have freewill, the difficulty is not unique to Rousseau's thought and many philosophers have tried to provide answers to it. The problem in Rousseau is internal to his own psychological theory.

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The perplexing side to his theory of freewill is its relationship to his 'sensationalism', or the idea that human thoughts and emotions are formed by prior sensory experience. This school of psychology was extremely influential among 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 conscious 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 project 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 to piece 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. Rousseau said 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 years after he abandoned the work, the manuscript was stolen during his move from Montmorency to Metiers, a theft which he for some reason attributed tod'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 common phenomenon that at one time a person will resist a certain temptation and then at another succumb to it Looking within myself and seeking in others for the cause upon which these different states of being depended, I discovered that they had a great deal to do with our previous impressions from external objects, and that, being continually a little changed through the agency of our senses and our organs, we were unconsciously affected in our thoughts, our feelings, and even our actions by the impact of these slight changes upon us. Numerous striking examples that I had collected put the matter beyond all dispute; and thanks to their physical basis they seemed to me capable of providing an external 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 the work 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 the place of sense experience in human psychology. Furthermore, Christopher Kelly has argued that Rousseau's most complete expression of this psychological theory was not Emile but his Confessions itself. 10 This is another important source for piecing together what he might have said in his Morals of 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 the human mind is a product of its prior sensory experiences. Before pursuing the issue further, I should mention as an aside that there is some doubt about the value of his Confessions as a resource for answering the question. Although Kelly makes a compelling argument, there is a difficulty with the theory that Confessions is Rousseau's mature work on psychology, that it is Morals of Sensibility cast into dramatic and autobiographical form. The problem is based on Rousseau's own inconsistent descriptions of what the work was supposed to be. On some occasions, which support Kelly's interpretation, he described it as a case study in sensationalist psychology. 'There is a certain sequence of impressions and ideas which modify those that follow them, and it is necessary to know the original set before passing any judgments. I endeavor in all cases to explain the prime causes, in order to convey the interrelation of results' (C169). Furthermore, in many of the stories that make up the book, particularly those of his youth, his point was to show how the people and objects he encountered shaped his character. For example, he said of his time at the school of the Lambercier's with his cousin in 17234 that, 'The manner of my life at Bossey suited me so well that if only it had lasted longer it could not have failed to fix my character for ever. It was founded on the affectionate, tender, and peaceable emotions' (C 245). 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 to steal - an idea that had never before come into my head and one that I have never been able entirely to rid myself of since' (C 401). But the matter is not that simple. In other passages Rousseau said that the work had a different purpose than to show how his experiences had shaped his beliefs, desires, and interests. Its purpose was to render a true account of himself that posterity may use to correct the malicious judgment of his contemporaries. He said that, 'since my name is fated to live, I must endeavor to transmit with it the memory of that unfortunate man who bore it, as he actually was and not as his unjust enemies unremittingly endeavor to paint him' (C 373). This purpose is not necessarily at odds with that stated above, because in displaying himself as a psychological case study he might also correct his distorted image from pens of those who knew him. Nonetheless, the two goals are far enough apart that, aiming at one, he is likely to miss the other. In particular, an accurate description of his inner life is as likely to confirm as to refute the judgment of his acquaintances that he was paranoid and deluded. Regardless of whether one takes Confessions or Emile as the more complete account of his psychological theory, the problem of freewill in Rousseau's philosophy is clear. His psychological theory seems to contradict his theory of the will because if a person's internal life, including one's preferences, desires,

64 Rousseau's Theory of Freedom

ideas, and therefore one's actions, are determined in part by that person's inner nature and in part by climate, noise, motion, colour, and other sensory events, 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 beings are uniquely able to use their judgment to choose whether or not to follow those inclinations. This power is freewill. He said, 'Nature commands every animal, and the beast obeys. Man experiences the same impression, but he recognizes himself free to acquiesce or resist; and it is mainly in the consciousness 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' in Emile. 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 to my passions' (E 280). From this perspective, his sensationalism is irrelevant to the question of freewill; for even if one's desires, feelings, attractions, and aversions are the consequences of prior sensory experiences, and no matter how those experiences produce ideas and inflame or mollify passions, they do not 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 which they are not immediately inclined. One must admit, I think, that this account is inadequate as a theory of freewill because it fails to answer two famous and obvious questions. The first concerns whether or not reason alone can motivate an action. Rousseau seemed to say that a person is free when he acts on the basis of his reason alone without the interference of the passions. Yet there is good evidence that this 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 motivate an action unless they are accompanied by some relevant passion. To use a 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, which implies that Rousseau must have been wrong in positing that some acts can flow 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 freewill 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 one way rather than another? Presumably there is some cause for why people reason 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 he needed to answer this, yet his response does not seem to do what is required of it. He said, 'What, then, is the cause that determines his will? It is his judgment. And what is the cause that determines his judgment? It is his intelligent faculty, 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 spontaneous faculty, a thesis that is questionable in itself and at odds with the sensationalism 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 different people; but if all of a person's psychological life is the result of who that person is and what that person has experienced, then why is this not true also for 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 a person's reason, or power of judging, was somehow independent of the rest of that person's psychology, there must be some cause for why it is as it is and not some 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, thinks about the consequences, and finally decides. But it appears there must be something 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 he can avoid saying that this thing, whatever it is, is less causally determined than everything else in one's psychology. And if it is determined in this way, his argument about the will does little for explaining how freedom is possible. The problem is particularly sharp in light of his claim in The Social Contract that, '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 freedom that 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 one can get a sense of the overall structure of his theory certain areas remain to be filled in. He argued that the associates to the pact should be free to live as

66 Rousseau's Theory of Freedom

they wish within the bounds of the common good as he defined it, and that the government should protect them in this freedom from all forms of coercive interference, whether from a force outside the community or from the other members of the social pact. To this extent he could remain agnostic about the meaning and possibility of freewill because one can measure a citizen's civil liberties without reference to issues in psychology. On his view, people have civil liberty to the extent that the state and society give them options regarding what to believe, what to say, whom to associate with, where to live, and other basic freedoms. This leaves open the question of whether, given their nature and experiences, they could really believe something different than they believe, or say something different than they say; yet at the level of politics one need not answer the question. The issue becomes more complicated, however, with reference to Rousseau's theory of moral freedom. As I will discuss in Chapter 5, this is an additional 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 possibility offreewill.

The last point to touch on is the place of the Lawgiver in Rousseau's theory of civil freedom. In the last chapter I mentioned the Lawgiver only in passing; it is 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 on members who have the kind of character that could only be the result of already living in such a society. Thus some kind of external power is required to shape people into potential citizens; Rousseau called this person or power the Lawgiver. There is some question in his theory about the Lawgiver's place once the political society is formed, especially on the question of whether the Lawgiver participates in framing the laws that people vote on as part of the regular legislative process; but this is irrelevant to the present point, which is 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, changing human nature; of transforming each individual who by himself is a perfect and solitary whole into part of a larger whole from which that individual would as it were receive his life and his being; of weakening a man's constitution to strengthen it' (S 69). This person of the Lawgiver seems to present a problem to Rousseau's theory of civil liberty. Given his argument that the Lawgiver must form or re-form the character of each associate in order to make the social pact work, the power of each associate to create a life of his or her own seems to be limited. After all, what

Civil freedom 67 kind of civil liberty exists when people must in some sense be brainwashed into being good citizens before they can live in a society that creates these civil liberties? While Rousseau did not address the question directly, his philosophy seemed to offer an answer. While this is only speculation, the issue is important enough 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 they are 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 freewill. But because he believed that people are so profoundly shaped by their experiences, it follows that he would probably not think them less free because their environment was designed to shape them in one way rather than another. 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 predetermined list of beliefs, desires, memories, etc. Nonetheless, if all people are in some sense the product of their upbringing, they are not necessarily less free because of it. For example, I would not be writing this book if I did not have the family, friends, and teachers that I had; but I do not feel that my power to live a life of my choosing is diminished for that reason. Rather, one's upbringing is the context for having that freedom at all. Rousseau's theory thus hinted at the view that was developed only in the next century, according to which individual personhood is not something that exists outside of society but is instead something achieved within it. I can express my civil freedom by choosing to live one way rather than another only because I exist in a social world that includes public categories that I can choose between. If I wished to be a serf, or a knight, or a mandarin, for example, I would be out of luck because there is no social space for this kind of choice in the society in which I happen to live. For this reason I think he would say that the existence of the Lawgiver is not a serious limit to one's civil liberty because all people are formed by a 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 tempted 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 possible. 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 have no grounds for complaining when that good requires them to do something different than what they might like. In the case of the Lawgiver, however,

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the people in question are those who are being formed as future citizens, which means that they have not yet agreed to the terms of the pact. They have not subordinated themselves to the good of the community, which means that the force which directs them toward that goal is not an expression of their own will as it is in the case of people who are already citizens. This leaves some tension between the Lawgiver and his theory of civil freedom; yet I think all defences of individual liberty face this problem. The success of a political society that allows for civil liberty requires that its citizens have the qualities of character that allow such a society to flourish. This means, paradoxically, that the more one values individual liberty the more one must advocate a certain kind of socialization. To make a summary of this overall argument regarding civil liberty, Rousseau's theory stated that the individual freedom of each citizen may be limited only by the common good. The terms of the social pact imply first that the whole community must protect its members from injuries coming from outside, and that the law must prevent individual associates from infringing on each other's choices. Furthermore, it implies that the government can limit the freedom of the associates only for the genuine good of the community, not simply for the good of particular bureaucrats or even because a majority of the citizens dislike a certain way of life. Moreover, the institutional structure Rousseau described contains further checks on the Sovereign's power in the sense that the law must be perfectly general and voted on by the people themselves. Lastly, if it is true that wide civil liberties promote the permanent interests of humanity then the Sovereign must protect them for that reason alone. Taking these arguments together, one cannot agree with those like Berlin who argue that Rousseau was one of the enemies of human liberty. 17 While it is correct that he had no theory of natural rights that one could claim against the state, his political philosophy offered a clear defence of civil rights against all infringements except the needs of the community that creates and protects those rights in the first place. In fact, even his most radical claims, the ones that lead so many readers to think that he was some kind of totalitarian, appear quite different in light of the above qualifications. These worries are rooted in his fundamental thesis that the Sovereign has absolute discretion over the property and lives of its subjects, against which no associate retains the slightest recourse. Now, however, one can see that his point was fairly simple and that it seems ominous more because of his choice of words and his readers' prejudice than because of his actual meaning. To take the two points in order, he does argue that the Sovereign has a claim to every bit of everyone's property, which is his point in saying 'the right of every individual over his own land is always subordinate to the right the community has over everyone' (S 56). Yet when this is read in light 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 seems to have meant that a democratic community has a right to tax its members for the benefit of the whole even if particular people do not feel like paying their share. The case of the citizen's lives is analogous. He did argue that the life of each citizen is a conditional gift from the state, which the Sovereign may recall whenever it decides to (S 64). But again, his definitions of the key terms involved and his discussion of the limits on sovereignty show that his meaning is not what it might seem. To say that the Sovereign has an absolute right over the lives of its citizens is just to say that a democratic community can, in a time of need, compel military service or some other kind of public labour for the preservation of the whole. Again, the concrete example is less shocking than the abstract principle; and whatever its shortcomings, Rousseau's theory of sovereignty raises a point that is significant for all philosophies of political authority. If the sovereign power, whatever it is, did not have this absolute discretion over the property and lives of its citizens, then how is it possible to justify 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 taxes and to serve the community with their bodies is not a radical thesis; for there are very few political theories that do not allow these powers to the government; this is true even of the most liberal philosophies. Rousseau attempted only to show how a government might come to have such rights over its members 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, 'Rousseau'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 Contract (London: Routledge, 2004), 112-115. 4. The classic statement is John Stuart Mill's On Liberty, in On Liberty and Other Writings, 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 summary of the limits of utilitarianism as a political theory. 6. Timothy O'Hagan, Rousseau, Arguments of the Philosophers (London: Routledge, 1999), 227-34.

