GENEVA AS A FLAWED MODEL FOR DU CONTRAT SOCIAL

Scott's belief that Rousseau does not “delegate the power of legislative initiative” can only be made convincingly if readers are willing to ignore key sections of the philosopher's political writings that contradict this view. These sections, some of which I describe as “soft ground,” owing to uncertainty about the author's motivations, Scott considers to be groundless because they refer to Geneva, a nonideal state. The philosopher is said to be merely “trying to limit the damage from what he otherwise considers an illegitimate arrangement.” Scott rightly notes that I characterize the Dédicace to the Second Discours and Lettres écrites de la montagne as “soft ground upon which to stake a claim that representatives are the locus for political authority ” (Putterman 2003, 462–63), yet it is also true that many of the prescriptions for Geneva in the latter work are consistent with key aspects of the political theory of Du contrat social (LEM VI, 232/808; VIII, 261/842). Notably, Rousseau labels agenda-setting by government to be “one of the best maxims which good sense might dictate regarding the constitution of a government” (DI 117/114) and he identifies Geneva's constitution as being the basis for the positive political program of Du contrat social expressly while still condemning its systemic legislative flaws. He writes, “I took your Constitution, which I found to be beautiful, as the model for political institutions” and asks, “that primitive Contract, that essence of Sovereignty, that empire of the Laws, that institution of Government…isn't this stroke for stoke the image of your Republic, since its birth up to this day?” (LEM VI, 233/809).

In his discussion of the “right of legislation,” specifically, in the Dédicace, Rousseau writes that “I should have sought out a country” where “not everyone has the power to propose new Laws according to his fancy; that this right belong to the magistrates alone” (DI 116–17/113–14). In this letter the philosopher is not merely describing a status quo situation but positively endorsing (“J' aurois cherché un Païs”), among other things, legislative interference by magistrates. His belief is that a people ought to be “content to ratify the Laws and decide the most important public business in a Body on the recommendations of the Chiefs” (116–17/114). Why this is so is explained:

In this vein, Helena Rosenblatt (1997, 162) deems the descriptions of agenda-setting in the Dédicace to the Second Discours and the Lettres écrites de la montagne accurate. Despite her skepticism about the sincerity of the philosopher's praise for the Petit conseil in these works, she claims that Rousseau “disapproved of both popular legislative initiative and popular referendums. The role of the citizens was to approve or reject laws and to elect officials capable of enforcing these laws for them.”

Even assuming Rousseau to be insincere about Geneva being the political model for Du contrat social, there are passages in the latter work that refute Scott's claim that the philosopher “does not positively argue that commissaires, magistrates, or anyone else has the power to propose laws.” Unfortunately, the import of these passages is obscured by the label that he assigns to legislative agenda-setting as a popular right: “gatekeeping.” Scott writes, “I follow Putterman in using the term ‘agenda-setting’ to refer to the power of legislative initiative, although this power is more properly a form of ‘gatekeeping,’ which is merely one form of agenda-setting.” In Rousseau's writings the two concepts of agenda-setting and gatekeeping are distinct. With respect to the former, it refers to the drafting, framing, or writing of the laws expressly. Conversely, “gatekeeping,” a term that is not Rousseau's but still appropriate, refers to the people's ability to check others who frame the legislative agenda on their behalf. The people need not write the laws by themselves but they must be able to veto any initiatives with which they disagree prior to the vote. As Scott comments, this oversight is one “form of agenda-setting” because the people are empowered to discuss, propose, and veto initiatives. This view is consonant with the thrust of my earlier essay—that the people's ability to exercise either a direct or an indirect “final check” over legislation ensures that they always remain the locus of political power in Rousseau's state. One might characterize this as a “double check.”

The difference between agenda-setting and gatekeeping is evident in the seventh Lettre écrites de la montagne. There, Rousseau is critical of Geneva's constitution for forbidding the people from exercising legislative oversight, not for permitting the government a role in lawmaking. Sovereignty is said to be violated because the Petit conseil goes unchecked rather than because this lesser body participates in lawmaking. Rousseau's complaint is against an inferior body “which alone proposes, which decides first, and whose voice alone, even in its own cause, permits its superiors to have one” (LEM VII, 252/832). The Petit conseil “alone has its own activity, that gives theirs to all the others, that in all of them, supporting the resolutions it has taken, gives an opinion two times and votes three times” (VII, 253/832–33). His view is that it is unreasonable “to make it so that none can propose anything” except “those who have the greatest interest in harming it” because “if the existence of the general Council depended completely on the small Council, the general Council would be suppressed forever” (VII, 249/828). In the end, the “sovereign power is enchained” if the people “cannot act except when it pleases your Magistrates, nor speak except when they interrogate” it (VII, 238/814). If the sovereign cannot act except when permitted by the government, then the laws make it “speak as it pleases” since “these Tribunals will certainly not approve propositions that would be prejudicial to them” (VII, 249/827–28). It is apparent that everything is “dead in the Republic”(VII, 252/832) when the sovereign cannot “speak as it pleases,” but this is not the same thing as saying that it is only alive when it speaks unassisted.

