and the Sovereign Will of the People
Are These Two Principles Irreconcilable?
Comparing Rousseau's Social Contract Theory with © John Fudjack
© John Fudjack
In 1762, in a work entitled 'The Social Contract', Jean Jacques Rousseau posed a problem so significant that it continues to be discussed today, nearly two hundred and forty years later:
The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before. 1
Rousseau was apparently looking for a form of social organization that ensures individual autonomy while simultaneously promoting a socially cohesive community. As Andrew Dinkelaker's more recent (1997) work makes clear, the only form of social organization that can reasonably be said to lay claim to both of these as essential objectives is the one founded on the principle of consensus decision-making: participatory democracy. 2
In the pages following the sentence quoted above, however, it is not the methods associated with participatory democracy that Rousseau offers as a solution to the problem that he has posed. He argues, instead, that it is his 'social contract' theory that provides the key.
In this paper I hope to show why Rousseau's argument is ultimately rather unconvincing, and why what Dinkelaker has to say on the subject comes closer to the truth.
Rousseau argues that there are some things that belong to the individual that [s]he cannot legitimately hand over to others, even if [s]he voluntarily chooses to do so. The 'inalienable rights' of the individual are items of this sort, amongst which the right to self-determination figures prominently.
The individual cannot, in other words, legitimately choose to forgo his or her personal freedom or liberty, according to Rousseau - an act that he simply refers to as 'alienation'. Rousseau furthermore argues that ...
Even if a man could alienate himself, he could not alienate his children: they are born men [sic] and free; their liberty belongs to them, and no one but they has the right to dispose of it. Before they come to years of discretion, the father can, in their name, lay down conditions for their preservation and well-being, but he cannot give them irrevocably and without conditions: such a gift is contrary to the ends of nature, and exceeds the rights of paternity. It would therefore be necessary, in order to legitimize an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary. To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. ... Such a renunciation is incompatible with man's nature; to remove all liberty from his acts is to remove all morality from his acts. 3
But whereas an individual cannot, with any legitimacy, alienate himself to another - to a king, for instance - that individual can alienate himself, according to Rousseau, to the community as a whole, the 'people'. And the people can in turn, Rousseau leads us to believe, 'give itself to a king' if it so pleases.
With this strategy Rousseau introduces a very dangerous sleight of hand into the otherwise sensible argument that he offers on the relationship between the individual and society. Rights that Rousseau presents, in the first instance, as absolutely 'inalienable' (i.e., untransferable), are made to appear, on second thought, not to count for much at all in the face of the conflicting demands that he presumes will necessarily be made on the individual by the 'sovereign will of the people'. A remarkable shift suddenly seems to occur in the value he places on the rights of individuals. They are demoted, subsumed under a seemingly more important contravening principle - the sovereign will of the people. And yet he also somehow feels comfortable in continuing to refer to them as 'inalienable'.
This bizarre little peculiarity in Rousseau's thinking hides a weak point in his argument, as I hope to show below, on the basis of which his conclusion can ultimately be discounted. His argument must nevertheless be recognized as a particularly pernicious move, historically speaking. For in the intervening years since 1762 it has provided those who would seek to coerce and enslave others with what they desire and need most - the mantle of legitimacy. Rousseau, in effect, offers a theoretical loophole by which the 'alienation' of individuals can presumably be justified.
It is helpful, in order to be as clear as possible about where the critical sleight of hand occurs, to separate Rousseau's argument into it's distinct steps. With that purpose in mind, I lay it out in the following way:
To summarize: (1) the individual can legitimately alienate him or herself; but (2) only to the 'Sovereign', the people or 'community as a whole', and not to any individual person; although (3) the will of another individual, insofar as that person agrees with specific points of the general will, can 'pass for' the general will - and that individual can (4) therefore be considered a legitimate 'ruler'.