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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 Illinois 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 language of Rousseau's legislator', American Journal of Political Science, vol. 31 no. 2 (May 1987), 32135. 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 members is democracy. As I mentioned in Chapter 2. 5, Rousseau defended a theory of sovereignty according to which the members of the social pact must make all of their laws in person; thus democracy is a necessary element of the 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 suffrage 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 liberty applies to individual persons while democracy is a characteristic of the people taken as a whole. Rousseau's theory of democracy raises many questions, the most pressing of which concerns why he said that all the people must vote on their own laws in the first place; indeed, many scholars question whether 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 of political society, a part which had an interesting relationship both to his defence of civil liberty and to the terms of the social pact itself. At the outset, two important distinctions are needed to frame the issue. The first 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 saying 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 are elected it is enslaved, it is nothing. The use it makes of its freedom during the brief moments it has it fully warrants its losing it' (S 114).

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The second point is that when Rousseau argued that sovereignty cannot be represented, he meant something very specific by the word sovereignty. As I discussed in Chapter 2. 5, his constitutional theory identified a number of different offices in a well-ordered society, the two most important being what he called the Sovereign and the Prince, which correspond roughly to the legislative and executive parts of the state. His argument against representation applied only to the first; the people cannot give up their sovereign power of making the law. Regarding the Prince, however, he said that the people not only 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 to return to the ancient democracies of Greece and Rome in which the people were permanently assembled not only to frame the law but also to declare war, negotiate treaties, try court cases, watch over the public accounts, and perform all the other functions of government. Scholars have proposed a number of explanations for this puzzling theory that the people must make their own laws. Many of them, however, are patently inadequate. John Chapman for example argues that, 'Law is the expression 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 the question unanswered because it fails to explain what is implied in this 'therefore'. He later elaborates the point by saying that if people did not legislate for themselves they would thereby 'place themselves in a position of personal dependence'. 3 But this also seems unsatisfactory. For although the issue of dependence in Rousseau is complicated, his point is weak in light of Rousseau's argument that citizens can and should elect representatives to fulfil the executive office. If the body of citizens can represent the executive power without becoming personally dependent on its representatives it is unclear why it could not do so for the legislative power as well. Shklar offers an alternative explanation. She argues that, 'The justifiable civil society is one in which the people's interests, and none other, determine the rules: not kings and not representative parliaments, but the people are sovereign'. But this contains an equivocation because to say that the people's interests should determine the rules is one thing, while to say that the people themselves should determine the rules is something else. It is correct that on Rousseau's system the people's interests must rule because this is implied by the terms of the social contract which subordinates each citizen to the common good. But why does this imply that they must make their own laws in person? Presumably they could delegate this authority to representatives, whom they could remove from office at their pleasure. Furthermore, Rousseau was pessimistic 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 representatives 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 group or this person to the legislative office and save themselves the considerable trouble of having to make their own laws. There is, however, a related and more sophisticated school of thought concerning why Rousseau argued for direct democracy. If it could be shown that the people as a whole have a greater likelihood of correctly discovering their own interests than does a group of representatives or a monarch, this might explain why he argued that they cannot represent their sovereign power. After all, because each associate is completely subordinate to the common good, 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 general w i 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 again appears to be his point in saying that, 'according to the fundamental pact only the general will obligates particulars, and there can never be any assurance that a particular will conforms to the general will until it has been submitted to the free suffrage of the people' (S 70). He seemed to mean that since people and groups can be expected to misjudge things in their favour, the common good is most likely to be revealed when as many perspectives as possible have a vote, with the result that individual biases nullify each other and the public interest remains. On this interpretation, the reason Rousseau called for direct democracy was that the people as a whole are better able than a group of representatives to discover the general will.

This interpretation of Rousseau's argument for direct democracy is quite promising. It is clearly rooted in the main tenets of his political theory and it can account for many of his important statements on the topic. The most sophisticated defence of this interpretation is the one offered by Bernard Grofman and Scott Feld. They use the so-called 'jury theorem' developed in the late eighteenth century by the Marquis de Condorcet to explain why Rousseau believed 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 nevertheless rules. In other words, everyone must vote on the law but not everyone must agree on the vote. If the majority favours a measure, then it passes into law, although he was somewhat ambiguous about how much of a majority is

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needed. With this in mind, one may turn to Condorcet's jury theorem, which is a mathematical proof in the field of statistics. Although the mathematics are quite difficult, its overall point is easy to grasp. Other things being equal, groups make better decisions than individuals and large groups make better decisions than small ones. To put it a little more technically, the theorem shows 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 the right answer increases toward 1 as the number of voters increases. It may take the reader a moment to grasp the point; but as soon as one does, many striking things can be seen to follow. The most important consequence of the theorem is that the procedure of majority-rule can produce decisions that are better than the average competence of the voters involved; in fact, it can even yield decisions that are better than those of the most competent voter taken by herself. This means that, within the limiting conditions of the theorem, 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 mathematics to back it up. 'For the many, of whom each individual is not a good man, when they meet together may be better than the few good, if regarded not individually but collectively... For each individual among the many has a share of excellence and practical wisdom'. The thesis is regularly demonstrated on television game-shows in which members of the audience vote on answers to trivia questions; the majority or plurality is almost always right even though individually 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 competence 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 that a majority vote will choose the right answer is 0-98. This shows that, under the 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 to Rousseau 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. Big groups make better decisions than small groups or individuals. Since one job

Democratic freedom 75
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 significant objections at two different levels. The first has to do with their thesis about the historical influence of the jury theorem on Rousseau. The most obvious problem is that Condorcet published the theorem more than two decades after Rousseau published The Social Contract. Furthermore, Rousseau was himself a weak mathematician, so it is impossible to think that he discovered 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 developed 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 they simply 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 if not 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 to majority-rule by a large assembly. Jeremy Waldron notes that the problem with making a voting pool as large as possible is that as the size of the group increases the average competence of the voters is likely to go down. Thus, what is gained on one side is lost on the other. This is particularly important given the nature of the theorem, which shows that if the average competence of the voters falls below ^, then as the size of the voting pool increases the probability that 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 any case. 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; considering whether bigger is always better he remarked, 'Whether this principle can 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 would equally 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

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the voting pool makes up for the decrease in the average competence; and to this there is no absolute answer. Grofman and Feld discuss this problem in technical detail, and ultimately conclude that, 'In Condorcetian terms - in some situations the most useful voting that can be done by a large assembly is to select a smaller and more competent subgroup to decide matters'. 13 This obviously does not help to explain why Rousseau said the people must vote for their laws in person. There is one further aspect to this question about the size of the assembly and the quality of the decisions it makes. Even when an increase in size does bring an increase in quality, each new member of the voting pool has a decreasing marginal utility. It is true that under the conditions stated a larger group will likely make a better decision than a smaller group of equal competence; but as the size of the group grows, each additional member adds less and less to the likelihood that the majority will be correct even if that member's competence is at or above the average. As I said above, Grofman and Feld show that an assembly as small as 399 citizens can achieve something close to certainty with an average competence of only 0-55. Thus almost nothing would be gained by increasing the size of the assembly to 3, 999 or 39, 999 even if one could guarantee that the increase in size would not dilute the average competence of the group. This second set of objections has important consequences. It shows that there is no reason to believe that a bigger group will always make better decisions than a smaller one, which means in turn that direct democracy is not necessarily better or as good as representative democracy at discovering the common good. It is important to be precise about what this means for Rousseau. It shows that if his reason for defending direct democracy was that he believed the whole body of citizens would always reach better decisions than a group of representatives, then he was wrong. Subsequent developments in mathematics, and common sense by itself, suggest that sometimes and perhaps often a group of representatives will be able to discover the public interest more consistently than a large body of citizens voting together. However, one must put this finding in its proper place. There is in fact not much evidence that this is why he argued for direct democracy to begin with. Or, to put it more precisely, there is almost no evidence at all regarding why he argued for direct democracy; if their interpretation seems plausible it is largely because of the lack of other alternatives. Yet I do not think that the interpretation is plausible after all. There is little direct evidence that this is what Rousseau meant, if he did mean it he was wrong, and the evidence that he was wrong would have been largely available to him as it was to Aristotle, independent of the jury theorem. In fact, the only direct evidence for this reading are the passages I cited above in which Rousseau described the particular

Democratic freedom 77 wills cancelling each other out leaving the general will. But these passages are ambiguous, because presumably the particular wills of a correctly chosen representative body could cancel each other in the same way. Although none of these readings explains why Rousseau argued for direct democracy, they reveal something important. Whatever his reason for defending direct democracy it was not a merely practical or prudential consideration. For example, it was not that for the most part large groups make better decisions than small ones; or that collective deliberation tends to make people more patriotic; or that many representatives are corrupt; or some other such consideration. For Rousseau did not say that direct democracy is simply a smart plan, rather he said that any law the people have not ratified in person is null; in other words, the problem with representation is not that it is unwise but that it is illegitimate. This implies that the argument for direct democracy, whatever it might be, is a necessary consequence of the terms of the social pact rather than a practical suggestion about how to frame good laws. This should be clear in any case because direct democracy is highly impractical even apart from the question of whether big groups tend to make good decisions. It puts a drastic limit on the size of the state, which caused Rousseau a number of difficulties in his argument (S 115). Before going on to discuss the details of Rousseau's presentation, I should mention that there is another possibility, which one should not be embarrassed to admit. It may be that Rousseau had no definitive argument for direct democracy; perhaps his claim that the people must make their laws in person had no basis in the principles of his general political philosophy. This would explain why he has so little to say in support of it. This possibility is worth considering because it is the conclusion reached by Richard Fralin in the most complete study of Rousseau's theory of democracy. Fralin claims that Rousseau's presentation was a kind of ruse because, 'his real objection to representation was not theoretical but practical; he was convinced rightly or wrongly, that popular assemblies are more effective than representative assemblies in preventing or retarding executive usurpation of popular sovereignty'. 16 For the reasons just mentioned, I do not find it plausible to say that the argument for direct democracy is ultimately a practical one because it is hard to imagine a less practical arrangement. Nonetheless, Fralin's deeper point may be correct. His thesis is that, 'The concepts of the social contract, popular sovereignty, and the general will, then, do not in themselves necessarily exclude representation'.17 This reading leaves open the question of why Rousseau said they did; but that would be more a psychological question than a philosophical one. I believe, however, that Rousseau's arguments against representation do follow from the terms of the social pact, which I will turn to now.