Rousseau's efforts to ensure that the sovereign “speaks as it pleases” inform his definition of separation of powers. His barring of any and all forms of legislation by the government (CS III:i, 82/395; III:iv, 90/404; EP 6/244; LEM IV, 232/808) can be shown to refer not to agenda-setting but to impositions placed on lawmaking that the people cannot overturn. Whenever the majority is prevented from proposing, opposing, or deliberating on a law, then it is the government who is sovereign. What divides sovereignty is not the presence of foreigners but the presence of a will that is foreign and binding. By itself, the sharing of legislative power does not constitute a separation of powers as long as the framers of the laws remain, as I argued earlier, “entirely and permanently subject” (Putterman 2003, 464) to the popular will. It is this same logic that applies to Rousseau's view of the “commands of the chiefs” in Du contrat social. Unchecked, government's commands or decrees are wholly illegitimate, yet they can still “be taken for general wills so long as the sovereign is free to oppose them and does not do so” (CS II:I, 57–58), according to Rousseau. It is this express freedom to oppose the chiefs—not the issuing of commands personally—that makes rule by government possible.

This interpretation also finds precedence in Rousseau's description of the législateur in Du contrat social as a body that “drafts the laws” and yet has no “legislative right” in the form of a final check (CS II:vii, 70/383). This function, drafting the laws, appears to devolve to the Prince (or government) in Rousseau's comparison between the “inventor” of the laws (the législateur) and the “workman” (the Prince) who replaces him. He writes that the Prince “need only follow the model which the other must propose. He is the mechanic who invents the machine, the first is nothing but the workman who assembles and operates it” (II:vii, 69/381). In this line the philosopher does not describe the Prince as merely operating the system of legislation created by the législateur but says he “assembles ” or builds it also (“l'ouvrier qui la monte et la fait marcher”). Considering that laws are what the législateur “assembles,” it is not entirely unreasonable to assume that Rousseau is referring to the assembling of legislation, i.e., that the Prince inherits the législateur's power of agenda-setting. As I explain in my essay, though (drawing from Emile I, 39/248; IV, 219/500), the chief difference between the respective functions of the législateur and the Prince is that the latter does not “remake individuals” but merely strives to “extend and strengthen” citizens' natural dispositions to give their passions “order and regularity” (Putterman 2003, 467). As I note, Fralin (1978) and others exaggerate the degree of interference that any similarity between the two institutions might suggest with regard to the writing of civil and criminal law to the point of arguing that “the government ought to exert a preponderant role in legislation.” What Rousseau actually believes is that government's role in lawmaking must be adequately checked but that this restriction need not bar any role in agenda-setting.

AGENDA-SETTING IN THE IDEAL AND NONIDEAL STATE

The most convincing argument for popular agenda-setting in Rousseau's state is, in my view, the notion that experts are superfluous because the volonté générale is generally known. What Rousseau says is that when this happens, “all of the springs of the State are vigorous and simple, its maxims are clear and perspicuous [claire et lumineuses], it has no confused and contradictory interests [and] the common good is everywhere fully evident” (CS IV:i, 121/437). With such clarity each citizen would not “propose new Laws according to his fancy” (DI 116–17/114), thus making interference by experts an unnecessary risk. Proposals would not be fanciful at all, but “what all have already sensed” (CS IV:i, 121/437). As Scott (2004) remarks, this shared conception of right requires only a “specific form and formality” to be realizable. When this occurs agenda-setting and ratification are near-seamless acts by the people, as they express the volonté générale in unanimity.

The central problem with this interpretation is that Rousseau characterizes lawmaking in his ideal state as achieving this heightened degree of transparency, yet he imposes restrictions on its exercise. Voting is free and transparent but what takes place before and afterward is decidedly less so. Owing to this difference, the philosopher's comparison between citizens and peasants in Book VI:i of Du contrat social can be construed as simply an ideal that the laws ought to embody rather than how this ideal is arrived at in a perfect state. Notably, in this passage Rousseau writes that “as it becomes necessary to promulgate new [laws], this necessity is universally seen“ (CS IV:i, 121/437), yet nowhere in the political program of Du contrat social does he allow the people to freely and regularly convene themselves when this need becomes known. All may recognize the need to pass new laws but the only body authorized to act on this need on a regular basis is the government (III:xiii, 111/426). This is true not only for citizens in states “badly constituted from their origin” (IV:i, 121/437) but also for citizens in his ideal state.

