Political Crisis in Eighteenth-Century Geneva

Soon after their publication, Emile and The Social Contract were condemned to be burned in Geneva, and their author banished, under the orders of Jean-Robert Tronchin, the state prosecutor.Footnote ¹⁸ Unhappy with this decision, several Genevan citizens addressed a représentation (a formal petition) to the First Syndic demanding that the matter be put before the General Council, the assembly of citizens. Tronchin claimed that the government had final authority on all representations, which in the ensuing crisis was labeled le droit négatif, and laid out his position in the anonymously published Letters from the Country. It was in response to the latter that Rousseau wrote his Letters. He defended himself through a comprehensive interpretation of the constitution that struck at the heart of the most important question in Genevan political life: What should be the relationship between citizens and their government and what institutions should support this relationship?

Geneva was governed by several councils of decreasing size. At the top were the four Syndics, elected each year by the General Council. The latter consisted of “some 1500 adult male heads of households over 25 … [who] met to enact new legislation, to elect certain public officers, and to vote on taxation when it was necessary.”Footnote ¹⁹ The precise status of the General Council was a matter of controversy but nominally it was sovereign. Between the Syndics and the General Council stood several councils, the most important of which was the Small Council. It consisted of twenty-five members appointed from the Council of Two Hundred who held their appointments for life. By the end of the seventeenth century the Small Council had become the effective property of several wealthy Genevan families known collectively as the patriciate, which antagonized the Genevan artisanal class, the bourgeoisie.Footnote ²⁰ Genevan politics throughout the eighteenth century was punctuated by struggles between those who contested the Small Council's rights in the name of the General Council and the Small Council's efforts to restore control, often through violence that relied on external help.

All parties agreed that Geneva had originally been a democracy governed by its elected officers, the Syndics. Those who supported the government maintained that beginning in 1543 the General Council had progressively given up many of its rights to the smaller councils that now had a share in sovereignty. In this way “the worst excesses of democracy were curtailed and an efficient government created which could maintain the state commercially and diplomatically.”Footnote ²¹ The bourgeois camp challenged this view, insisting that Geneva ought to return to its original constitution. A disagreement over the government's rights to impose taxes without the General Council's consent became violent in 1737 and three foreign powers intervened to broker a reconciliation, the Settlement of the Illustrious Mediation. Based on Jean-Jacques Burlamaqui's theory of powers in equilibrium, its articles comprised Geneva's new constitution, and it was this document that Rousseau scrutinized in detail in the Letters.

The Letters from the Mountain

In the Letters Rousseau sought primarily to defend the people's right to make remonstrances as implying something more substantial than “the simple liberty to complain.”Footnote ²² In support of the bourgeois position he argued that the right of remonstrances, guaranteed by Article VII of the Mediation, had to mean that the government could not decide unilaterally to reject them.Footnote ²³ It had to consult the General Council before doing so. Otherwise, if Tronchin were right, the right of remonstrances would be nothing more than “a right that nature grants to everyone, and that the Law of no country deprives anyone of” (LEM, 262). His chief argument in the Letters is that the right of remonstrance is the sovereign's way of ensuring that the laws are being properly administered by the government. The problem faced by Geneva was the same as the problem faced by all peoples that institute legitimate governments in the Social Contract: how to make sure that the government exercises only the executive power and follows the sovereign will.

The familiar division of legislative and executive power, in favor of which Rousseau had argued in the Social Contract, is not sufficient unless the legislative is able to check the executive. That is the purpose of the right of remonstrances. By submitting a remonstrance the citizens are simply “expressing their opinion about matters that ought to be brought” to the General Council (LEM, 264). They are not voting on these matters or making a decision about them. Once a remonstrance has been presented to the Small Council, it ought to be reviewed by this body but it cannot be rejected by it.

This, however, applies only to those cases in which the remonstrance accuses magistrates of having transgressed the law. The same does not hold if the remonstrance is proposing that the law be changed. In this second case Rousseau states that the magistrates do indeed possess the droit négatif: “it incontestably belongs to them” (LEM, 265). But magistrates cannot have veto power over remonstrances that, in effect, accuse them of having transgressed the law for then they would “become supreme judges in their own case.” It is this specific version of the droit négatif that Rousseau rejects. He does so on the conviction that were the magistrates to be at fault “they would not stick any less to their claimed negative right against the evidence” (LEM, 266).