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3

Part of the problem for understanding Rousseau's theory of direct democracy is that his argument against representation was exceptionally terse. His most explicit statement was, 'Sovereignty cannot be represented for the same reason 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 is different; there is no middle ground' (S 114). The best way to understand the issue, I think, is first to see what Rousseau meant by saying that legislative sovereignty cannot be alienated and then to see why it cannot be represented either. The first stipulation of the social contract is that the citizens forfeit all of their freedom and power to the community under the direction of the common good; this implies that there must be some entity that will discover the common good and express it in the law. Since no one brings any unique prerogatives 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 everyone, which is to say that if the community is to make the general will concrete through the framing of law, the only body that can be conceived to have this power is the assembly of citizens itself. The first question, then, concerns why Rousseau 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 term sovereignty, again, he meant the right to declare the common good and thereby direct all the powers of the community (S 57). So, could a community give away or sell the right to determine the common good? Rousseau argued this is impossible because a group of rational beings, given the choice, could not give up to some other person the authority to decide how all of its powers and freedoms will be used. It is important to follow very carefully his reasoning here. Since the Sovereign can demand anything of the citizens, for them to give away this power without condition would be to say T give everything to you and you give nothing to me'. It would be a contract in which one of the parties gives up all and receives nothing in return. However, this cannot be conceived as an utterance of a rational agent, because no good can be imagined to issue from it, 'and no will can consent to anything contrary to the good of the being that wills' (S 57). Furthermore, to sell their sovereignty would be equally futile because since the Sovereign controls all the rights of the 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 difference between selling it and giving it away; and giving it away is madness. This line of thought parallels his argument against Grotius on the question of 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 to enslave himself to a rich one if the latter agreed to adopt and educate his

Democratic freedom 79 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 valuable 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, however horrible it might be, is not slavery in the meaningful sense, because both parties retain obligations to each other. It would become slavery only if the rich man neglected his obligations to the daughter, while still forcing the poor 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 to the master for no terms at all. This was Rousseau's point in saying that, 'a convention that stipulates absolute authority on one side, and unlimited obedience on the other, is vain and contradictory' (S 456). Thus, Rousseau's answer 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 can recall 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 principle cannot be consented to, then sovereignty cannot be alienated just by virtue of what it is. It cannot be alienated for the same reason that a square cannot 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 represented. While it is irrational to say 'I'll give everything to you and you give nothing to me', it is highly rational to say 'I'll give you something you want if you give me something I want'. After all, the social pact itself is such an arrangement. It seems that a people could represent its sovereignty through an arrangement constructed along these lines. They might say, for example, 'We will give you the authority to declare the common good but we reserve the right to remove you from office at our pleasure. In return you will get glory 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 against alienation does not apply; representation might be consensual in a way that alienation could not. This leaves it very unclear why Rousseau argued

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that the principles of his theory require that the people make their laws in person. Indeed, these considerations are the core of Fralin's argument that in fact direct democracy is not required by the terms of Rousseau's philosophy. 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. Granted that there are risks in doing s o . . . it is nevertheless important to distinguish these 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 for a 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 cannot represent their sovereignty because the representatives could use their authority to take the sovereign power for themselves. If the Sovereign possesses all the powers of the community it ought to possess the power of making itself permanently 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 to fear that legislative representatives will usurp their power than they have to fear that their representatives in the executive branch will do the same. Furthermore, one of the conditions given to the legislative representatives could be that they must not attempt to usurp the ultimate power of the community to decide who will represent them. Even in light of all these difficulties, however, I think it is possible to discern the basic direction of Rousseau's argument against representation. One can recall 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 sovereign 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 of the community, which they will call their legislative representatives. Under what conditions could they do so? The only condition under which it would be rational for the whole community to lend its collective sovereignty to someone else is that they could be certain that this representative body would reach the same decisions as the whole

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community would have reached meeting in assembly. What makes this condition necessary is not that the community's decisions are unquestionably correct; they are not. It is not even that the community's decisions are the best possible, which they might not be according to Gondorcet. It is necessary because 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 right over another that is not perfectly reciprocal, which violates the artificial equality that the contract was designed to create. Thus, the question is irrelevant of which assembly, the popular or representative, would more likely discover the common good. Even if, from the perspective of a divine intellect, the representatives' laws expressed the common good more nearly than those of the popular assembly, the point remains the same. 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. But the 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 to make them in assembly, and then to compare the results. The work of the representatives is therefore redundant, and their existence as a political body is 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 also that it must apply equally to all citizens. He said that, 'by the nature of the pact every act of sovereignty... either obligates or favors all citizens equally' (S 63). This does not imply that unanimity must exist for every stature, only that 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 magistrates could do so. What of more complicated cases, however, such as tax law? In this case, one could argue for at least three kinds of equality. The first says that the

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law is equal when everyone pays the same amount in taxes; the second says that 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, Rousseau's well-known hatred of economic inequality suggests that he would have favoured the third option, or at least the second, and the consequent levelling they 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 draws the attention of the rich toward vanity and away from citizenship; in a famous passage 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 poverty 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 citizens feel 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 two extremes as close together as possible; tolerate neither very rich people nor beggars. 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 of graduated 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 reading, Rousseau's comments about wealth were ambivalent. While he argued for all of the disadvantages of inequality that I mentioned, he also claimed that a certain kind of aristocracy is the best form of government. His argument here is complex, and is based on his idea that a government is stronger the fewer 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 so that in general the administration of the public business be entrusted to those

Democratic freedom 83 who can best devote all of their time to it' (S 94). His meaning in this last sentence must be clear. He did not say that if there are to be rich people, they might as well have the administration of the state because then at least they 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 who have the leisure to attend to it. Thus if aristocracy is the best form of administration, and it implies inequalities in wealth, then one cannot say unequivocally that such inequalities are an evil. However, none of this goes to the root of the problem. The above questions concern 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 the belief that economic inequality is bad for a community, one cannot simply infer that any law which diminishes this inequality is legitimate because as I have discussed Rousseau's theory put limits on the Sovereign's power. One can see, for example, that a measure passed by the assembly stipulating that a certain wealthy citizen be robbed of his property would violate the principle that the law must apply equally to all, even if such a measure would reduce economic inequality. This simple point demonstrates that even if Rousseau was correct that inequality of wealth is bad for a community, his theory of sovereignty did not allow that a community can do anything the majority wants in order to establish parity. This last observation puts the question in the proper light. Would something like a progressive income tax be partial? Even assuming that it is prudentially advisable, does it violate the generality that a law must possess? The answer now seems to be yes. One might argue that a graduated tax is an act of partiality by the poor against the rich because in it the majority passes a measure 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 bind any definite person or group, as it would if the legislature tried to take the money of a specific citizen. It affects only those who happen to be in the class of 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 class will change. Therefore, one could argue that as the law is not partial against anyone in particular it is not partial at all. The argument's plausibility hinges on the idea of what one might call a flexible class, by which I mean a set defined by an attribute that is contingent and changeable. If the class of citizens that is discriminated against were defined by an attribute that cannot change, then the measure that prescribes the discrimination would be necessarily partial. For example, a statute that places extra burdens on a minority defined by place of birth could not be a declaration of the general will. But, if the class discriminated against is instead 'the

84 Rousseau's Theory of Freedom

wealthiest 20 percent of the community', then the statute might be a declaration of the general will because the legislation names no particular person or group. The idea of solving the problem of partiality by substituting flexible classes for individuals or fixed classes has its own difficulty, however. Imagine the case in which the majority in a community of 600 people wishes to rob the three wealthiest people of their possessions and to distribute their goods among the remainder of the citizens. If the majority simply passes a statute 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 back into the state of nature, giving them the prerogative, if not the means, to preserve 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 discriminate 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 majority can do whatever it wants, without sanction, by formulating its whims in the language of flexible classes. If the three richest people are smart then they will immediately give away enough money to make themselves one penny poorer than the sixth richest person, with the result that the people who were the fourth, fifth, and sixth richest will find themselves the victims of the majority's depredation. Yet, the leaders of the majority could then formulate a new piece of legislation, still in the language of flexible classes, allowing them to do their wishes with respect to the first three, or anyone else. One might wish to solve this problem with the convenient device of saying that it is a question of administration, not of sovereignty. The government can decide who should pay 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', leaving it 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 that once 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 to be part of such a system, each will not necessarily agree with every law that is passed within that system. One of the odd things about Rousseau's theory is

Democratic freedom 85
that he insisted that the people must make all of their laws in person, and that this kind of direct democracy is a necessary consequence of the terms of the social 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 obey principles 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 his theory. 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 carries out 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 popular sovereignty is not repressive because it cannot punish individuals is an argument by equivocation, because while Rousseau said that the Sovereign cannot punish 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 responsible for 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 civil society to the state of nature is that the force compels people only to obey the social pact to which they have previously obligated themselves. Rousseau argued that when the government makes people obey the law, it makes them obey themselves, both because they have had a say in making the law and because the social pact to which they have assented binds them to it. The absolute alienation that is the essence of the social pact implies that under certain circumstances the community can demand anything of anyone, although this last point must be understood in light of Rousseau's many qualifications about what 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 that is at the centre of The Social Contract.