This argument is vulnerable, it seems to me, at several points. But instead of focusing now on these details, and immersing the reader in complex objections and counter-arguments, I'd like first to orient her/him by providing a summary of what I consider a valid alternative to Rousseau's position. It is the one provided by Andrew Dinkelaker. His argument, if I understand it correctly, can be summarized in the following way - which is numbered in such a fashion as to correspond to the above schemata and bring into relief the points at which it contrasts with Rousseau's view:
(1) The rights of the individual are indeed 'inalienable' - the individual's autonomy cannot legitimately be alienated, under any circumstances. This, however, does not contradict the proposition that (2) the community as a whole can exhibit and legitimately act on the basis of a 'general will', created from the combined perspectives of its individual members. But it can do so only insofar as it is capable of arriving at a statement of intent that receives unanimous consent, generated through consensus decision-making processes. Hence, although (3) some individual might be legitimately delegated by the community to enact its general will, in behalf of the people, (4) no individual (or group of individuals) can be considered a legitimate 'ruler' (or rulers), if by the term 'ruler' we mean to imply a relationship in which the ruler usurps control over the individual by abrogating his or her autonomy.
The perspectives represented by Rousseau and Dinkelaker are indeed very similar in many respects. They both express a desire to reconcile the individual and society; they both argue in support of 'inalienable' individual rights; and they both hold in high regard democratic forms of organization, ones that by their very nature enhance individual participation and social cohesion. Yet the two authors differ in one very important respect. Whereas Rousseau's 'social contract' theory
seeks to legitimize certain forms of 'alienation' of individual rights, giving the body politic, in Rousseau's words, 'absolute power over all its members', Dinkelaker's concept of a 'quadrant four' type of organization - a participatory democracy that is structured in such a way as to seek to simultaneously optimize individual autonomy and social cohesion, by utilizing consensus decision-making process - does not.
Norman L. Torrey, the editor of a contemporary book on modern democracy and the french philosophers of the enlightenment period, comments on the apparent contradiction that he finds in Rousseau's personality:
An ardent individualist in his other writings, [Rousseau] reveals himself in The Social Contract as a no less thoroughgoing collectivist. A fundamental clause of the contract: 'the total abandonment of each associate of all his rights to the community as a whole,' sounds a note of absolutism or totalitarianism. 9
Rousseau's attraction to the principle of individual autonomy can, in theory, ultimately be reconciled with the penchant he displays for forms of social organization that promote community - but only in the way Dinkelaker's work suggests possible. Interestingly, Rousseau's social contract theory does not in fact effect such a reconciliation.
Rousseau's Proposed Solution: alienating the inalienable.
Rousseau tries to solve the stated problem by associating each of the two apparently competing values (individual autonomy and social cohesion) with distinctly different stages of development and/or levels of description:
Although these are two different strategies that do not logically entail each other, they are strategies that can, of course, be used in conjuction with each other - so that each lends support to the other, in a supplementary or complementary fashion. This is, in fact, the approach that Rousseau takes. Individual autonomy is valued, but in a way that conceives of it as associated with an earlier stage of development - a stage in which 'nature' is the dominant force and provides the highest frame of reference available. The rights of the individual are hence conceived as natural rights. They are 'inalienable', at this stage, according to Rousseau, and cannot be denied, abrogated, or legitimately transferred from one individual to another.
But for Rousseau this is not the end of the story - as individuals can transcend the purely 'natural' state. They are endowed with free will and reason, and as a result can choose to join together in rational communities that operate according to a 'social contract' that each individual voluntarily enters into and abides by. The social entity that individuals create in this way may be conceived as a larger body, a greater 'whole' in which the individual participates as a mere 'part'.
For reasons that are not clearly articulated by Rousseau, but probably result from a tacit belief that the social contract that he describes is the hallmark of an evolutionary advance over earlier stages of social organization, the 'rights' of this new entity, which he calls 'the sovereign', trump the rights of the individual. Rousseau gives no justification - not one that I can find, in any case - for valuing the rights of the community above the rights of the individual.