He further argues that two consequences follow from the Small Council's erroneous interpretation of Article VII. If magistrates were to possess the right to veto accusations against them then the Small Council would be the most powerful body in the state, to which all other bodies would be subordinated. It would thereby have usurped the sovereign authority and “all the solemnity of the Laws would be vain and ridiculous. … The State would not really have any other Law at all than the will of the Small Council” (LEM, 265). Here Rousseau responds to Burlamaqui's claim that the Genevan constitution is premised on a balance of powers between the different bodies of the state by showing that no such balance exists. A balance of powers could exist only if the right of remonstrance is interpreted as Rousseau interprets it: “for what better Government is there than the one whose parties are all balanced in a perfect equilibrium, in which private individuals cannot transgress the Laws because they are subject to Judges, and in which the Judges cannot transgress them either because they are watched over by the People?” (LEM, 262).

The second consequence of the Small Council's interpretation would be to render the Genevan regime inherently unstable. According to Rousseau, the Mediators had not given any thought to clarifying Article VII but had merely reproduced it as it had been written in 1707. Yet “the changes they were forced to make to other Articles obliged them to be consistent, to clarify this one, and to add to it new explanations” (LEM, 268). These changes, though not specified, presumably included two articles that Rousseau had characterized earlier as placing unjustified limitations on the rights of the General Council. Article VI in particular lent credence to the Small Council's pretension to possess veto power over remonstrances. According to it, the only matters to be considered by any of the larger councils, including the General Council, required the prior approval of the Small Council.Footnote ²⁴ If the interest of the state were “found to be in conflict with theirs,” Rousseau points out, “the latter always has the preference, because the Legislator is not permitted to take cognizance of anything except what they approve” (LEM, 249). While the Mediation recognized the General Council's right to legislate it did not provide this body with a way of ensuring that the laws it ratified would be followed and not transgressed. Consequently, every private grievance risked becoming a public one and Geneva would remain plagued by continuous cycles of constitutional crisis. Far from having resolved the constitutional crisis of 1738, then, the Mediation had simply reproduced the tension between the patriciate and the bourgeoisie, leaving Geneva as prone to political strife as before. The only way to provide a remedy, Rousseau states, is to follow his interpretation of the spirit of Article VII as a mechanism by which the legislative can hold the executive accountable.

Having failed to say explicitly that the right of remonstrances was incompatible with the droit négatif, the Mediators had left unanswered the question of who was to act as supreme judge in the state. Rousseau's answer is that the supreme judge can only be the general will, or “the informed public” embodied in the General Council (LEM, 267). Otherwise this role would fall to the magistrates, which amounted to nothing short of despotism. One commentator has pointed out that in assigning this role to the General Council, Rousseau was silent about the fact that the magistrates formed a numerical minority in it and were bound to lose the case.Footnote ²⁵ But Rousseau did not assume that the people would always side against the government. In a letter of January 17, 1765, he expressed doubts about whether the demands of the Genevan représentants would pass in the General Council. He advised them not to demand that his own condemnation be revoked for fear that the General Council would vote it down “and this would be to expose myself to a new, even more solemn, affront.”Footnote ²⁶ Throughout the second part of the Letters, moreover, Rousseau repeatedly described the Genevan bourgeoisie as law-abiding and obedient, often suggesting that they were far too indulgent of the magistrates’ transgressions.

At the level of institutional proposals, Rousseau made three, two of which he stated would certainly not be acceptable to the Small Council. All of his suggestions were premised on the idea that the General Council was sovereign and final interpreter of the law in Geneva. The first was to reinstate the bourgeois companies which had been abolished by the Mediation. If the government wished to judge the importance of remonstrances by the number of people that supported them it had to permit citizens to assemble in an orderly manner. Otherwise “the Magistrate would be in a quandary if he had to read the Memoranda one after another or to listen to the speeches of a thousand men” (LEM, 270). Although Rousseau presents this suggestion as an attempt to resolve a merely logistical problem, this is hardly the whole story. Article XXV of the Mediation which prohibited the assembly of bourgeois companies did not in fact prohibit purely civil assemblies.Footnote ²⁷ It had prohibited the former because the bourgeois militia had been responsible for the escalation of events that led to the Mediation and had always been the bête noire of the Genevan patriciate.Footnote ²⁸ In suggesting that the bourgeois militia be reinstated Rousseau was implicitly supporting its military character, which had enabled the bourgeoisie to intimidate the government in 1737. Also, in the Letters Rousseau often expresses concern about the growing passivity of the Genevan public due primarily to the commercial character of the bourgeoisie. He prescribed the militia in order to institutionally establish the necessity of a public life at Geneva, as historically these associations had also “formed a natural embryo for political assemblies.”Footnote ²⁹

His second suggestion was to reinstate periodic General Councils with a share in executive power. Acting in these specific cases as “Supreme Magistrate,” their authority would be limited to reviewing and deciding upon remonstrances. But Rousseau soon reveals that he has no hopes of seeing either of these two proposals realized in Geneva, for their effect would be to “force the Magistrates and all the orders to restrain themselves within the limits of their duties” (LEM, 274). In the end he settles on the simple right of remonstrances as previously discussed. The weight of remonstrances should not depend on the number of citizens that back them but the government must be compelled to address all that are submitted to it. If the government's response is found unsatisfactory, as proven by the accuser's persistence in his demands, then it must be compelled to bring these to the General Council. It is not necessary, Rousseau notes, that new meetings be established for this purpose. There are already two annual meetings for elections and these could also address all remonstrances submitted in the interval. Though Rousseau suggests that this final proposal is less radical than the previous two, it is clear that in all of its essential qualities it shares the same spirit. The General Council is meant to act as supreme judge in the state and final interpreter of the law, the effect of which should be to rein in the government.