Rousseau's theory of direct democracy has received criticism from many different directions. The theory is certainly strange. The most obvious problem is

86 Rousseau's Theory of Freedom that it implies that no state can have a larger number of citizens than can practicably meet to discuss the law. He said that he planned to discuss this issue in the sequel to The Social Contract. Although he never completed the work, it seems that his plan would have involved confederations of very small states (S 111, 116). Whatever his solution, this concern makes it hard to know what he might have said about the modern nation-state with its millions or billions of citizens. It appears at least that if he were serious in saying that the terms of the 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 nationstate can claim allegiance from its citizens. At one point he seemed to say as much himself in commenting, 'Since the law is nothing but the declaration of the general will, it is clear that the people cannot be represented in its legislative p o w e r . . . This shows that, upon closer examination, very few Nations would be found to have laws' (S 115). This is somewhat discouraging. I will add, however, that if Rousseau happened to be correct about the nature and foundations of political obligation, and correct therefore about direct democracy, he cannot very well be held responsible if people have decided to organize themselves around other principles than justice and duty. A more substantial set of objections to Rousseau's theory of democratic freedom was raised by Benjamin Constant. 23 Constant made his criticisms in a famous speech of 1816 called 'The Liberty of the Ancients Compared with that of the Moderns'. His thesis was that although the citizens of modern republics are 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 different things. Today people think of freedom in terms of individual rights, whereas in ancient times they thought of it as collective self-rule. Regarding modern freedom, 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 abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone's right to associate with other individuals'. 24 Among the Greeks and Romans, on the other hand, liberty meant democracy; it 'consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with other governments; in voting laws, in pronouncing judgments'.25 In other words, moderns think of liberty in terms of individual rights whereas the ancients thought of it in terms of collective and direct self-government. Although different, they are both meaningful senses of what it means to be a free people, which correspond to the two kinds of freedom I have discussed so far, civil freedom and democracy. Constant went on to argue that these two kinds of freedom are in fact incompatible. While his reasoning is complicated, two of his arguments are especially relevant to Rousseau. The first reason that democracy is incompatible

Democratic freedom 87 with civil liberty is that the only way to leave citizens the leisure to attend continually to public affairs is to have a slave population to do the work, something that is obviously inconsistent with modern liberty to the degree that it is described in terms of universal rights. Constant defined ancient liberty not simply as a general concern with public affairs but as actual self-rule, which can be accomplished only when the whole body of citizens has the time to administer the state. Thus, 'the abolition of slavery has deprived the free population of all the leisure which resulted from the fact that slaves took care of most of the work. Without the slave population of Athens, 20, 000 Athenians could never have spent every day at the public square in discussion'. Rousseau, by the way, made the same argument saying, 'What! Freedom can only be maintained with the help of servitude? Perhaps. The two extremes meet. Everything that is not in nature has its inconveniences, and civil society more than all the rest' (S 115). Constant also suggested another reason that a democratic state cannot offer broad individual liberties, although his argument is less explicit in this case. He suggested that democracy requires a very specific kind of citizenry in order to function and thus cannot offer too much individual freedom. The people must be public spirited, informed, patriotic, skilled in analysis and debate, and willing to sacrifice themselves for the public good. He said, 'The ancients... had no notion of individual rights. Men were, so to speak, merely machines, whose gears and cog-wheels were regulated by the law. The same subjection characterized the golden centuries of the Roman republic; the individual was in some way lost in the nation, the citizen in the city'. Yet this requirement is obviously incompatible with broad individual liberty. People who must possess such a specific kind of character cannot by the nature of the case be free to believe, feel, and desire whatever they want; they cannot, in other words, have modern liberty. This same issue appeared in Rousseau in his discussion of the Lawgiver. There is of course a further difficulty in the relationship between civil liberty and democracy, which Constant does not say much about but which is important to understanding Rousseau. Democracies often put strict limits on the civil freedoms of the people they claim to rule independent of perceived public goods. Sometimes these are uniformly imposed, such as in Rousseau's Geneva 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 the same in both cases, however. Democratic governments often choose not to allow broad individual liberties; indeed, Talmon has argued that extreme popular sovereignty leads inevitably to totalitarianism. " Thus, it seems that people who wish to defend both individual liberty and democracy must put them in a rank ordering and decide which should be sacrificed to the other.

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This is a serious problem, which has caused some philosophers to ask whether liberal democracy is a self-contradictory theory of government. 30 And it is not even to ask the more fundamental question, posed by Carl Schmitt, of what liberal democrats should say about a state that democratically chooses no longer to be governed democratically. In sum, Constant argued that because democracy requires slavery and because it demands that the people be moulded into citizen-machines, it cannot coexist with broad individual freedom. What is very illuminating in this is the severe fault that Constant found with Rousseau, even when they seem to agree in all principles concerning individual rights and democracy. To put it simply, he accused Rousseau of trying to rekindle ancient liberty in the modern world with disastrous results. Constant believed that people of the modern world must be content with individual liberty and not try too much to reconstitute the democracy of ancient times. Changes in communication, trade, and warfare, along with the progress of the idea that all people are worthy of equal respect, have made it impossible to return to small, independent republics that rely on slavery. He said, 'we can no longer enjoy the liberty of the ancients, which consisted in active and constant participation in the collective power. Our freedom must consist of peaceful enjoyment and private independence'. 32 Furthermore, he argued that the attempt to reinstitute direct democracy could come only at the terrible price of undoing the modern nation-state, commerce, and individual liberty. He claimed against Rousseau that the latter's theory according to which the people must vote personally for their own laws was an attempt to resurrect ancient liberty in the modern world. He said, 'I shall show that, by transposing into our modern age an extent of social power, of collective sovereignty, which belonged to other centuries, this sublime genius, animated by the purest love of liberty, has nevertheless furnished deadly pretexts for more than one kind of tyranny'. Having participated in many tumultuous years of French political life at the turn of the nineteenth century, Constant was in a better position than most to gauge the influence of Rousseau's theories. Yet, in terms of what Rousseau himself intended, I am not sure that he is correct. For Rousseau's defence of democracy against the claims of individual liberty was extremely nuanced and qualified. To begin with, Rousseau was himself concerned with preserving a domain of civil liberty within which people could pursue their own interests and pleasure, as I tried to demonstrate in the last chapter. Yet Constant was right in sensing that he and Rousseau balanced things in different ways; and I think this difference puts the meaning of Rousseau's theory of democratic freedom in 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 thinkers believed, then any political philosophy ought to provide an account of which

Democratic freedom 89 should be sacrificed to the other and when. The easiest way to understand the difference between Constant and Rousseau is that the former was more willing than 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 sacrifice individual rights to democracy. In fact, just as his theory of civil liberty attempted to reconcile a robust defence of individual rights with a plausible theory of sovereignty, so his account of democracy tried to reconcile that same theory of rights with the need for collective self-government. While readers must decide for themselves whether one should err on the side of 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 highly qualified. 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 representatives, which means that his theory does not call for the people to be perpetually assembled to attend to public affairs. Furthermore he defended a view of civil liberty that was much more robust than anything found in ancient political philosophy. This shows that Constant was wrong in suggesting that Rousseau wished to return the modern world to the Greek city-states. Furthermore, 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 a matter of taste. It is hard to know what to make of this kind of objection, however, 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 what sense it makes to blame him for his conclusion. He may have been wrong, of course; but even if he was, it was not exactly a moral failing given that he seems to have tried his best and done better than most to discover the foundation of obligation and political liberty. The last point I will mention is that Constant and Rousseau agreed on one further issue, which has consequences for how one evaluates his theory of democracy and individual rights. Both thinkers argued that the greatest threat 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 participation, 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 of their private rights renders them less willing and able to attend to public affairs. Even Constant worried about this; he said, 'The danger of modern

90 Rousseau's Theory of Freedom

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 sufficient 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 freedom lacks the civic resources to sustain self-government'.

Notes 1. 2. 3. 4. 5. 6. For a good account of these events see, James Miller, Rousseau: Dreamer of Democracy (New Haven: Yale University Press, 1984), 78f. John W. Chapman, Rousseau - Totalitarian or Liberal?, Columbia Studies in the Social Sciences (New York: Columbia University Press, 1956), 51. Chapman, 54. Shklar, 177. Bernard Grofman and Scott L. Feld, 'Rousseau's general will: a Condorcetian perspective', The American Political Science Review, vol. 82 no. 2 (June 1988), 567-76. 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 of Massachusetts Press, 1976), 67-8. Aristotle, Politics, 66 (1281 a42~b5). Grofman and Feld, 570. Grofman and Feld, 570. David M. Estlund, Jeremy Waldron, Bernard Grofman, Scott L. Feld, 'Democratic theory and the public interest: Condorcet and Rousseau revisited', The American Political Science Review, vol. 83 no. 4 (December 1989), 13356 (footnote 1). Estlund, Waldron, Grofman, Feld, 1322. Aristotle, Politics, 66 (1281bl5-20). Estlund, Waldron, Grofman, Feld, 1335. For a more extensive criticism of the epistemic justification of democracy see, Samuel Freeman, 'Deliberative democracy: a sympathetic comment', Philosophy and Public A/airs, vol. 29 no. 4 (Fall 2000), 371-418. For an interesting discussion of how a correct voting procedure might allow a representative assembly to duplicate the will of the whole body of citizens, see Chapman, 120f. Richard Fralin, Rousseau and Representation: A Study of the Development of His Concept of Political Institutions (New York: Columbia University Press, 1978), 11.

7. 8. 9. 10.

11. 12. 13. 14.

15.

16.

Democratic freedom 91
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. Fralin, 84. For a good discussion of this issue see, Robert Wokler, 'Rousseau's Pufendorf: natural 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. 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. Robert Wokler, 'Rousseau and his critics on the fanciful liberties we have lost', Rousseau and Liberty, 198. See my forthcoming article, 'A paradox of sovereignty in the Social Contract'. Wokler, 'Rousseau and his critics', 193. 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. Benjamin Constant, 'The liberty of the ancients compared with that of the moderns', Constant: Political Writings, ed. Biancamaria Fontana, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1988), 310-11. Constant, 311. Constant, 314. Constant, 312. For an interesting response to the supposed opposition between democracy and civil freedom see, Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998), 59-99. J. L. Talmon, The Origins of Totalitarian Democracy (New York: Norton, 1970), 38-49. 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 democracy" ', 782-791; and Bonnie Honig, 'Dead rights, live futures: a reply to Habermas's "Constitutional democracy" ', 792-803. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy, Studies in Contemporary German Social Thought (Cambridge, Mass.: MIT Press,

17. 18.