He does, however, try to make his presentation more convincing by anthropomorphizing the larger whole. He conceives of it as like an individual human being in certain significant respects. Interestingly, this tactic paves the way for thinking of the larger whole, the community, as itself a sort of 'person', with its own rights and responsibilities, comparable to the rights and responsibilities of actual human beings - an entity that may indeed even have its own 'personality', according to Rousseau. 10
In retrospect it is easy to see how this notion - which since Rousseau's time has worked its way into our legal system, where it is used to justify treating the modern corporation as a 'person' with inalienable 'rights' of its own - has become a particularly pernicious concept. 11
Although for Rousseau there are, as mentioned above, distinct limits to the manner in which individual rights can be alienated in deference to the rights of the community as a whole - he, in effect, throws the baby out with the bathwater when he permits the principle of the sovereignty of the people to simply trump the principle of individual rights.
This is because once one has made this intellectual move, the rights of the individual can simply no longer be considered 'inalienable'. If there is but one case in which the rights of the individual can be legitimately alienated - even if only in favor of a larger whole (as opposed to some other individual human being) - this opens the door for other situations in which individual rights can be alienated. And, I'd argue, that that's exactly what has happened historically since the time of Rouusseau. Individual rights are abrogated or attentuated all the time, in favor of this or that group - on any occasion, in fact, in which it is thought that some subset of a group, by virtue of its 'majority' status, can legitimately prevail over the 'minority', despite their dissent.
The Alternative: bringing the concept of 'general will' into harmony with the notion of 'individual rights'.
Must all attempts to reconcile the two seemingly conflicting interests - the interest of the individual and the interest of society at large - fail? If not, how then do we reconcile them? Not by making adjustments to the principle of individual autonomy, I'd argue, but by making adjustments to the method by which we come to understand what the 'general will' of the people is in the first place. This can be accomplished by operationalizing the rather abstract concept of the 'general will' in a very particular way. One must understand the 'general will' in terms of the 'consensus decision-making' processes by which such a will comes into being. Doing this, one takes a position similar to Dinkelaker's, and from this perspective it becomes obvious that what is glaringly absent in Rousseau's thinking is any clear idea of the processes by which groups actually forge consensus.
Dinkelaker argues, in contrast to Rousseau, that the only time the 'will' of a 'collective body' can be exercized without offending the principle of the moral autonomy of the individual is when each member explicitly consents to the action willed by the body as a whole. Interestingly, Rousseau would agree that there is at least one 'law' which needs such 'unanimous consent' - the 'social contract' itself.12 Otherwise, however, he does not appear to be particularly interested in unanimous consent, or the processes whereby it can be reached.
How then is the 'will' of the people, in Rousseau's understanding of it, to be articulated? We are presumably to use a system in which, according to Rousseau, "each man, in giving his vote, states his opinion on that point; and the general will is found by counting votes." This is one way of making the concept of 'will of the people' operational. But is it the only way, or the best?
First, we have the problem of how the vote will be tallied and interpreted - in what sense does a mere vote, a ballot, constitute an 'opinion'? Or is Rousseau suggesting that we permit some kind of more elaborate voting method, in which the individual somehow actually states his opinion, in a more explicit fashion, in addition to casting his vote? If so, what procedure[s] shall we use to weigh the value or worth of the multitude of various opinions in relation to each other? How are opinions combined? Is care taken to synthesize or blend them in some way - and, if so, according to what principles? When contradictory opinions are expressed do these cancel each other out, or are they combined in some other way?
Or are the votes simply counted? If so, how? According to some essentially binary counting process? Are we to divide the votes, for instance, up into 'for' and 'against' piles? 13 One pile for 'Bush', the other for 'Gore'? If this is the method that we must use to determine the 'will of the people', significant problems inevitably arise. The primary difficulty with this method resides not in deciding which individual the voter intended to vote for (although that, too, may - as we've recently seen - on occasion pose problems) or in ensuring that all votes are counted (a recentMIT study shows that 6 million votes were not counted in the U.S. presidential election in 2000). The difficulty, rather, is to be found in how the result of such an election - even if all the ballots are counted, and counted accurately - is to be interpreted.