The Public as “Supreme Judge”

Here it is worth pausing to consider whether the sovereign assembly can act as supreme judge. The Social Contract appears to reject this “Athenian” option, suggesting that the sovereign and the government must not be confounded in either theory or practice.Footnote ³⁰ Rousseau's position on this question, however, is much more nuanced that it first appears, for in practice it is neither possible nor desirable to fully separate the two. The general assembly remains the final arbiter on all questions of legal interpretation. While in the Social Contract Rousseau had distinguished the government from the sovereign, the purpose of his argument was not so much to restrain the popular assembly as to prevent the government from performing more than an executive function. It was an argument against those who might suppose that the government was sovereign, rather than against the idea that the popular assembly may also govern.

When characterizing the general will as the necessary normative foundation of all laws, Rousseau denies that this will could apply to particular cases or make judgments about them. It is generality that makes the law equitable. Without this characteristic it is nothing more than force, or the will of a particular body exercised on another. Generality cannot be preserved, however, if the object of the will is not the unity of the people or “their actions in the abstract” (SC, II.6 [6]). It is for this reason that legislative power is theoretically distinct from executive power. The former acts only by general pronouncements, or laws, the latter by particular pronouncements, or decrees. Having described the general will in this way Rousseau says the following:

This statement appears to present a problem for Rousseau's contention in the Letters that in cases of conflict between the magistrates and the people the general will ought to act as supreme judge. How can the general will decide particular cases without ceasing to be just? While Rousseau neither raises nor answers this question in the Letters, in what follows I attempt to show that his proposal is compatible with the Social Contract.

The general assembly cannot exercise executive authority as sovereign, but it can do so as a direct democracy. In fact, this transformation is the necessary foundation of all legitimate governments, whatever their form. The act of establishing government is composed of two acts, Rousseau explains. First, the sovereign decides what form of government will be instituted in the state. As this is a general act, it must be executed by a body other than the sovereign. The necessary second step is thus the transformation of the sovereign into a direct democracy that executes the law. It creates the government and entrusts it to particular persons. In principle, then, while legislative and executive powers are distinct they can coincide in the same body as they do in a democracy. As Rousseau puts it: “The Sovereign can … entrust the charge of Government to the whole people or to the majority of the people. … This form of government is given the name Democracy” (SC, III.3 [2]). The people's share in executive power does not contradict Rousseau's principles as long as its decisions are understood as acts of magistracy and not sovereignty. In the passage cited above Rousseau attempts to distinguish legislative power from executive power by clarifying that the former can only have a general object of deliberation. He is not arguing that the coincidence of both powers in the same body is illegitimate. At Athens the people's role as judges was not illegitimate. What was illegitimate was its belief that such acts were acts of sovereignty, that is, legislative acts.

But the story does not end here, for it was precisely the practice of direct democracy that encouraged the collapsing of legislative and executive functions at Athens. While democracy is not illegitimate, it is problematic, “for things which ought to be kept distinct are not kept distinct” (SC, III.4 [1]). Direct democracy, where the people are simultaneously legislators and executors, encourages the mistaken idea that sovereign power is executive power, that is, simply force. As Rousseau puts it: “If it were possible for the Sovereign … to have the executive power, right and fact would be so utterly confounded that one could no longer tell what is law and what is not” (SC, III.16 [1]). When the sovereign claims to possess executive power, it proves impossible to determine whether a particular command is authoritative because it is right (i.e., general and so equitable) or because it is done (i.e., simply decided by the stronger party). Democracy, then, is not illegitimate but it does present a great practical problem: the people may come to believe that they hold sovereign power because they are stronger, not because their perspective is general and equitable. Having defined democracy as rule of the majority, Rousseau then says:

