Wednesday, January 11, 2006

Chapter VI Law

BY the social compact we have given the body politic existence and life; we have now by legislation to give it movement and will. For the original act by which the body is formed and united still in no respect determines what it ought to do for its preservation.

What is well and in conformity with order is so by the nature of things and independently of human conventions. All justice comes from God, who is its sole source; but if we knew how to receive so high an inspiration, we should need neither government nor laws. Doubtless, there is a universal justice emanating from reason alone; but this justice, to be admitted among us, must be mutual. Humanly speaking, in default of natural sanctions, the laws of justice are ineffective among men: they merely make for the good of the wicked and the undoing of the just, when the just man observes them towards everybody and nobody observes them towards him. Conventions and laws are therefore needed to join rights to duties and refer justice to its object. In the state of nature, where everything is common, I owe nothing to him whom I have promised nothing; I recognise as belonging to others only what is of no use to me. In the state of society all rights are fixed by law, and the case becomes different.

But what, after all, is a law? As long as we remain satisfied with attaching purely metaphysical ideas to the word, we shall go on arguing without arriving at an understanding; and when we have defined a law of nature, we shall be no nearer the definition of a law of the State.

I have already said that there can be no general will directed to a particular object. Such an object must be either within or outside the State. If outside, a will which is alien to it cannot be, in relation to it, general; if within, it is part of the State, and in that case there arises a relation between whole and part which makes them two separate beings, of which the part is one, and the whole minus the part the other. But the whole minus a part cannot be the whole; and while this relation persists, there can be no whole, but only two unequal parts; and it follows that the will of one is no longer in any respect general in relation to the other.

But when the whole people decrees for the whole people, it is considering only itself; and if a relation is then formed, it is between two aspects of the entire object, without there being any division of the whole. In that case the matter about which the decree is made is, like the decreeing will, general. This act is what I call a law.

When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. Thus the law may indeed decree that there shall be privileges, but cannot confer them on anybody by name. It may set up several classes of citizens, and even lay down the qualifications for membership of these classes, but it cannot nominate such and such persons as belonging to them; it may establish a monarchical government and hereditary succession, but it cannot choose a king, or nominate a royal family. In a word, no function which has a particular object belongs to the legislative power.

On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills.

We see further that, as the law unites universality of will with universality of object, what a man, whoever he be, commands of his own motion cannot be a law; and even what the Sovereign commands with regard to a particular matter is no nearer being a law, but is a decree, an act, not of sovereignty, but of magistracy.

I therefore give the name "Republic" to every State that is governed by laws, no matter what the form of its administration may be: for only in such a case does the public interest govern, and the res publica rank as a reality. Every legitimate government is republican; what government is I will explain later on.

Laws are, properly speaking, only the conditions of civil association. The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. But how are they to regulate them? Is it to be by common agreement, by a sudden inspiration? Has the body politic an organ to declare its will? Who can give it the foresight to formulate and announce its acts in advance? Or how is it to announce them in the hour of need? How can a blind multitude, which often does not know what it wills, because it rarely knows what is good for it, carry out for itself so great and difficult an enterprise as a system of legislation? Of itself the people wills always the good, but of itself it by no means always sees it. The general will is always in the right, but the judgment which guides it is not always enlightened. It must be got to see objects as they are, and sometimes as they ought to appear to it; it must be shown the good road it is in search of, secured from the seductive influences of individual wills, taught to see times and spaces as a series, and made to weigh the attractions of present and sensible advantages against the danger of distant and hidden evils. The individuals see the good they reject; the public wills the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their wills into conformity with their reason; the latter must be taught to know what it wills. If that is done, public enlightenment leads to the union of understanding and will in the social body: the parts are made to work exactly together, and the whole is raised to its highest power. This makes a legislator necessary.


Blogger JasonJ said...

I always find myself amazed and perturbed reading this chapter. Rousseau makes some erroneous assumptions about justice. His argument also reeks of recursion on a subject that one would assume fairly straight forward at least initially; but he makes some points that really need to be noted here.

It is Rousseau's assertion that a given society cannot function without rules to live by. Law is the lifeblood of the state. It is what holds the fabric of society together. I personally take issue with Rousseu's assertion that all justice comes from God. This is a subject that I face head on throughout this argument. While I can appreciate the impact that religion has had on evolution of society in general, it is simply unreasonable in this day to presume that Christianity or any religion has always been the inspiration for a just society. Fortunately, this is not the cornerstone of this particular argument so I will just leave it at that for now.

My other criticism aluded to is the circularity that that state cannot create a law pertaining to the particular interest because that is outside its realm of authority, but if it cannot then it cannot rule the parts of the whole then it cannot rule the sum of its parts. This type of argument ends in an infinite regress that is conterproductive to the whole argument here. It does bear comment however. Rousseau goes on to make the point of this chapter we are getting to via this recursive diatribe and once againshould have left well enough alone but he was the man he was. As I said previously, this statement has no place in an argument such as the one presented in this chapter; but Rousseau was just this kind of man. His entire life was one big quagmire that contradicted itself in ways that scholars have devoted lifetimes to understanding. Rousseau was the tyrant that always cheered for the underdog. He was the pious man who abandoned five children at the chuch steps because he felt he could not properly raise them. He was the inspiration of generations of revolutionaries who begged his meals from the aristocracy while claiming to refuse charity to the world and to himself. He was also incredibly insightful in many areas of human interaction however and that is why he is so endearing to me.

So what is it that I can take away from this chapter?