19.

20. 21. 22. 23.

24.

25. 26. 27. 28.

29. 30.

31.

1988).
32. 33. 34. 35. Constant, 316. Constant, 318. Constant, 326. Michael Sandel, Democracy's Discontent: America In Search of a Public Philosophy (Cambridge, Mass: Harvard University Press, 1996), 6.

Chapter 5 Moral freedom

1
The final kind of freedom that Rousseau discussed in The Social Contract is moral 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 political philosophy. He defined moral freedom as autonomy, or 'obedience to the law 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 individual citizens to act according to their own choosing without coercion or hindrance. The difference is that civil freedom refers to the absence of external impediments to alternative actions whereas moral freedom concerns, at least in 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 of nature, the social pact, civil freedom, and democracy, I can elaborate somewhat on these examples. In the first example I mentioned an alcoholic who genuinely believes that his life would be better if he stopped drinking, yet finds himself unable to choose sobriety. Imagine further that he lives in a community that neither forbids nor compels its citizens to drink alcohol. This person possesses civil freedom in the sense that the laws are silent, which means that he has a legally protected space to do what he wishes without interference from others. Yet he does not possess moral freedom, in Rousseau's use of 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 civil freedom, 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 what the 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 can limit his choices just as much as external impediments can. This is the reason that Rousseau could not agree with those philosophers such as Hobbes who wished 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; but something about human freedom is left out when it is defined so narrowly. Indeed, the 'absence of external impediments' fails as a definition even of civil freedom taken by itself, as becomes clear when one realizes what is implied by Hobbes's theory. If freedom is simply the absence of external impediments then one must say that, when the secret police arrive in the middle of the night to kidnap a citizen, he is 'free to be kidnapped' because there are no external impediments to his abduction. This way of defining the term seems to drain too much out of the idea of freedom. This point was made by Berlin in the revised version of his famous essay on two concepts of liberty. Berlin had originally defined freedom as 'the absence of obstacles to the fulfillment of a man's desires'; yet he soon realized that even on this definition, which is richer than that of Hobbes, a community could be made freer by limiting the number of things that its citizens wanted to do. 'For if 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's wishes'. For this reason he redefined this kind of freedom by saying, 'The extent of my social or political freedom consists in the absence of obstacles not merely to my actual, but to my potential choices - to acting in this or that way if I choose to do so'. This is precisely what Rousseau meant by the term civil freedom, which consists in legally protected options for living one kind of life or another according to one's wishes. Yet, Rousseau did not leave it at that because a person could be free in the civil sense, and also in the democratic sense, and yet not be free in the moral sense. In the Introduction I offered a second example to illustrate the nature of moral freedom, which although it is useful, now requires significant qualification. Imagine a person, I said, who deliberately breaks the law and goes to prison for the sake of raising awareness of an injustice. For the purposes of the argument let us also imagine that the political regime under which this person lives is something other than a democracy. This person obviously possesses little in the way of civil freedom because she is confined to a jail cell, which means 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 which she does possess moral freedom, because it consists in obedience to one's own judgment. Having decided that the best thing for her to do is to be arrested and confined to a cell, she does it; and in this sense she is obedient to a law that she has legislated to herself. In this way moral freedom appears to be independent of the other kinds of freedom that Rousseau discussed, given that it seems a person can be morally free regardless of her civil liberties and of the political arrangements under which she happens to live. Indeed, one hears echoes in Rousseau's theory of the Stoics, who argued that a person can be free at any time because freedom concerns internal dispositions more than it does

94 Rousseau's Theory of Freedom

outward circumstances. But what then is one to make of the relationship between moral freedom, civil freedom, and democracy in Rousseau's philosophy? After all, the point of Berlin's criticism of Rousseau is that an excessive interest in moral freedom can lead to an erosion of civil liberties because if one can be free even in a jail cell then there is no need to worry about 'obstacles to potential choices'. Moreover, Berlin argued that since moral freedom, unlike civil freedom, consists not merely in having options but in a substantive way of living, an interest in moral freedom can easily lead to a defence of oppressive governments 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 between these two kinds of individual freedom on the one hand and the collective freedom of a democratic community on the other. To understand Rousseau's theory of moral freedom correctly a number of distinctions and qualifications are required. To begin with, Berlin is right in at least one thing. There is no question Rousseau believed that moral freedom is a meaningful and important sense of what it means to be free; nor is there any doubt he believed that moral freedom can be at odds with civil liberty. Yet there are many aspects to his theory that Berlin and most other critics ignore and that, taken together, give his theory of moral freedom a different character 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 could achieve moral freedom only within political society and, in particular, only within the social pact that he described; a person cannot be autonomous on his own or independent of his circumstances. This is the important difference between his philosophy and the familiar ethic of the Stoics. It also makes irrelevant most of the common objections to his theory of moral freedom, which are based on a misunderstanding of its nature and conditions; and it gives a different shape to his overall theory of freedom. To see why moral freedom is possible only in political society, one need only recall that, while moral freedom is obedience to a law that one legislates for oneself, in the state of nature there is only one such law that a person can legislate, namely the social pact itself. This was his point in saying that 'the clauses of this contract are so completely determined by the nature of the act that the slightest modification would render them null and void' (S 50). I discussed in Chapter 2. 2 that in the state of nature any limit that one puts on one's future choices is irrational because it deprives one of things that might be necessary later for one's self-preservation. This is what he meant by asking, 'since each man's force and freedom are his primary instruments of selfpreservation, how can he commit them without harming himself, and without neglecting the care he owes himself?' (S 49). A law that one prescribed to oneself would limit one's future choices in the same way. This is the reason that the 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 considerations do, however, show the limits of the example I used above in which a person breaks the law and accepts punishment. Given that the social pact itself is the only law that one can legislate for oneself, breaking the law, and thereby 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 Rousseau recommended, 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 could be attained anywhere by anyone, independent of the state. He says, 'Unlike [democratic freedom], which could only be enjoyed under a well-ordered republic, moral freedom was something that could be attained anywhere'.5 Others, such as Joseph Reisert, argue that moral freedom can only be achieved in the state; but they think it can be any state, it need not be one that is built on the particular social contract that Rousseau described. 6 The problem with both interpretations is that they fail to appreciate Rousseau'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 that a 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 of nature. Yet, it also shows that such freedom cannot be achieved in any given society. As I discussed in Chapter 1, Rousseau's narrow definition of what must happen to create a political society implies that most people are in the state of nature, where moral freedom is impossible, even if they think that they are in a political society. This indicates that, on his view, autonomy is coextensive with the well-ordered society that he proposed.

2
A further important part of Rousseau's theory concerns the question of what he 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, I think that the word indicates something close to its typical use today, when it is used to refer to principles of right conduct. Moral freedom has a closer connection to normative ethics than do the other kinds of freedom, a connection that is one of the most interesting and contentious parts of Rousseau's philosophy. The simplest way to approach the issue, I think, is to notice that since people in the state of nature cannot legislate for themselves, there is only one thing that might serve as the principle or guide of their actions. It is their passions or desires. Because his theory of the state of nature is so rich, one should

96 Rousseau's Theory of Freedom not simplify too much about who exactly its inhabitants are. Yet it is clear that because one cannot legislate for oneself in the state of nature, the only question that people can ask themselves about their behaviour is, what do I feel like doing? These passions may be stronger or weaker, more or less destructive from 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 themselves not, 'What do I want to do?' but, 'What am I supposed to do based on the terms of the social pact, which I have legislated for myself?' The possibility of asking 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. His full statement on the issue is as follows: This transition from the state of nature to the civil state produces a most remarkable change in man by substitutingjustice for instinct in his conduct, and endowing his actions with the morality they previously lacked. Only then, when the voice of duty succeeds physical compulsion and right succeeds appetite, does man, who until then had looked only to himself, see himself forced to act on other principles, and to consult his reason before listening to his inclinations [penchants] (S 53). The background of his thesis is a familiar argument in the history of philosophy. It says that a person's passions or appetites derive ultimately from the condition of that person's body; and, further, the body is a part of the physical world that is governed by the same natural necessity that governs all physical processes. Thus, when one acts only according to one's passions, one is a kind of undifferentiated part of the material world, governed by the same natural laws that apply to all other physical systems. In Rousseau's words, T see in every animal nothing but an ingenious machine to which nature has given sense in order to wind itself up and, to a point, protect itself against everything that tends to destroy or to disturb it' (D 140). He assumed, further, that actions that happen according to mere natural necessity have no moral significance. For example, if a child falls and gets hurt no one blames the force of gravity, although they might blame the parents if they believe the parents were free to prevent it. The implication is that the state of nature is inherently amoral because everything that happens is the product of natural necessity alone, and further that freedom is a presupposition of morality. When people enter the social pact, however, the nature of their actions changes. The social pact itself is an instance of self-legislation, which provides a new basis for action; it gives people a rule to follow apart from their particular inclinations. Furthermore, once it is enacted the community will begin to frame laws, which further stipulate the citizens' obligations to one another and which 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 possibility raises each citizen out of the mere play of natural forces and endows their actions with a kind of moral significance that they would otherwise lack, 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 Rousseau described in Part I of the 'Second Discourse'. Many readers take this depiction 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 be Rousseau'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 inclinations. Although it happens that their inclinations are relatively peaceful, this does 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 state of 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 the master 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. Thus there is reason to say that moral freedom is the most important kind of freedom that political society offers because it changes the kind of being that humanity is, making it morally significant and so apart from and above the rest of nature. This line of argument clarifies many of his comments about slavery, which otherwise may appear quite puzzling. In a well-known sentence near the beginning of The Social Contract he stated that in most societies, 'One believes himself 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, Shklar says, '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, which was much simpler than she suggests.