Although Rousseau here suggests that governmental corruption is preferable to legislative corruption, he is far from dismissing the problem of governmental corruption entirely. In the Social Contract he proposes periodic assemblies of the people as the best defense against the government's tendency to usurp legislative power. The actions of such assemblies are identical to the double process by which governments are originally instituted. The people, as sovereign, is asked whether it wishes to keep the current form of government and as executor it is asked to decide whether to “leave its administration to those who are currently charged with it” (SC, III.18 [8]). In other words, such assemblies would not only make the sovereign visible; they would also routinely transform the people into a direct democracy by periodically returning a share of executive power to the people.Footnote ³¹ While Rousseau objects to direct democracy as practiced in Athens, his institutional proposals in the Social Contract adopt a version of this practice as a necessary check on the executive. “These assemblies of the people which are the shield of the body politic and the curb of Government have at all times been the dread of chiefs.” Their significance and effectiveness in doing so are not fully apparent if one ignores the fact that in them the people transforms itself into a provisional government (i.e., a democracy) which then institutes the actual government. Consequently, in these assemblies “the prince recognizes or has to recognize an actual superior” (SC, III.14 [2]). Not only are all legitimate states republican, then, but all healthy states must have an element of direct democracy.Footnote ³²

One aspect of his solution remains to be examined, however. Rousseau claims that judgment in such cases is up to the general will. Yet in the Social Contract he argued that this will cannot be invoked in particular cases, for this would render the assembly's decisions inequitable. The first thing to note is that in the Social Contract Rousseau had in mind cases where there is no “general and prior convention.” In such cases the general will cannot act as judge because it does not exist. What exists is the will of one individual against the will of a group. Since there is no common ground between the two there is no general will that can pronounce on the case and so no principle of equity. If a disagreement arises in the absence of a prior convention one cannot “try and invoke an express decision of the general will” because, as there is no such will, the will of the stronger party would end up masquerading as the general will (SC, II.4 [6]). The same is not true in the case of Geneva.

What the general will is called upon to decide is not a case about which no prior convention exists. Rather, the general will is asked to determine the correct interpretation of an existing law the meaning of which has become contentious. Since the object of such deliberation is a law, the decision of the General Council would not violate the requirement of generality. Interpretation of the law falls squarely within the jurisdiction of the legislative power. In the Social Contract Rousseau states that “he who makes the law knows better than anyone else how it should be executed and interpreted” (SC, III.4 [1]). When the General Council is convoked to address remonstrances, then, it is being asked to decide the meaning of the law that the magistrates have been accused of transgressing. It is not asked, in its capacity as sovereign, to decide whether a particular magistrate is guilty or innocent. This decision would be an act of government and would depend on settling the meaning of the law.

Rousseau's Conservatism and the Question of Legislative Initiative

Several commentators have pointed to the curious discrepancy between the theory of popular sovereignty in the Social Contract and the support in the Letters for restricting legislative initiative to the government. According to some, this restriction contradicts the spirit of the Social Contract (SC, II.6; III.1).Footnote ³³ As Derathé puts it, “one cannot take away from the legislative power the initiative of [proposing new] laws, without limiting and even singularly paralyzing the activity of the legislative power.”Footnote ³⁴ John Scott argues that given Rousseau's distrust of the executive, his assertion in the Letters that legislative initiative should be restricted to the government must signify a dilution of his principles in the context of adverse political circumstances.Footnote ³⁵ Others, however, have suggested that this assertion points to Rousseau's veiled support for a strong executive charged with “guiding” or “manipulating” the people. Ethan Putterman, for example, argues that Rousseau intended magistrates to have a share in legislative power, an argument previously made by Arthur Melzer.Footnote ³⁶ According to Putterman, Rousseau regarded governing elites as depositories of “the body of laws erected by the législateur.”Footnote ³⁷ Responding to Scott's critique that Rousseau had too little faith in governments to entrust them with upholding the constitution, in a subsequent article Putterman adopted a weaker version of his thesis: governments can have a share in legislative power so long as the people have final authority by voting on all legislation.Footnote ³⁸ He contends that Rousseau restricted legislative initiative to experts only in cases of corrupt peoples like the Genevans who were unlikely to know or follow the general will.Footnote ³⁹ This version of his thesis, however, is open to the same critique as his previous one: if Rousseau trusted governing elites to the point of granting them authority to guide a corrupt people towards the general will, what explains the need for the latter as a legislative check? How effectively can a people that does not recognize the general will hold governments accountable for transgressing it?

In what follows I attempt to bring some clarity to this question. First, I argue against the position that Rousseau's restriction of legislative initiative to the government is a matter of principle, or even an absolutely necessary part of his institutional thought. Second, I argue that this restriction need not contradict the principles of popular sovereignty elaborated in the Social Contract. But this is not simply because Rousseau believed that popular sovereignty requires only the people's right to vote on legislation. If the matter remains at this level of abstraction it is always possible to wonder whether restricting popular legislative initiative does not threaten to paralyze the activity of the legislative power, even if, strictly speaking, it does not contradict the principles of the Social Contract. Turning to the case of Geneva in particular I note that this conclusion does not follow only because Rousseau believed that the greatest threat to the people's sovereignty was its lack of control not over legislative initiative but over the administration of the law. In other words, he conceded that the government should have an exclusive right of legislative initiative only because he did not think that the absence of this right was the crucial threat to the people's sovereignty in Geneva.Footnote ⁴⁰ From this perspective the Letters are not only fully in line with Rousseau's principles in the Social Contract, but they also provide a rich, complex, and far more explicit picture of Rousseau's thoughts on democracy than the former work.