What Rousseau is aluding to here is a theme of Rule of Law vs Rule of Man. The 18th century saw the definative ending of the feudal system and the ushering in of a new era in history. Rule of Law was becoming the order of the day as it still somewhat remains to this day. Rousseau chooses to refer this state "Republic" and consistently uses this reference from here on. Rousseau does not assert that any particular administration is superior to all others, and indeed, we will see shortly that he favors none for all situations although he does assert that some styles are better for some societies and others are better suited for different societies.

Ultimately this statement disolves into a polemic argument against the rule of man. An ideology that we all but take for granted in our present age. It is my opinion that we should not however take rule of law as a given, but that is another topic.

Sat Feb 04, 08:40:00 AM CST  
Anonymous James said...

Ok i'm still in the process of reading his work, and reading various commentaries. On this specific area of his work i have various points of interest that i would like to raise.

Rousseau argues that the citizens should be “excessively dependent” on the state. Why? To garuntee the freedom from dependence on another man (“toute dependence personnelle”). This clearly shows how Rousseaus concept of freedom comes from elimination of the king, or master. It is the freedom that he sought when he was a servant to a diplomat. It is the freedom from a single master. He sees danger in a master of one man: he seems to see no danger when the master is not one man, but an institution (the majority).

According to Rousseau, men become truly free when they enact their own laws. However, Rousseau also argues that men are ignorant. It is not the “free will”, or conscience that is the source of truth/morality/”the way”, but the general will/general good. Indeed, such “freedom” of enacting their own law is secondary: “one does not have to progress very far through the pages of the social contract to see how modest this role of enactment is allowed to become” (introduction, page 42, The social contract, penguin classics).

This leads us onto how laws emerge. To Rousseau, men can’t be trusted to form the original laws: there is a need for a law giver (“freedom for Rousseau consists of putting oneself willingly under rules devised by someone else” (ibid)).

Indeed, his other works, especially Emile, reveals how Rousseau views the “Tutor” as dominant figure. This translates, in his Social contract, into the importance/dominance of the lawgiver. The people, in effect, need someone to save them from themselves. They need an englightened person to spark the process off. To me, this shows how his concept of the General Will is flawed. It shows how the General Will is not democratic, but simply one specific “purpose” or “perception” of the “good life” (common good). Who or what is the original source? A great man? A religion (he was after all a Christian)?

Sun Feb 05, 08:25:00 AM CST  
Blogger JasonJ said...

James, what you are beginning to see are the very complexities that have always been the major criticisms against Rousseau.

As I said previously, I think you would benefit greatly from reading one of the many wonderful biographies written about this man. I have one entitled "Rousseau and the Spirit of Revolt" by William H. Blanchard. What you find is a tyrant trapped inside a man that has an insatiable urge to always root for the little guy, even if he, himself is the persecutor.

It is my belief that Rousseau was always deeply scarred from his Mother's death while delivering him and the guilt his father imposed on him. I'm not really sure what you know about the man outside his writing so it is difficult for me to elaborate more without either sounding like a know-it-all or speaking of things that you do not have a background in. I'd love to discuss this aspect of Rousseau with you further though.

Yes, to some degrees, it would seem that Rousseau did put entirely too much faith in the state and perhaps too little in the reason of the individual man. I believe this is due in large part to his early upgringing in the Republic of Geneva. In addition to his affection for democratic rule he inherited his Calvinist religious ideology from Geneva as well.

I guess what you really need to understand is that Jean-Jacques Rousseau was a serious mess of a human being. The man had trust issues due to the fact that his father abandoned him; which in turn, contributed to his abandonment of his five children with Terese to the devices of an orphanage. He had a somewhat Sado-Masochistic sexual tendancy that he could not come to grips with and could not satisfy. He wished to champion the underdog, regard himself as fiercely independent, and accept no charity while taking whatever charity offered him by the various aristocrats that entered his life in the parlours of Paris. Indeed, as I have said previously, Rousseau was a walking contradiction of terms.

So what is it that makes such a man so endearing? What makes the idea of the Social Contract live on? I personally think that had I lived among the elite of Paris in the mid-Eighteenth century and known Rousseau as a man, I probably would have been in Voltaire's camp and wanted to kick his ass for being such a whiner; but despite all that, the man was right. He truly had an insight toward how society worked, at least in his current day. This is another point I would like to share with you about Rousseau's writing. Unlike authors such as Nietzsche, Rousseau did not write a philosophy to endure the ages. His was more borderline with polemic than good moral philosophy. Perhaps this stems from living in Paris in such turbulent times or perhaps it was just nearsightedness of the man; but it is clear that he did not understand his work enduring over two centuries to be studied by the likes of us. This does not however belittle his contribution to a field of humanities studies that became known as Sociology. I also in no way wish to take away from his meanings that do still hold true today.

I have always stated that everyone should read Rousseau. I do not feel that we could ever approach the utopian society that he envisioned, but in the same vein should we not study Marx? Should we not study what went wrong with the USSR? Should we not learn our lessons from Cuba? from early socialist experiments in America? If we must choose between this and the Social Darwinism that Capitalism promotes, I think the choice is obvious.

Your comment ends with your observation that Rousseau was a stauch believer in authority figures, if I may be allowed to paraphrase you here. And yes, you are absolutely correct. Rousseau believed that all authority comes from a benevolent diety. This is the point where my taste departs from the man, and where I meet the Voltaire camp. Wise laws are enacted by wise men, and good government is possible with lilberal education for the masses. Throughout his philosophy, Rousseau argues that men need fear of God to be ruled, this is a contradiction to his original claim in Origin of Inequality that man in nature is generally good, but we can overlook that point for the moment.

I hope this helps somewhat. I would encourage you to read some of the other discussions I have here. Not everything deals with Rousseau directly but hopefully you will find some interesting arguments just the same.

Mon Feb 06, 07:42:00 PM CST  

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