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The reason the master is a slave is that he is bound to the dictates of the overbearing 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 to have only more complicated and onerous means of binding oneself to natural necessity. This is the sense in which masters are slaves. One consequence is that everyone 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 one cannot 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 condition offeree. 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 to Rousseau's theory based on what he knows, or thinks he knows, about the natural sciences. He says, 'To go back to the state of nature meant for him primari l y . . . 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 spirit of 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 nor Newton was a nominalist in the usual sense of denying the reality of universals, Rousseau's way of thinking about natural science was more complicated than Rapaczynski suggests and was probably influenced more by his early study of chemistry and lifelong interest in botany than by the vague mechanism that Rapaczynski identifies. It is a simplification in any case. Rousseau's only commitment in The Social Contract, and the only one needed for the coherence of his theory, was that the world outside of political society is governed by the principles of natural necessity, whatever they may be. To say simply that Rousseau'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 exists between Rousseau's theory of moral freedom and his remarks on freewill. Indeed, one may justifiably wonder whether the two terms are simply two

Moral freedom 99 ways of referring to the same thing. If this is the case, then his theory appears to be contradictory because while he said that everyone has freewill (at least potentially) he also said that only the citizens of a properly constituted political society are morally free. While I believe that his theory is coherent, the details are quite subtle. As I mentioned in Chapter 3. 5, he defined freewill in the following way: 'Nature commands every animal, and the beast obeys. Man experiences the same impression, but he recognizes himself free to acquiesce or resist; and it is mainly in the consciousness of this freedom that the spirituality of his soul exhibits itself (D 141). It is possible to see now that there 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 which of one's inclinations to follow, while other times he seemed to say that it is the power of ignoring one's inclinations altogether and of acting on purely rational principles. In the passages I quoted from Emile he seemed to indicate the latter; yet in his 'Second Discourse' he tended toward the former. The example that Rousseau used in the 'Second Discourse' was food. With observations presumably drawn from his hobby of keeping pets, he noticed that some animals starve to death rather than eat food for which they have no natural instinct; a pigeon for example will waste away rather than eat meat and a cat will starve rather than eat grain. Human beings on the other hand can sustain themselves on food for which they have no instinctual attraction 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 this power. This case, however, is certainly not a matter of ignoring one's passion in order to heed the independent call of reason. A person has a desire to eat just as does a pigeon or a cat; the difference is that a person can reason about what to eat 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 this sense refers to the capacity to use and act upon prudential reason. This sense of freewill is much less ambitious than the one he appeared to defend in Emile, because it relies neither on the assumption that reason alone can motivate an action nor on the assumption that reason is a spontaneous faculty that is independent of the system of causation that pervades the rest of the universe. Regarding The Social Contract, the sense of freewill that he employed there was 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 the first 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 motivate 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's desire 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).

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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, the principles of association through which such persons may unite their powers for the purpose of mutual protection. This is the social pact, and it is the law that one can legislate for oneself. These considerations in turn explain the apparent confusion between freewill and moral freedom. Freewill, as the power to decide which inclinations to follow based on prudential reason, is a power that is potentially open to anyone and which has no particular relationship to political society. Autonomy, however, is possible only in political society because the social contract is the only law that one can rationally legislate for oneself.

There are, however, a number of grounds for objecting to Rousseau's theory of autonomy as a genuine theory of freedom. In his favour, I think most people would agree that it is too simplistic to think of an individual's freedom only in the 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 dispositions or character can limit that person's freedom. This reasoning implies that a concept of autonomy, or something like it, is required for a full theory of human freedom. Yet, the odd thing about his theory is that while he insisted on the importance of moral freedom, it turns out that there is only one way to be 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 discussed, the social pact and its consequent laws are, on his view, rationally necessary stipulations for entering into and preserving political society, and they are based on the features of the state of nature. This truth is presumably something that the associates to the pact might see for themselves, otherwise they would have no motivation for entering it. Thus, the necessity of the social pact is based not in coercion but in the realization that the world is as it is and that there are steps that one can take to make life more secure. That there is only one possible social pact does not compromise Rousseau's claim that its adoption is an act of autonomy, because the associates could see that it is the rational course of action based on their own desire to leave the state of nature. There is another difficulty with his theory, however, which concerns the relationship between moral freedom and democratic freedom. If, as I discussed in the last chapter, the social pact commands each person to obey the general 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 pact is established, each citizen is bound to obey the pronouncements of the Sovereign, even when that citizen personally and explicitly disagrees with the measure in question. In this case, the citizen appears not to be self-legislating but rather 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 a person is morally free at the moment of assenting to the social pact, this freedom seems immediately to dissolve in his subordination to the will of the majority.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 elevation in human nature that is supposed to be its distinctive feature. Yet, how can 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 the community 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 community's laws. One consequence is that the question of whether or not a particular person agrees or disagrees with a particular decision of the assembly is irrelevant. The nature of the pact is that the people obligate themselves to the 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 in which, '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 follows from the nature of the social pact. Each citizen knows in advance that his or her will is not necessarily the general will, and that the will of the majority is likely to be closer to it. This is, in any case, the political system to which the individual 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 individual'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 for human 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 specific kind of character; so, how is the cultivation of that kind of character compatible with broad civil freedom? A similar issue arises with respect to moral

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freedom. If moral freedom means acting according to one's own reason, how is this compatible with a political system that requires citizens to think and act in the narrowly defined way that Rousseau said is required for a successful democracy? As Chapman argues, 'Intensification of social sentiment in the form of patriotism is fatal to his ideals of autonomy and responsibility. The attitudes required for stability of his political system can be acquired by man only 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 discussed above with reference to the question of individual liberty. Given that there is only one law that a person can legislate for himself, which is the social pact, it is impossible for that person's life as a citizen to diminish his autonomy, because being a citizen is the only way to be autonomous in the first place. Consequently, anything that helps human beings to act according to that selflegislation, such as a carefully cultivated sense of public spirit, can only help them 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 to supply its condition. Moreover, Chapman is wrong to say that Rousseau was 'capable of sacrificing freedom and dignity to satisfaction in community life and values'. This sacrifice is logically impossible because the latter is the condition of the former. Rousseau's argument was that without satisfaction in community life and values, there can be no stable political society; and without political society, there can be no moral freedom and thus no moral worth either. Chapman admits that 'transformation of self-love into social spirit through its fusion with 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 obey the general will then, according to Rousseau, it is the condition of the release of all moral potentialities, because autonomy is the foundation of moral life as such. Given that freedom, and so morality, is found only in the properly constituted community, anything that pulls one away from duty, anything that encourages 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 general will shall be constrained to do so by the entire body: which means nothing other than he shall be forced to be free' (S 53). While readers never tire of interpreting this comment in sinister ways, his point was a simple one, which should be clear by now. Given that there is only one thing that a citizen can legislate for himself, namely the social pact, there is only one way to achieve autonomy, which is to be a good citizen. Any citizen who breaks the community's law also breaks the social pact and thus, by the nature of the case, violates the law that he has legislated for himself. To punish him for it is simply to fulfil 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, has nothing to do with feeling free. Once the social pact is enacted, self-legislation applies more to the form of action than to the feelings of the agent. The criterion 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 up some 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 and possibly 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, no matter 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 the common 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 apprehension, has determined his actions. In the latter case, he simply gives up his citizenship and returns to the state of nature because his relationship to his fellows has changed from one of duty to one of power, in which the so-called citizen accepts or shirks the rights and responsibilities of citizenship depending on what is to his personal advantage.

5
A final aspect of Rousseau's theory of moral freedom concerns its relationship to the practical philosophy of Immanuel Kant. To many readers, the most striking 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 his theory. Although Cassirer's interpretation is quite old, and although I believe it is incorrect, his way of reading Rousseau makes a number of issues extremely

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clear. The crucial point is the relationship between reason and the passions in Rousseau's theory of moral freedom. On Cassirer's reading, Rousseau meant to propose a moral theory that is essentially the same as Kant's, or at least Kant as Cassirer interprets him. He argues that Rousseau marked a new era in the history of moral philosophy because, 'Rousseau in opposition to the predominant opinion of the century eliminated feeling from the foundation of ethics'. Gassirer eventually takes this interpretation to its logical conclusion by arguing that the dictates of the social pact are, like Kant's categorical imperative, the spontaneous product of human subjectivity. This goodness [of man] is grounded not in some instinctive inclination of sympathy but in man's capacity for self-determination. Its real proof lies, accordingly, not in the impulses of natural good will but in the recognition of 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 sensual instincts but lifts itself, spontaneously and without outside help, to the idea of freedom. 16 A number of contemporary scholars offer roughly the same interpretation of the place of moral freedom in Rousseau's philosophy, arguing that the creation of such freedom is, for him, the ultimate purpose and justification of the state. Frederick Neuhouser, for example, says, 'Thus, the most basic thought of Rousseau's political philosophy can be formulated as follows: The justification of the rational state resides in the fact that such a state plays an indispensable role in constituting human beings as bearers of free wills and is therefore essential 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 important of these is that the social pact can no longer be seen as something intended primarily to facilitate human happiness. If feeling is eliminated from the foundation of ethics, while reason, which is freedom, is put in its place, then the happiness of the associates, which is a mere feeling, is of no consequence morally or politically. 'Rousseau did not demand from the human community that it should increase man's happiness, well-being, and pleasure nor did he expect these benefits to result from the establishment and consolidation of a future community but that it should secure his freedom and thus restore him to his true destiny'. I believe that this Idealist interpretation of Rousseau's theory of moral freedom is implausible; yet it clarifies a number of issues in his philosophy. To see why, 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 categorical imperative, 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 to obey this law? If it is a feeling, such as the feeling that reason is noble, or that the law is good for one, or that public utility is an admirable thing, or any other feeling, then one has obviously failed to reach the domain of freedom as Cassirer conceives it, because one's actions continue to be grounded in sentiment. Given a choice between an action that satisfies duty and one that contradicts it, 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 a sentiment, then even actions that conform to duty are 'absorbed in sensual instinct' in a way that causes them to lose what was taken to be their distinctly moral character. As I noted before, this objection goes back at least to the early writings of David Hume, who argued that there is no reason to prefer the scratching of one's finger to the destruction of the world because reason is silent as to what should be pursued and avoided. This is the basis of his doctrine that reason is and must be a slave to the passions because the moral powers of reason stop at its ability to discover the means to those things that one feels one should place as the end or goal of one's actions. " One should notice that if Cassirer is correct in saying that Rousseau's theory of moral freedom is essentially Kantian, then the above objection to Kant has special force because Rousseau did nothing to explain how reason can replace passion as the foundation of human agency. Kant, at least, offered the doctrine of'pure respect for the practical law' which, for all its difficulties, shows that he understood that there is something to be explained. 20 Rousseau offered nothing of the kind. One is forced on this reading to agree with those commentators who, like Andrew Levine, believe that Rousseau needed Kant to think his thoughts for him. 'The Social Contract itself evidence [s] a certain (unconscious) refusal by Rousseau to pursue his thoughts to the limit, to the moral world order investigated in Kantian moral philosophy. In this sense they represent a degeneration of the 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 they may seem minor at first, they indicate the deeper problem. Gassirer is mistaken when he says that, on Rousseau's view, humanity spontaneously lifts itself 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 only reason Kant was able to argue that pure practical reason spontaneously produces the categorical imperative is that the latter is empty; it is the pure form of lawfulness.22 In Rousseau's case the analogue to categorical imperative is the social pact itself, with its stipulation that each alienates all under the direction of the common benefit. This is the law that each person erects over himself or herself; yet it is far from empty. It is a prudential conclusion that one may