Nothing in Rousseau's principles requires that legislative initiative be the exclusive right of governments. Gabriella Silvestrini's point that legislative initiative must be considered an act of government because it is a particular act is difficult to substantiate.Footnote ⁴¹ Rousseau certainly speaks of particular acts as acts of government and not of sovereignty. But what he means is that the object of such acts is particular, and this is certainly not the case with legislative initiative insofar as the object of all laws is general. There is no reason to believe, therefore, that legislative initiative is in principle an act of government any more than one ought to believe that casting a vote is an act of government simply because it is a particular act. Neither is legislative initiative an act of sovereignty, however. Actions like proposing, debating, or voicing opinions on laws are by their nature not legislative acts. Rousseau points out that “all of the Sovereign's acts can only be laws” (SC, III.1 [3]). Hence, only one type of action can be considered sovereign: the general assembly's ratification of law. In principle, then, legislative initiative is neither an act of government nor an act of sovereignty. But because it is not an act of sovereignty it could be restricted to the government.

What has led commentators to regard this restriction as a matter of principle is Rousseau's consistent support for it in several places in his works. The first and most obvious example is the Letters where Rousseau agrees with Tronchin that democracies would not survive if all of the citizens were free to propose new laws. He makes a similar point in the Epistle Dedicatory to the second Discourse when, outlining the features of his preferred regime, he says: “in order to forestall the self-seeking and ill-conceived projects and the dangerous innovations which finally ruined the Athenians, I should have wished that not everyone have the power to propose new Laws according to his fancy; that this right belong to the Magistrates alone” (DOI, 116–17). These two features of his picture of Geneva, namely, that it is a democracy and that the magistrates should have an exclusive right to legislative innovation, are thus consistent between the two works. The Social Contract, on the other hand, is vaguer on this point. The only passage where Rousseau writes explicitly about limiting the right of legislative initiative is the following: “I could offer quite a few reflections here … on the right of voicing opinions, proposing, dividing, discussing [motions], which the Government always takes great care to allow only to its own members” (SC, IV.1 [7]; emphasis added). Derathé takes this to mean that Rousseau here as elsewhere supports the magistrates’ exclusive right over legislative initiative, whereas Scott reads it as a critique meant to warn against the government's tendency to usurp sovereign power. Scott's reading is far more persuasive given the context of the passage and especially Rousseau's phrasing. At this point in the Social Contract it should have become clear to his readers that whatever rights the government may enjoy it cannot give these to itself or “allow [them] only to its own members.” This restriction was neither dictated by Rousseau's principles nor a necessary part of his institutional thought.

In all three works mentioned here, however, Rousseau was consistent about one thing: once instituted, the state's constitution should be changed as little as possible. In the Epistle Dedicatory, for example, he defends the magistrates’ exclusive right to propose new legislation precisely as a means of preventing innovation. While his principles of political right were radically democratic, his institutional thought appears curiously conservative. In the same work in which he defends the people's right to obey only those laws that they have made themselves, Rousseau also states that “one should never touch an established Government unless it becomes incompatible with the public good” (SC, III.18 [3]). This sentiment is also echoed in the Epistle Dedicatory where Rousseau claims that “it is above all the great antiquity of the Laws that renders them sacred and venerable” (DOI, 117). Lastly, in the Letters he tells the Genevans that their task is no longer to legislate the constitution but to preserve it. One might conclude that Rousseau's institutional conservatism sought to temper democracy. But at least in his reflections on Geneva this is not the case. By emphasizing the people's role as defenders of the constitution what Rousseau sought was not to moderate their legislative power but to make it more vigorous.

