The Law According to Rousseau

Laws and the General Will

In Rouseau's republic, the people are the soveriegns. We make our own laws and we must obey them.  The question is, how do we agree what laws to make? For Rousseau, the answer was the "general will" or the greater opinion. The general will is the will of all the individuals which is directed toward a particular interest. It is determined by voting and majority interests. I suppose the problem with Rousseau's idea would be whether it can protect the views of minorities.

"In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less that that he will be forced to be free; for this is the condition which, by giving each citizen to his country, secures him against all personal dependence."

But how can a citizen be free (have liberty) if he does something contrary to the general will? Rouseau says that "the question is wrongly put. The citizen gives his consent to all the laws, including those which are passed in spite of his opposition..." Therefore his freedom is having the ability to express his opinion and views along with others, but everyone needs to follow the general will.

"The general will is always right, but the judgment which guides it is not always enlightened...The individuals see the good they reject; the public wills the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their wills into conformity with reason; the latter must be taught to know what it wills."

Who makes the first laws? The constitution?

Rousseau says that laws are "acts of the general will", therefore everyone makes the laws and everyone is subject to them. However, before there are laws and a constitution we need people of supreme character to write laws that they are not subject to or have the authority to write - like our Founding Fathers. Rousseau calls these people "legislatures".

"Thus in the task of legistlation we find together two things which appear to be incompatible: an enterprise too difficult for human powers, and, for its execution, an authority that is no authority.

Who can be one of the legendary lawsgivers from history? Who has the gravatis to be a Lycurgus (Sparta), Numa Pompilius (Rome) or Solon (Athens) ? Luckily we were able to find men like that in revolutionary America.

For legislators, religion can be useful tool for having your laws accepted by the masses. Rousseau quotes Machiavelli saying, "In truth, there has never been, in any country, an extraordinary legislature who has not had recourse to God; for otherwise his laws would not have been accepted: there are, in fact, many useful truths of which a wise man may have knowledge without their having in themselves such clear reasons for their being so as to be able to convince others:" (Discourses on Livy)

Of course using religion as a tool to promote your agenda is duplicitous and "Machiavellian", but it may be necessary for the "lawgiver" of a new country. Certainly invoking the name of "God" was important to our Founding Fathers as they laid the foundations of our government, even though many of them were quite apathetic towards religion.