106 Rousseau's Theory of Freedom

discover by investigating the state of nature. In other words, the law is what it is because nature is what it is, which means that the moral law is not spontaneous but rather mediated and empirical. Cassirer is also mistaken in his conclusion that human happiness is irrelevant for civil society. Rousseau said repeatedly and explicitly that the social pact is born from the human desire 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 'has the preservation of the contracting parties as its end' (S 64). This predilection implies not a hope for freedom, morality, duty, and nobility, but rather a hope to continue one's physical existence in as commodious a fashion as possible. Cassirer's interpretation of moral freedom leads him necessarily to the conclusion that the moral law is a spontaneous product of human subjectivity, and that happiness is unimportant to the purposes of the social pact. But the clear implausibility of these conclusions demonstrates that something is wrong in his general approach to Rousseau's theory of moral freedom. Indeed, staying closer to what Rousseau said, one must conclude that while passion or sentiment is the root of human agency in the state of nature, it remains the root in political society as well. The individual's concern for her well-being is both what brings the pact into existence and part of what sustains it once it has been enacted. Of course, Rousseau's moral psychology was not a simplistic egoism. He granted that the concern for self might expand into a concern for family, or tribe, or community, and argued that it must so expand if the state is to last. But this emphasizes the point instead of diminishing it. The foundation of moral freedom is in the passions of the good citizen.23 But here a problem arises. The theory of moral freedom seems to say that in civil society humans become free beings, and so moral beings, only because they replace reason with sentiment, thereby lifting themselves from nature's meaningless play offerees into the realm of autonomy. If one must conclude that passion is the foundation of action in civil society, then the difficulty is obvious. The citizens of a properly constituted republic seem to be slaves as much as the residents of the state of nature because all are governed by appetite. Moral freedom is a chimera; and humanity has failed to gain the nobility and morality that Rousseau claimed were the consequences of political society. This is the contradiction from which Cassirer tries to save Rousseau by eliminating passion as the foundation of action in civil society; but the failure of his interpretation makes the contradiction more obvious and intractable. The problem reduces to the question of the relationship between the state of nature and political society. Rousseau could either argue that political society is 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 improvement on 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 is completely lacking in the resources to make good on it. Unfortunately, the latter also has two problems: some passages in the work explicitly deny it, and the interpretation seems to rob political society of the morality and dignity that is supposedly its most significant characteristic. I believe, however, that these two interpretations present a false dichotomy and that Rousseau's theory 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 idea that to be governed by appetite is slavery because it submerges the actor in nature's causal necessity (S 54). One must read the passage closely, however. While Gourevitch translates '['impulsion du seul appetit est esclavage' as, 'the impulsion of mere appetite is slavery', it might be more accurately rendered as, 'the impulsion of appetite alone is slavery'. One word makes a difference, 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 condition and why one cannot impose rational order on one's life, or give bounds to one's actions. In civil society, however, the situation changes. Humanity discovers that there is one law that a community can legislate for itself, a social pact 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 perform their duties, they are each obedient to a law that each prescribes to himself 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 are governed by both. They are governed by a fundamental passion for their individual well-being; yet this in turn is guided and informed by reason, which has shown them that the social pact is the necessary means for achieving that which they desire. From this perspective, Cassirer is correct to say that the dutiful and free actions of this citizen are those, and only those, that are rational; but they are rational in a hypothetical sense rather than in the categorical sense that he intends. These actions are not based on an immediate respect for the spontaneous idea of freedom; rather, they are based on prudence, which shows humanity that the social pact and its implied duties are the necessary means for removing itself from the state of nature. For Kant, of course, mere conformity 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 not imply a complete break with the state of nature; it implies that the natural

108 Rousseau's Theory of Freedom 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 satisfaction 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 Rousseau the motivation for entering the social pact, and thus becoming a selflegislating 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 associates to enter it in the first place.

Notes 1. 2. 3. 4. 5. Hobbes, Leviathan, 145 (Chapter 21). Berlin, Four Essays, xxxviii. Berlin, Four Essays, xl. Berlin, Four Essays, 145-54. Cranston, 23940. For a similar interpretation see also, Maurizio Viroli, JeanJacques Rousseau and the'Well-Ordered Society', trans. Derek Hanson (Cambridge: Cambridge University Press, 1988), 157f. Reisert, 123. 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 (June 1999), 299-333. Shklar, 90. Andrezej Rapaczynski, Nature and Politics: Liberalism in the Philosophies of Hobbes, Lock, and Rousseau (Ithaca: Cornell University Press, 1987), 222-3. For a full version of this objection see, Fralin, 80. Chapman, 72. Chapman, 73. Chapman, 70. 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. Ernst Cassirer, The Question of Jean-Jacques Rousseau, trans. Peter Gay (Bloomington: Indiana University Press, 1954), 99. Cassirer, 104-5.

6. 7.

8. 9. 10. 11. 12. 13. 14. 15. 16.

Moral freedom 109

17. 18. 19. 20. 21. 22. 23. Frederick Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom (Cambridge, Mass.: Harvard University Press, 2000), 56-7. Cassirer, 105-6. Hume, Treatise, 265-8 (Book 2, Part 3, Section 3). Kant, Grounding, 13 (First Section). Levine, 201-2. Kant, Grounding, 14 (First Section). 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 Chicago Press, 1989), 1-60. Kant, Grounding, 11 (First Section).

24.

Chapter 6 Conclusion

1
It is possible at this point to summarize the most important features of Rousseau's theory of freedom and to discuss their consequences for his overall political 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 all of 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 consists 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 be protected from interference both from the government and from society at large. Second, democratic freedom follows from his theory of sovereignty (Chapter 4. 1). Given that the social pact requires the associates to forfeit all of 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 privileges into 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 citizens may elect others to represent its sovereignty. Finally, moral freedom follows from the rational nature of the social pact (Chapter 5. 1). Because he defined moral freedom as rational self-legislation, and because the terms of the 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 and possessions (Chapter 5. 5). The three forms of freedom that he discussed are a kind of happy consequence of the terms of the social pact; but they are neither the 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 as before' (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 the absence of obligation, because the point of the pact is to establish mutual duties. 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 4950). These two points, that each kind of freedom follows necessarily from the social contract and that these freedoms are not the motivation for entering the pact in the first place, have an important consequence for how one understands Rousseau's political thought. He did not begin with the question of how to secure civil liberties, or how to produce a democracy, or how to 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 brings about the three kinds of freedom I have discussed. This is not to diminish the 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 democratictotalitarian, 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 moral worth only when it acts according to reason. The mistake is to think that the overall meaning or purpose of his political theory can be reduced to any one of these senses of freedom. He was not simply a liberal, or democrat, or Kantian, although elements of each of these can be seen in his philosophy. Rather, he provided a theory of justice and of obligation, which had important consequences for the kind of freedom that a political society should offer its members. The other problem with these narrow readings of his theory of freedom is 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 even with 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 implies that it must mould its citizens on these lines. Yet, this kind of indoctrination obviously threatens its own principles of civil liberty. The same is true of democratic freedom. Just as liberal societies require a certain kind of citizen, so do democratic societies; thus the pervasive cultivation of democratic

112 Rousseau's Theory of Freedom

virtue seems to endanger individual liberty and even to endanger democracy itself. The case of moral freedom is also analogous. Rousseau defended selflegislation; 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 one prescribed 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 to h i m . . . The more these natural forces are dead and destroyed, the greater and more lasting are the acquired ones' (S 69). Thus, when citizens are ceaselessly moulded to ensure that they have the virtues that support civil liberty, democracy, 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 designed simply 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 conditions 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 liberty was both a complicated thing and also perhaps a contradictory one. Furthermore, his insights about the nature and conditions of freedom are of permanent interest because they seem true as far as they go. It seems correct that civil freedom, democracy, and moral freedom are each a necessary part of an adequate theory of overall political liberty; and the effort of certain philosophers today and in the past to collapse freedom into something more simple, like 'the absence of external impediment to motion', robs one of the conceptual 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 civil liberty, democracy, moral freedom on the other; and there are further tensions between civil liberty and democracy, civil liberty and autonomy, and democracy 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 might limit or exclude other kinds. This is not to say that Rousseau's theory is defensible on every point. Among other things, he did not explain how to determine the free and fair conditions that make one's consent to the social pact binding; nor did he explain why 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 conclusions based on a hypothetical social contract (Chapter 2. 4). Furthermore, his use of the term 'natural right' was extremely complicated and perhaps incoherent (Chapter 3. 1). And there is an ambiguity in his theory of freewill, which perhaps cannot be solved in the context of his philosophy (Chapter 5. 3).