Even in the Social Contract Rousseau's institutional conservatism was the direct result of his democratic political principles, not a measure meant to moderate them. It rested on his conviction that laws lose their authority when the people no longer recognizes its will in them. In other words, laws become weak not when they lose their force but when they lose their legitimacy. And they lose their legitimacy when the legislative power no longer exists because the government has usurped it. This means that ancient laws, whenever they are respected, are respected not because citizens feel bound to the will of their ancestors but because they believe that “if the Sovereign had not consistently recognized them as salutary it would have revoked them a thousand times over.”Footnote ⁴² Citizens are most conservative when they recognize the continued existence and vigor of the legislative power: “That is why the laws, far from growing weaker, constantly acquire new force in every well-constituted state … whereas wherever the laws grow weaker as they grow older it is proof that there is no longer any legislative power, and that the State is no longer alive” (SC, III.11 [5]). Consequently, Rousseau likens the legislative power to the heartbeat of the State and asserts: “It is not by new laws that the State subsists, it is by the legislative power” (SC, III.11 [4]). At the same time, since the authority of the laws presupposes the existence of the legislative power, this power cannot be bound by the established constitution, no matter how ancient. So, “while the people that has found [the best constitution] ought to abide by it … [it] is in any case always master to change its laws, even the best of them; for if it pleases it to harm itself, who has the right to prevent it from doing so?” (SC, II.12 [2]). Rousseau's conservatism, then, was the result of his conviction that continuous legal innovation beyond the moment of founding was the sign of the legislative's weakness and the growth of despotic power. His conservatism, or the question of how to preserve the authority of the laws, leads us back to the question of how to preserve the legislative power. The two are part of the same vision, not two opposites meant to balance each other.

I will now attempt to show that Rousseau supported the Genevan government's exclusive right to propose new laws because he thought that in this way the people stood a better chance of preventing the government from weakening the legislative power. It was neither because he diluted his political principles to fit the circumstances of Geneva nor because he sought to temper the Genevan democracy that he did so. Rather it was because he believed that if the people did not attempt to innovate, they made a better safeguard against harmful or dangerous innovations on the part of the government. Because Geneva was a democracy where the people had the final check on legislative power by voting in the assembly, the government would not attempt to extend its power through legal innovation. Rather, it would attempt to do so through administration alone. The danger that democracy faced, in other words, was not that the people did not have a right over legislative innovation. They did have such a right insofar as they could always vote down proposals that did not conform to the general will. The trouble with Geneva was that the people had no control over the administration of the law. Derathé and Putterman are correct when they claim that for Rousseau the people's main role was to act as a final check on legislation. But Derathé’s conclusion that Rousseau was therefore less democratic than his principles allowed does not follow. And Putterman does not notice that in order for the legislative check to be effective the people had to have an effective institutional check on administration, not simply on legislation. Rousseau wanted the people to be conservative precisely because of, not in spite of, the fact that Geneva was a democracy.

The principal characteristic of the Genevan government as Rousseau describes it in the Letters can be summarized in two words: bad faith. This was especially the case in the eighteenth century. The Small Council had persistently and skillfully attempted to weaken the General Council through administration alone. When discussing the events that led to the Mediation, for example, Rousseau suggests clearly that the government had been responsible both for the disturbance and for calling in the foreign powers of Berne, France, and Zurich once it lost control of the situation. He claims that the Small Council had used the pretext of new fortifications as a first step towards imposing a “yoke” upon the citizens because such fortifications would have required a large new garrison inside the city (LEM, 243). It was only their greed, which led them to attack the purse of the people by calling for new taxes, that foiled their plans. He also accuses them of abolishing the regular meetings of the General Council, which had been constitutionally sanctioned, by fraudulent maneuvers:

Moreover, the vote had been manipulated by phrasing the question ambiguously on the voting ballots. In Geneva, the magistrates had innovated not by straightforward legal means but by corrupt administration. As Rousseau emphasizes throughout, the executive power does not have to innovate by “solemn acts” but only by the continuous exercise of power imperceptibly to alter things to its will (LEM, 285).

The fact that Geneva was a small commercial town which could never be self-sufficient favored democracy but also made it difficult to preserve. As Rousseau describes them, Genevans were moderate and orderly—“men truly worthy of liberty,” he states, for even when the state was in their hands in 1738 they did not exact vengeance on certain conspirators who had attempted to crush the bourgeois militias by force. This was not merely rhetorical flourish on Rousseau's part. The Mediation, which passed almost unanimously in the General Council, stipulated that the six men who had been responsible for the conspiracy were to be given back all their rights with the exception of a few having to do with political office. Rousseau praised their moderation not least because he wished to counter the Small Council's arguments that Athenian-style democracy was tumultuous and dangerous. The Genevans, he states, are “naturally serious and cold,” unlike the Athenians “about which they speak to us” (LEM, 251). But without changing his characterization of the Genevans Rousseau soon changed the tone of his description from praise to blame. The Genevans were moderate because they were commercial. They were dependent on the government for their livelihoods because of its ability to manage commercial relations with other states. Moreover, because they were fully taken up with business, the cost of political involvement was always very high for them. It is only “when their own [interest] is being attacked” that they become involved in public affairs (LEM, 293). No sooner had Rousseau praised the moderation of the bourgeoisie in 1738 than he reminds his readers that “in any other country the People would have begun by massacring these conspirators and pillaging their houses” (LEM, 294). The bourgeoisie may be moderate, therefore, but this moderation is due as much to its virtue as to those sociological circumstances that make it easy for the government to weaken the legislative power. In contrast to the average Genevan citizen the magistrates had greater leisure because the business of the town was not very great. At the same time, since the government always acts it is the only body in the state that manages to preserve its esprit de corps. By itself this fact is sufficient to give it an advantage over the sovereign which it then uses to splinter the public further. For example, in 1725 the bourgeoisie had had an opportunity to reassert its right over taxation when the term of the old fortification taxes had expired. “But with the plague at Marseille and with the Royal Bank having disturbed commerce, each, occupied with the dangers to his fortune, forgets those to his liberty. The [Small] Council, which does not forget its intentions, renews the taxes in the Two-Hundred, without its being a question of the general Council” (LEM, 294; emphasis added). The greatest threat to Genevan democracy, according to Rousseau, was the growing weakness of the legislative power due to the fact that the Genevan citizenry was commercial. He worried not that Genevan democracy needed to be moderated but that it needed to be revived.