Rousseau's justification for this rule is that the decision to convene must be prescribed by law because it is a particular act. This said, this stricture also appears to derive from the philosopher's anxiety over the ascent of a “proud and restless” citizenry who, like Rome's unruly Comitia, pursues rash or imprudent change. Although his idealized citizens are of a wholly different temperament than the tumultuous or seditious Romans that he (and Montesquieu [1734] 1965, 93) alternatively praises and condemns, he considers this a fragile disposition. He appears to fear the emergence of an inspired citizenry that eagerly “flies to the assemblies” (CS III:xv, 113/429), ever becoming like the ancient Romans, sovereign members becoming “proud and restless” as the laws weaken over time. Although Rousseau claims that only large states “require supervision [police]” and praises Athens' “assembly of several thousands of quick-tempered, ardent, and almost unrestrained Citizens” for needing minimal supervision, he also says that assemblies that number in the thousands or tens of thousands, such as Rome's Comitia, require restraint (CS IV:iv, 132/449; LEM VII, 251/830–31; IX, 293/881). Like the lawgivers of old, his solution to this problem appears to be a “specific form and formality” for lawmaking that includes, among other things, a role for government in the early stages of the legislative process. Similar to the people's ability to oppose or veto legislative initiatives, though, the philosopher allows the people to self-convene if and when the government fails to exercise its duties in good faith.

Similarly, Rousseau's remarks about the censor reveal a role for government in the early stages of the legislative process. In Du contrat social, the censor is said to be an integral part of the state owing to citizens' need for moral rectitude. Unlike the foundational législateur, though, the censor is not a transitory body that departs with it but, rather, remains in existence to guide opinion as “legislation weakens” (CS IV:vii, 141/458), as the state needs to be “constantly vigilant to maintain or restore love of country and good mores among the people” (EP 126/262). A people's “opinions arise from its constitution” according to Rousseau, and “the Censorship maintains morals by preventing opinions from becoming corrupt, by preserving their uprightness through wise applications” of the laws (CS IV:vii, 141/459). For these “wise applications” to be effective, though, it is necessary that the people be kept unaware of the actual intent behind certain laws in order to maintain their desired effect on opinion. Popular ignorance makes it possible for the censor to enunciate the status of opinion on a particular question through reference to a law that, on its face, appears wholly unrelated. This is why, according to the Genevan, laws designed to influence “morals, customs, and above all opinion” are that “which the great Lawgiver attends in secret, while he appears to restrict himself to particular regulations which are but the ribs of the arch of which morals, slower to arise, in the end form the immovable Keystone” (II:xii, 81/394). This fourth “kind of law” that Rousseau assigns to the censor to administer wisely (IV:vii, 141/459) works best when the true object of each and every regulation is not fully known. All ought to know the intent behind most laws but not every law. Notably, in Book II:xii of Du contrat social, Rousseau refers to constitutional legislation specifically, rather than to the commands or decrees that would fall under government's jurisdiction even before the législateur departs. All of these (constitutional law, commands, and decrees) are the object of censorship.

Assuming that it were the case that the right of initiation belongs to the people alone, then this aspect of Rousseau's theory is an enigma.²

But there are other enigmas too. If Scott is indeed correct that Rousseau “nowhere positively asserts that the government should possess the right to propose laws,” it is even more true that the philosopher nowhere positively assigns this power to the people alone. Popular agenda-setting must be inferred from Rousseau's many statements that sovereignty not be divided (CS III:i, 82/395; III:iv, 90/404; EP 6/244; LEM IV, 232/808) because it is never argued for expressly. On the topic of agenda-setting, specifically, in his political writings, the Genevan asks only that the people's right to propose, discuss, and oppose legislation be respected. Readers are denied any opportunity to parse out his language on the subject because the rudiments or mechanics of popular agenda-setting in his ideal state are left unexplained in both versions of Du contrat social.

For a philosopher who harbored fears about his political program being relegated to the “land of chimeras” (LEM IX, 234/810), this silence is striking. Though Rousseau might have anticipated the skepticism of critics, apparently he never sought to explain how popular agenda-setting might work or give substance to a political proposal that, arguably, is the most chimerical of all. This silence appears especially curious in light of the expansive discussion of voting in Du contrat social. Presumably, agenda-setting and voting would prove to be identical functions for a people without any “confused or contradictory interests” who are deliberating over “clear and perspicuous” maxims (CS IV:i, 121/437). For a philosopher writing for the children of Adam it was incumbent upon Rousseau to explain the relationship between the two. Yet he doesn't. To locate an answer one must turn to the only discussions anywhere in his political writings where the subject is broached at all: the Dédicace to the Second Discours and the Lettres écrites de la montagne. And it is in these works that Rousseau stresses the need for legislative experts.