For the binary method (especially when it is intended to be used in combination with a 'winner take all' mentality) reduces the 'will of the people', the 'sovereignty', to an inarticulate beast with two options with respect to whatever proposition is put before it - to grunt 'yes' or grunt 'no'.
Under what circumstances could such a grunt warrant being called 'the will of the people'?
Only in the context of an articulate exchange of ideas - an open-forum discussion or debate on relevant issues - can any group decision-making process be said to reflect the 'will of the people'. And the decision-making methodology that reflects the will of the people best, because it incorporates sophisticated dialogic methods that process the input of individuals in such a way as to forge a statement of collective intent as output, is the methodology known as 'consensus decision-making'.
And yet, in trying to articulate the concept of 'will of the people', Rousseau downplays the importance of even trying to reconcile the general will of the group with the particular wills of individuals:
There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but that takes away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences. (153)
This distinction notwithstanding, we must never forget that there is a very significant difference between A) subjugating one's will to the 'will of the group' (i.e., 'standing aside' and permitting the group to act in a way that one is not in agreement with) and B) believing that others (manifesting as a majority, a plurality, or even simply as a 'representative' that one has elected) have the right to establish their will (individually, or in composite form, as a group) on individuals who disagree with them, by virtue of some presumed 'contract' that one has tacitly, or even overtly, entered into with a group. It is the difference, in short, between going ahead with a group decision despite dissent, on the one hand, and attempting to gloss over the individual's right to dissent by invoking a principle that would render that right null and void, on the other.
To put it simply, there is no 'contract' that one can enter into that could legitimize the group in usurping the decision-making role of the individual, and thus appropriating his or her 'right' to decide - regardless of whether individual[s] believe in such a contract or voluntarily choose to hand over their rights. These rights are not transferable in the manner that Rousseau suggests, primarily because the right to choose carries with it a moral responsibility for the choice that is made. This is a responsibility that cannot be delegated to those to whom decision-making power is presumably transferred in the course of an individual's attempt to voluntarily 'alienate' him or herself.
Rousseau does not really offer any justification for the heirarchy of values that is implicit in his theory, the heirarchy which puts the 'right' of the community above the rights and autonomy of the individual. In failing to come up with such a justification he fails - I would argue - to establish, on good grounds, the legitimacy of social systems built on the presumption of such a heirarchy of values.
Yet, although he does not offer a good and compelling argument for believing that the 'rights' of the community as a whole should have priority over the autonomy or 'liberty' of the individual, his view in this matter probably does, at this point in time, accurately reflect the opinion of many people - people who in fact do believe that society has the right to overrule decisions made by individuals.
Groups can, of course, subjugate individuals to rules that they have not consented to. It happens. But is it legitimate to do so? - that is the question that we must never fail to ask. And if we should come to believe the answer to be 'yes', we must remember to ask precisely what is meant by the word 'legitimate'. I'd argue that at best there may be something that we might want to call 'de facto' legitimacy: in which the authority of the group is perceived as legitimate - that is, people believe it to be so. We must distinguish between this and what could be called 'de jure' legitimacy - in which the legitimacy is logically founded on some more fundamental principle, with which a 'reasonable' person could not disagree.
The only way to establish that the community's claim to de jure legitimacy is valid is by assuming a definition of 'community' that understands it as comprised of a body of individuals that is, at that point in time, in unanimous consent.
This is equivalent to saying that the fundamental principle in all of this - the principle on which the legitimacy of the actions of the group is founded - is the moral principle that states that individuals must not coerce others, must not use their power to force others to do what they do no want to do. 14 This principle will, of course, set moral limits on our actions - whether we act as individuals, or 'in the name' of a particular community or group which claims 'sovereignty'.