It is misleading to suggest, then, that Rousseau adopted a far too conservative stance in the Letters to be compatible with his principles in the Social Contract. It is also misleading to suggest that by restricting the people's right to legislative innovation he was limiting the sovereign power in a way that was incompatible with those principles. In the Seventh Letter Rousseau explicitly claims that all restrictions on the sovereign are absurd and illegitimate. Though the Mediation had granted the General Council many rights which had been previously usurped by the Small Council, its very act of defining the General Council's rights had been misguided. It suggested that the constitution was more authoritative than the General Council. But since the constitution was authoritative only because it had been approved by the General Council, one had to conclude that the latter was “not an order in the State, [but] … the State itself” (LEM, 246). If his purpose in the Letters had been to “wrest as much power as possible from the Petit Conseil” by meeting its doctrines halfway, one would expect that his comments on the question of sovereignty should have been far more conciliatory.Footnote ⁴³ But they are uncompromising. By characterizing the General Council as “the living and fundamental Law that gives life to all the rest” Rousseau was effectively saying that this body was free to change the constitution if it so wished (LEM, 246). Anyone remotely familiar with the Social Contract could not fail to draw this conclusion. To make things even more explicit Rousseau also states in the Letters that the government's rights are derived from the constitution but the same cannot be said of the sovereign. Even though the government possessed an exclusive right to legislative innovation, therefore, this right was legitimate only if the sovereign remained free to revoke it. Certainly here as in the Social Contract Rousseau counsels the bourgeoisie not to change the constitution. But it is clear that he could not have denied the General Council's right to do so.

So why did Rousseau wish to create a constitutionally conservative bourgeoisie? It seems that the more compelling, albeit paradoxical, reason is as follows. Precisely because he did not trust the government's faith with respect to the legislative power, he regarded the people as the ultimate depository of the constitution—that body of laws which specified the government's rights. If the people's role in the state was primarily that of preserving the constitution, rather than innovating, it stood a better chance of preserving the legislative power and its ability to check the executive. At Geneva, harmful legal innovation had always been preceded by improper execution of the existing laws of the state—that is, by corrupt administration. It had to be so preceded because the General Council had the final check on new legislation. As things stood this check was ineffective because the bourgeoisie lacked the equally essential capacity to check the administration of the existing laws. Paradoxically, by keeping the bourgeoisie from innovating Rousseau attempted to ensure that the General Council would remain free to change the constitution. His chief concern was that the General Council would be reduced to a mere rubber stamp of the government's proposals. Far from wishing to prevent innovation, therefore, what Rousseau wanted was to guarantee that such innovation would benefit rather than harm the public.Footnote ⁴⁴

Conclusion: Extending the Argument beyond the Letters

The analysis presented here is admittedly restricted to the Letters from the Mountain, and to one case in particular—Geneva. While it is beyond the scope of this paper to examine the whole of Rousseau's political thought, it may prove helpful to consider along what lines the present argument may be extended by briefly considering the related, but broader, issue of tacit consent.

Scholars who emphasize the overwhelming role that governmental authority plays in Rousseau's ideal state place great emphasis on his admission that the people's direct consultation is not always (or ever) necessary in order to ascertain the general will. After all, Rousseau states in the Social Contract that “direct democracy” is “an impossibility” (SC, III.15 [8]; 3 [9]). He also concedes that “the commands of the chiefs [can] be taken for general wills … [and] the people's consent has to be presumed from universal silence” (SC, II.1; III.11). This same argument is found in the Political Economy (PE, 12).Footnote ⁴⁵ In fact, here Rousseau appears uncharacteristically comfortable with representative government, twice admitting that the people's consent can be ascertained either by direct declaration or by means of representatives (PE, 25, 30). Fralin in particular has placed much emphasis on these passages and evaluated the rest of Rousseau's thought through this lens. Considering such discrepancies, moreover, Masters states: “the practical problem of Rousseau's principles of right could be stated as follows: to what extent is it absolutely necessary, for government to be legitimate, that the laws elaborated by representative institutions be submitted to popular referenda?”Footnote ⁴⁶