Finally, assuming that Scott is indeed correct that the right of initiation belongs to the people alone in Rousseau's ideal state, there are solid reasons for concluding that this is not to be the case for lawgiving in Poland, Corsica, Geneva, or any of his other nonideal states. On this point Scott appears to agree: it may be that the Genevan believes a virtuous citizenry living under a well-ordered constitution ought to draft its own laws, but it is not his view that this power should be perpetuated after morals decline. The philosopher expresses this viewpoint in a number of writings in a manner consistent with Scott's description of popular agenda-setting as adhering to a “specific form or formality.” His belief is that once the people are no longer able to recognize the “clear and perspicuous” volonté générale or have become too corrupt to give this will concrete expression, they ought not to continue behaving as if they were village peasants beneath an oak tree. As “the common interest diminishes” and the volonté générale is no longer “universally seen” (CS IV:i, 121/438), each citizen will “propose new Laws according to his fancy” and these proposals will “almost always” be “less certain than their dangers are great” (DI 116–17/114). It is because of these dangers that Rousseau suggests that within Geneva, the model nonideal state, supposedly, “the Laws have very wisely provided that…the proposing of such innovations would not pass without the approval of the Councils” (LEM VIII, 264–65/846–47).

In this respect, Rousseau identifies two kinds of people who are unfit for unmediated lawmaking in nonideal states: “nascent people” with “neither deep-rooted customs nor deep-rooted superstitions,” who remain capable of “appreciating sound maxims and of following the fundamental rules of reason of State” (CS II:x, 77/390; II:vii, 69/383), and “corrupt people” who, at their worst, are “competitors, rivals” and “enemies” and desirous of wealth and security over liberty (LEM IX, 292–93/881). His belief is that the latter kind have not known liberty or, if so, have lost it owing to moral decay (CS IV:i, 121/438). Their political prospects can be summed up in one of three ways: precarious self-rule, partial rule by others, or total domination. The first two types of rule form a Hobson's choice that Rousseau chooses between in place of domination in the Dédicace to the Second Discours and the Lettres écrites de la montagne. His view is that in a poorly constituted state it is best to avoid fanciful or dangerous initiatives and seek wise counsel (“the recommendations of the Chiefs”) and that this delegation of legislative power to experts does not undermine the liberty of those who are incognizant of the volonté générale and know liberty only in an “illusory and vain form” (CS IV:i, 122/438). Rather, it allows those who are the least capable of self-governance from having to draft laws by themselves and, as Rousseau explains, blundering fatally. This is why “the Laws have very wisely provided that the establishment and even the proposing of such innovations would not pass without the approval of the Councils” (LEM VIII, 265/847). Ideally, agenda-setting by experts is a temporary and partial bulwark against total domination if it is complemented by the people's right to discuss, propose, and oppose initiatives. As risky as this may be (if the check is uncertain), it is better than the prospect of “merchants, artisans, and bourgeoisie” behaving as forest peasants—for political liberty will be even more short-lived for a people who put security and private interest above the common good. This said, in the long term either choice will be fatal if the people are too corrupt to adequately check those whom they appoint as framers because persons who are “completely absorbed in their domestic occupations” will not be careful “about casting light on the conduct of their leaders” to recognize “the chains that are being prepared for them” until “they feel their weight.” Unlike ideal citizens, who vigilantly guard their liberty through active participation in lawmaking, such types will always be “occupied with their private interests, with their work, with their trafficking, with their gain” and, in the end, wind up “always distracted, always deceived” (LEM IX, 292–93/881).

AGENDA-SETTING IN DU CONTRAT SOCIAL

For Giovanni Sartori (1987) “a government of experts” (433) is admissible in a democracy “as long as what is essential—and therefore must be controlled—is kept within the area of democratic controls” (432). In Du contrat social, Rousseau keeps what is essential within the area of democratic controls and, in so doing, makes possible a level of popular participation in government that Sartori and other elitists consider impossible. The coercive and noncoercive power of these controls exercised prior to the vote, the subject of this essay, and that exercised after, the subject of my first, reveal the philosopher to be no less a democrat if a body other than the people drafts the laws. Through tightly coupled institutional checks Rousseau serves to ensure that the people continue to exercise sovereignty even if they do not write the laws alone. The only thing that they must do alone is vote.

The notion that only the highest or most remote standard for democracy—popular agenda-setting—must be satisfied for political sovereignty to remain undivided is at odds with the philosopher's desire for realism and his declared emphasis on voting as an expression of sovereign rule in Du contrat social. More importantly, though, it is superfluous. As long as the people retain a right of initiation that allows them to overturn any and all legislative proposals with which they disagree, it is not necessary that they draft all of the laws personally. With the right of ratification, this right to propose, discuss, and veto legislation written by others can be regarded as a second check. Even more than the idea that it is the people who must draft the laws, this interpretation is congruous with the theory and institutions of Du contrat social.