There is no ethical way to get around the principle of noncoercion, in my opinion, Rousseau's 'social contract theory' notwithstanding. And so, if the rights of the individual are to be reconciled with the 'will' of the people, we will be required to find ways for bringing the will of the people into line with the autonomy of individual human beings. And participatory democracy is the only form of social organization that presents us with real opportunities for doing this.
1. J.J. Rousseau, 'The Social Contract' (1762), in Les Philosophes: The French Philosophers of the Enlightenment and Modern Democracy, ed. by Norman L. Torrey (N.Y.: 1960, Perigee Books) page 149.
2. For the purpose of classifying forms of social organization, Dinkelaker maps
them onto a two-axis coordinate system that divides space into four quadrants, as follows:
1. J.J. Rousseau, 'The Social Contract' (1762), in Les Philosophes: The French Philosophers of the Enlightenment and Modern Democracy, ed. by Norman L. Torrey (N.Y.: 1960, Perigee Books) page 149.
2. For the purpose of classifying forms of social organization, Dinkelaker maps them onto a two-axis coordinate system that divides space into four quadrants, as follows:
He argues that participatory democracies, which are designed to simultaneously optimize the 'autonomy' of the individual and the 'interdependence' of individuals, belong in quadrant
four. See The New Frontier in Democratic Theory and Practice: Organizational Forms that Simultaneously Optimize Autonomy & Community, http://quadrant4.org/thesis/table.html.
3. Torrey, p. 147
4. Rousseau reveals that it is his purpose in writing 'The Social Contract' to make explicit the grounds on which a State can accurately be called 'legitimate'. He is interested, in other words, in how governments justify the abrogation of individual freedoms:
Man was born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they. How did this change come about? I do not know. What can make it legitimate? That question I think I can answer. (p. 144)back to text
5. Rousseau defines 'Sovereignty' in the following way:
If the State is a moral person whose life is in the union of its members, and if the most important of its cares is the care for its own preservation, it must have a universal and compelling force, in order to move and dispose each part as may be most advantageous to the whole. As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power which, under the direction of the general will, bears, as I have said, the name of the Sovereignty. (p. 153)
And also in this way:
At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains voters, and receiving from this act its unity, its common identity, its life, and its will. This public person, so formed by the union of all personalty, formerly took the name of city, and now takes that of republic or body politic; it is called by its members state when passive, sovereign when active, and power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the soveriegn power, and subjects, as being under the laws of the State. But these terms are often confused and taken for one another: it is enough to know how to distinguish them when they are being used with precision.back to text
6. "Sovereignty, being nothing less than the exercise of the general will, can never be alienated..."
When individuals alienate themselves to a community which, in turn, gives itself to a king, it is not the will of the king, as an individual, that they thereby legitimize, according to Rousseau:
I hold then that Sovereignty [by which he means 'the people'], being nothing less than the exercise of the general will, can never be alienated, and that the Sovereign, who is no less than a collective being, cannot be represented except by himself: the power indeed may be transmitted, but not the will.
There are, in Rousseau's view, additional limits to the the extent to which the people may, in giving their consent, 'alienate' themselves. They may not, for example, give wholesale consent to an action before the nature of the action is specified: they may not, in other words, say, 'What he [the king] wills tomorrow, I too shall will'.
As long as every individual, in the course of entering the social contract, totally alienates him or herself in the manner that Rousseau is suggesting - totally hands over his freedom and right to decide to the community as a whole - the will of no particular individual can lay claim to a privileged position with respect to the group. Hence, 'each man, in giving himself to all, gives himself to nobody.'