Rousseau's answer, I argue, is, first, that even when setting the legislative agenda, magistrates are not acting as representatives; second, that in cases where the law must be changed, it is, ideally, always necessary to consult the sovereign people directly. While there is space in his thought for tacit consent, in the Social Contract the silence of the sovereign can be taken to confer consent only as long as “the sovereign is free to oppose” the government (SC, II.1). This qualification is by no means nominal. The sovereign assembly's freedom is the locus of all controversy regarding the legitimacy of governmental acts, including legislation that presumes tacit consent. It cannot be understood as free merely because the people periodically assembles to elect its governing officials. As Rousseau shows in the Letters, a proper evaluation of the sovereign's liberty is comprehensive, taking into account the letter and spirit of the constitution that defines the government's rights, the practical functioning of its institutions, and the sociopolitical consequences of a society's economic structure.

On this question, moreover, the Social Contract must be taken as authoritative. Drawing on the Political Economy to inform a complete re-evaluation of Rousseau's stance on tacit consent and representative government is methodologically unsound. This work was published seven years before the Social Contract, at a time when Rousseau's political thought was not fully formed. This can be textually established: while in the Social Contract Rousseau compares the legislative power to the heartbeat of the state, in the Political Economy he compares it to a man's head and brain.Footnote ⁴⁷ This shift of analogy aligns with a shift in Rousseau's characterization of the general will: from an “intellectualist” (sometimes called epistemic) notion that allows for representation of sovereignty, to a “procedural” one, whereby the general will becomes a “concrete” or “effective reality” that can only be declared by the sovereign assembly.Footnote ⁴⁸ But one need not dwell too long on the historical issue of whether Rousseau's ideas in the Political Economy are provisional or authoritative. It is clear that the main features of his thought are already present in that work. What is definitive, I think, in excluding its relevance to the question of representation and tacit consent is Rousseau's intended purpose and audience.

The Political Economy was an article written for Diderot's Encyclop é die in which Rousseau addressed current European governments, and his main purpose was to emphasize the importance of just rule. Unlike in the Social Contract, he did not consider transhistorical questions of right or ideal political conditions. Rather, he limited his analysis to persuading actual governments that following the general will was the most effective means of getting themselves obeyed. Note, for example, that when Rousseau accepts the authority of representatives in matters of taxation, he has in mind “the estates of the country,” a clear reference to current arrangements in the monarchies of Europe (PE, 25). Thus, it is not surprising that in this same work he downplays the role of popular assemblies, noting that they are “impractical with a large people” and provide no guarantee that their “decisions would be the expression of the general will” (PE, 12; emphasis added). Lacking a comprehensive treatment of popular sovereignty and its practical implementation, Rousseau may have been wary of the possibility that large (and chaotic) national assemblies would be used merely as rubber stamps for illegitimate governmental decisions.

Readers will note that even in this work, often taken to demonstrate Rousseau's endorsement of an executive called upon to “mold and manipulate the people,”Footnote ⁴⁹ he encourages governments to “leave [the citizens] a large enough share of the public administration to feel they are at home.” This line occurs in the same passage in which Rousseau urges statesmen to “extend [their dominion] over wills” and “disguise their power to make it less odious” (PE, 19). While he thus acknowledges that the executive will certainly rule in the state, it is by no means clear that such rule ought to be understood as manipulative. Recognizing that his audience is chiefly concerned with dominion, Rousseau attempts to persuade it that genuine obedience is rooted not in fear of punishment but in love of the laws. It must be remembered that the laws include the executive's subordination to the legislative, as Rousseau is careful to remind readers at the very beginning of the passage in question: “the government is not the master of the law.” There is, therefore, no “massive contradiction” in Rousseau's political ideas on the role of the executive.Footnote ⁵⁰ In making the laws beloved the government makes beloved its own fundamental subordination to the sovereign citizen body.

Scholars who have attempted to draw out the undemocratic elements of Rousseau's thought are certainly correct to point out that the executive plays an important role in the legislative process. It convenes the sovereign assembly and sometimes sets the legislative agenda. This certainly indicates that Rousseau's thoughts on the separation of powers are more complicated than they appear in the Social Contract, and his vision of democracy goes beyond “peasants deliberating under a tree.” It cannot be said, however, that his practical reflections on the relationship between the legislative and the executive contradict his democratic purpose. His recommendations for reforming the Genevan constitution in the Letters aimed to invigorate a decaying public sphere and subdued sovereign assembly, meant to act both as supreme judge in matters of legal interpretation and final arbiter on all legal innovation.