2
Rousseau's theory of freedom also suggests a number of important things about his general social and political thought. The first point is that it seems to refute the various Utopian interpretations of his work. There are many versions of this reading, the most interesting perhaps being that of Cassirer, whom I discussed in the last chapter. He believes that Rousseau meant to say that political society not only elevates human nature and makes life more pleasant but also perfects human nature; he argues that political society should help each of its members to 'secure his freedom and thus restore him to his true destiny'. 2 Thus, on Cassirer's interpretation the social pact does more for humanity than to make life tolerable. It has an epistemic function that is a condition for humanity's progress. He says that, 'The firm and clear formation of the world of the will must precede the construction of the world of knowledge. Man must first find within himself the clear and established law before 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 free inquiry because morality is secured. This is not a surprising view coming from Cassirer, yet it is implausible as an interpretation of Rousseau because the necessity that determines the stipulations of the social pact, and so of duty, is provided by nature, not by a spontaneous dictate of human subjectivity. The reason that the terms of the social pact are universal and unalterable is that nature is as it is. Rousseau argued that the social pact is an artefact whose stipulations are the result of a prior understanding of the state of nature. Cassirer is correct that the pact, once enacted, provides a law for the direction of the will. But he is incorrect that humanity finds this law within itself and that it is 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 the natural condition. This distinction may seem trivial, but in fact it is essential because it points to the pervasive weakness of this kind of reading, which does not acknowledge that for Rousseau the social pact and political society are products of a kind of decadence. The social pact would be not only unnecessary for human nature in its less corrupt forms, but also unintelligible. Scarcity and vanity together make it necessary; rationality makes it possible. The social

114 Rousseau's Theory of Freedom 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 the inverse of Cassirer's. While Cassirer underestimates the possible benefits of life outside of political society, other readers including Leo Strauss overestimate them. They believe that the purpose of the social pact is to return as much as possible to the state of nature, and in particular to preserve humanity's natural freedom. Strauss says that, 'Civil society must therefore be transcended not in the direction of man's highest end but of his beginning, his earliest past. Thus the state of nature tended to become for Rousseau a positive standard... the good life consists in the closest approximation to the state of nature which is possible on the level of humanity'.4 In other words, Rousseau believed that people must make a political order that approximates the state of nature to the degree possible and that preserves natural liberty, in which resides one's happiness and indeed one's humanity. The Utopia in question is the state of nature itself. What these interpretations miss is Rousseau's argument that people in the state of nature have no freedom worth preserving. They have only the nominal freedom of owing no obligations, a freedom that is of little good and considerable 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 return anyway. As for the advanced state of nature, it is of course miserable, and the point of the social pact is to get out of it, not to return to it. Furthermore, Rousseau argued that far from constituting one's humanity, natural freedom constitutes one's animality. As I discussed in the previous chapter, natural freedom, or the absence of obligation, is what makes humanity an undifferentiated part of nature's causal necessity. He argued that humans become human only in political society, which was his point in saying that in a good society a person should, 'ceaselessly bless the happy moment which wrested him from [the state of nature] forever, and out of a stupid and bounded animal made an intelligent being and a man' (S 53). This makes implausible the argument that natural freedom was the most real and most important kind of freedom to Rousseau and that the state of nature functioned in his philosophy as a Utopia or a normative ideal.5 These considerations lead to a final point concerning Rousseau's theory of freedom. While he argued that these freedoms are available only to the citizen in political society, citizenship is highly onerous in a number of ways that Rousseau himself hastened to mention. The reason is that, relying only on their instincts and their natural capacity for prudence, the citizens of the social pact would be drawn sometimes toward duty and sometimes away from it. To remedy this unreliability, Rousseau argued that they must be given a set of passions that are artificial and as different from the greed and

Conclusion

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vanity of the advanced state of nature as they are from the pity and self-regard of the pure state of nature. The necessity of these artificial passions puts into a peculiar 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 to say that civil life destroys humanity as to say that it creates it. The political society he described is different from the state of nature not only in that it brings the passions under the guidance of reason, but also in that it demands a new set of passions that are radical, unique, and unnatural. His insistence that the social contract creates humanity by creating moral agents means that humanity must be understood as an essentially denatured and artificial thing. Rousseau was uncompromising on this point. Referring to the task of the 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 is a perfect and solitary whole into part of a larger whole from which that individual would as it were receive his life and his being; of weakening man's constitution in order to strengthen it; of substituting a partial and moral existence for the independent and physical existence we have all received from nature (S 69). This theory has a very peculiar consequence. By saying that in order to preserve itself and to flourish humanity must enter political society, Rousseau appeared to say that in order to fulfil its natural desires it must abandon them. On this theory, the unexpected irony of political society is that, in order 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 virtue; in order to preserve their property they must sacrifice their wish to enjoy it to their altruistic love of country. In short, to fulfil our natural desires we must 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 so much regard for men like the praetor Brutus and Gato the Younger. By putting his own sons to death after their attempt to restore the Tarquins, Brutus exhibited the radical triumph of the civic self over the natural self. In this case, the artificial love of law and country triumphed over the natural love of family. Referring to Rousseau's use of antique virtue, Kelly says, 'He uses Cato to portray the perfect denatured citizen who is whole only by participating in his community'.6 The implication is that to be whole as a citizen, one must be denatured as a person. These observations put the two ways of life, the natural and artificial, into their proper relationship. The advanced state of nature, with its greed and vanity, is a perfectly natural condition compared to political society.

116 Rousseau's Theory of Freedom Some readers think that Rousseau meant also to depict a third way of life between the natural and the political that achieves a successful union of human nature and political necessity. Mark Gladis, for example, argues that Rousseau ultimately sought a 'middle way' that combines, 'devotion to family and to global justice; acceptance of diversity and love of common goals; selfassertion and renunciation; private perfection and public compromise; personal insouciance and social seriousness'.7 John Charvet argues, moreover, that Rousseau intended Emile to be just such a person who manages to be both a man and citizen.8 This reading is hard to reconcile with what Rousseau himself said, as well as with the nature of the case. In The Social Contract, he argued that there is only one social pact with one set of stipulations and that obedience to these stipulations requires of humanity that its natural inclinations be extinguished and replaced with civic sentiments. This is one of the least ambiguous elements of his presentation. Even in Emile he said, 'He who in the civil order wants to preserve the primacy of the sentiments of nature does not know what he wants. Always in contradiction with himself, always floating between his inclinations and his duties, he will never be either man or citizen' (E 40). What is more, since there is only one social pact and all obligations are based upon it, any attempt to dilute it in the name of natural sentiments would put an end to duty and to moral freedom. The unusual implication of Rousseau's theory is that there is one form of political society and everything around it is the state of nature, no matter how the latter might be arranged or rearranged. The point that I wish to end with is that the choice between these two kinds of existence is not a simple one, and it is one to which Rousseau gave no unambiguous preference. Cassirer and others are right to emphasize the morality, order, and dignity of political society; but at what price do these blessings come? Rousseau argued that political society comes into being only when humanity makes itself into something that it is not. One can summarize this line of thought by saying that the choice open to humanity is to be ourselves and perish, or to survive by taking up the life of someone else. For those who want to live, the choice may seem an easy one; but things are not simple. This someone else, in whose footsteps a citizen must walk, has disadvantages in addition to being an alien being; and Rousseau drew the reader's attention to all of them. First, he argued that humanity's real nature and its civic nature are inevitably at war with each other in political society. The rarity of Brutus is what makes him noticeable. A freedom-loving nation might occasionally produce a citizen so perfect that his or her natural self is all but eliminated; yet this is an exception. Most people would presumably find themselves in a state of internal conflict. This conflict is not the easy one between long-term goals and 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, love of family, and even greed and vanity, and, on the other hand, the civic passions for duty, selflessness, and country. It seems that most people, finding it impossible to be either perfectly civil or perfectly natural, would live in a permanent condition of internal severance. Furthermore, as the citizen is a kind of artificial being, Rousseau argued that 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 factionalism. 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, he argued 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 as a citizen. The conclusion of this line of thought is that political society is an ambiguous blessing. It asks of people that they make themselves into something fragile, artificial, and prone to a perversion that brings them to a condition worse than that from which they started. A person may reasonably refuse the request. For, the condition of citizenship is that individuals alienate not 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 imperfect because it demands that people forfeit what they are for a goal that is itself unstable and impermanent. If this exhausts the possibilities it is perhaps not because Rousseau's intellect failed him but rather because he thought there is no solution. I believe that the complexity of his theory, and its apparent lack of a single prescription, is not exactly a weakness in his philosophy. It is rather an 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 freedom excludes other kinds; and the conditions needed for a free society sometimes 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 deepest implication of his theory is that no permanent solution exists to the human problem because no order of things wholly satisfies our nature. There is, in

118 Rousseau's Theory of Freedom 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 of the Lawgiver see, Robert A. Nisbet, The Questfor Community (Oxford: Oxford University Press, 1953), 140-71. Cassirer, 105-6. Cassirer, 57. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1950), 282. For the same line of thought according to which political society should restore 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 Idea of Liberty from Rousseau to Foucault (Chicago: University of Chicago Press, 1997), 67-70. For an interesting criticism of this kind of Utopian reading, see Robert Pippin, 'The modern world of Leo Strauss', Political Theory, vol. 20 no. 3 (August 1992), 448-72. Kelly, Rousseau's Exemplary Life, 49. Mark S. Cladis, Public Vision, Private Lives: Rousseau, Religion, and 21st-century Democracy (Oxford: Oxford University Press, 2003), 186. John Charvet, 'Individual identity and social consciousness in Rousseau's philosophy', Hobbes and Rousseau, 462~83.

2. 3. 4.

5. 6. 7. 8.

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Index

amour-propre, see vanity

Aristotle on abstraction 23 on democracy 74-5 autonomy, see moral freedom Berlin, Isaiah criticism of Rousseau 68 negative and positive liberty 93-4

Grotius, Hugo on natural law 256 on slavery 35, 78-9 happiness 104-6 Hobbes, Thomas on freedom 92~3 on the state of nature 13-16 Hume, David objections to contractualism 39-44 on reason as a motivation 64, 105 jury theorem 73-7 justice 29-30, 49-51 Kant, Immanuel moral philosophy 103-8 on the spontaneity of practical reason 65n. 14
law 44 Lawgiver 45-6 and civil freedom legitimacy 29-30 liberalism 59 liberty, see freedom Locke, John 57-8

59,

civil freedom 52-6 civil liberty, see civil freedom civil rights, see civil freedom common good, see general will Condorcet, Marquis de, see jury theorem consent 28-30 Constant, Benjamin 86-90 Cassirer, Ernst 103-8, 113-14 civil religion, see religious toleration deliberative democracy 73-6 democracy, see deliberative democracy, democratic freedom, direct democracy democratic freedom 71-3 direct democracy 72-81 duty, see obligation equality and civil freedom 60-1 in legislation 81-5 freedom 1-4, see also civil freedom, democratic freedom, moral freedom, natural freedom freewill 61-6, 98-100 gender 3In. 2 general will 44-5 government 45, see also law, Lawgiver, Prince, Sovereign

66-8

majority rule 84-5 moral freedom 92~4 morality 95-7 natural freedom 48~9 negative liberty, see Berlin, Isaiah noble savage 97 obligation 8-9, 29-30 and moral freedom 95-8 and rights 49-51 political society 28-9 compared to the state of nature 113-17

124 Index
positive liberty, see Berlin, Isaiah Prince 45 and civil freedom 54-6 prisoners'dilemma 313 property 36-8, 49-51 religious toleration 56-8 representation, see direct democracy rights 49-51 self-legislation, see moral freedom slavery 35, 78-9, 97-8 to passions 92-7, 107 social contract, see social pact social pact 306 Sovereign 44-5 and civil freedom 53-6 see also direct democracy stag hunt 31-2 state of nature 7-9 as explanatory principle 23-6 as history 18-23 Stoicism 93-4 utilitarianism vanity 1416
war 8

56