If then we discard from the social compact what is not of its essence, we shall find that it reduces itself to the following terms: 'each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole'.back to text
7. Rousseau, p. 152.
8. Rousseau, p. 152
9. Rousseau, p. 143
10. Rousseau, p. 150
11. The following passage by Noam Chomsky supplies us with some of the historical detail explaining how corporations came to be viewed as 'persons' with legal 'rights':
When Madison spoke of 'rights of persons,' he meant humans. But the growth of the industrial economy, and the rise of corporate forms of economic enterprise, led to a completely new meaning of the term. In a current official document, "'Person' is broadly defined to include any individual, branch, partnership, associated group, association, estate, trust, corporation or other organization (whether or not organized under the laws of any State), or any government entity," a concept that doubtless would have shocked Madison and others with intellectual roots in the Enlightenment and classical liberalism -- pre-capitalist, and anti-capitalist in spirit.
In Corporation Nation (2000) Charles Derber supplies further detail:
...it took explicit court action in the Guilded Age to move from the idea of the corporation as a natural entity to the view that it was a legal person with constitutionally protected rights. The pivotal decision was the Supreme Court's 1886 Santa Clara case, which declared that the corporation should be considered a person entitled to the due process rights guaranteed to all persons by the Fourteenth Amendment. For the first time, individuals were being unambiguously instructed by the Court that their own liberties were intertwined with those of corporations -- and that taking away corporate rights was equivalent to challenging their own constitutionally guaranteed rights. (p.129)
In a later chapter, Derber charts the course that this trend promises to take in the near future, if permitted to do so:
MAI [the 'Multilateral Agreement on Investments' proposed in recent years] would put in place a legal infrastructure that would shift sovereignty from nations and democratically elected officials to corporate and legal specialists unaccountable to any democratic process. MAI has the potential to undermine any nation's ability to govern itself, and gives ordinary citizens no way to affect the global rules of the game.
back to text
12. There is, in Rousseau's view, only one occasion on which unanimous consent is necessary. And, ironically, it presumably leads to a situation in which further unanimous consent is rendered unnecessary:
... There is but one law which, from its nature, needs unanimous consent. This is the social compact; for civil association is the most voluntary of all acts. Every man being born free and his own master, no one, under any pretext whatsoever, can make any man subject without his consent. To decide that the son of a slave is born a slave is to decide that he is not born a man. ... Apart from this primitive contract, the vote of the majority always binds all the rest. This follows from the contract itself.
So when the individual decides to participate in the 'contract', he or she thereby gives 'his consent to all the laws, including those which are passed in spite of his opposition, and even those which punish him when he dares break any of them.'
A very clever argument, but one that is not very convincing. For by calling an individual right inalienable we thereby insist on the fact that there is no circumstance in which the individual is justified in consenting to any act by which he or she alienates that right, let alone one in which all others simultaneously do the same.
Just as two wrongs don't necessarily make a right,
as they say, unanimous or universal
alienation does not make individual alienation
13. Kantian scholar Robert Paul Wolff has demonstrated, in a mathematically rigorous fashion, that majority rule suffers from innate inconsistency. A group with members who are each presumed to have an unchanging slate of preferences are asked to vote in accordance with these preferences on a series of proposals that eliminates options one at a time. Each vote is decided according to 'majority rule'. Depending upon which options are first pitted against each other in this series of votes, different final results can be obtained.
Wolff's exercise shows that the principle of majority rule,
by itself, does not suffice to ensure a consistent outcome - and, thus,
that the results in a majority-rule vote can be finagled, by deft
election handlers. Some additional principle, or methodological constraints, must,
at the very least, be imposed on the process if consistent results are to achieved.
I cite this for the purpose of showing that even in the case of what seems at first
glance to be a simple up-or-down majority-rule vote, things are not always as uncomplicated, or clear, as they might at first seem. (See Robert Paul Wolff's In
Defense of Anarchism)
14. This is the moral principle on which the socio-political philosophies and
practices of some anarchists are founded. Many amongst this group give Kant credit
for having been the one to first articulate this principle, and the first to
provide a cogent argument in behalf of it. Dinkelaker's thesis seems to me to fit
squarely within this tradition.