The Social Contract

sovereignty is also indivisible, representing the complete collective will and never a partial will. Monarchists argue that executive actions taken by kings without the sanction of the collective—like declaring war and making treaties—constitute sovereignty. Rousseau disagrees, arguing that these are mere applications of the law and not law itself; therefore, they are not acts of sovereignty. 

Rousseau argues that the general will is “always right and tends to the public advantage” (32). That said, the people may be deceived as to what is in their best interest, leading to poor decisions. This is especially true when factions form, causing each faction to mistake its particular will for the general will. Factions cannot form if the state hopes to survive; instead, everyone must think for themselves so the general will may be accurately expressed.

Although the social contract gives the sovereign body politic absolute power over its members in matters pertaining to the general will, sovereignty cannot impose any restrictions or demand any resources from citizens that aren’t necessary for the good of the community. It also cannot ask for more from one citizen than another. Finally, sovereignty may not intervene in private disputes that do not involve the general will.

Rousseau addresses the issue of the death penalty. Some argue that because taking one’s own life or the life of another is not a natural right, this right cannot be transferred to the sovereign. However, Rousseau supports the death penalty, so he counters that a violation of the state’s laws is a violation of the social contract, which exists to provide for the preservation of the citizen and the state alike. If a breaks the social contract, they relinquish the right to preservation offered by the state. In a pithy aside, Rousseau cuts his discussion of crime and punishment short, writing, “But I feel my heart protesting and restraining my pen; let us leave these questions to the just man who has never offended” (35).

Having organized the state via the social contract, Rousseau proceeds to the matter of ensuring its preservation through laws. While God’s justice is supreme, humans are too flawed to be trusted to follow it without fail. This is also true of justice rooted in reason. Thus, justice must be ensured through human laws and conventions.

Laws, Rousseau writes, are expressions of the general will that apply to all a state’s citizens. As they emanate from the general will, they must also be written in general terms, pertaining to subjects and actions in the abstract without referring to individual citizens or groups. For example, he writes: “[A law] may establish a monarchical government and hereditary succession, but it cannot choose a king, or nominate a royal family” (35). Rousseau differentiates laws, which are applied universally, to decrees, which are applied to a specific individual or situation.

Rousseau explains why it is so difficult to formulate laws that express the general will. He asks, “How can a blind multitude, which often does not know what it wills, because it rarely knows what is good for it, carry out for itself so great and difficult an enterprise as a system of legislation?” (36).

To address this challenge, the state needs legislators. Theoretically, the ideal legislator would be some superior being who observes human passions without experiencing them (effectively, a god).

Since that is impossible, Rousseau sets down a few rules for choosing legislators. The legislator should not be a citizen of the state nor one of its rulers. Legislative power must therefore be separate from both sovereignty and the magistracy (or executive branch). There is precedent for this, Rousseau writes. Many Ancient Greek municipalities and some modern Italian republics empowered foreigners to create their laws.

Another challenge involves convincing citizens to follow laws. Over time, sound laws and institutions create socially responsible citizens, but this is not humanity’s natural state of being, particularly not at the time when a new government is established. Without the ability to use force or appeal to reason, legislators often credit divine providence for the wisdom of their laws: “[T]he legislator puts [decisions] into the mouth of the immortals, in order to constrain by divine authority those whom human prudence could not move” (37).  

Laws must be established in accordance with the people’s fitness to receive those laws. Moreover, laws must be made early in a community’s existence, before the citizens’ prejudices and customs are too ingrained to be altered. In some cases, a violent revolution may rock a people out of their habits and complacency, preparing them to receive good laws even late in the state’s existence. However, this can only happen once to a people. A state which finds itself roiled by multiple revolutionary spasms requires “a master, not a liberator. [...] Liberty may be gained, but can never be recovered” (38).

To receive good laws, a state must neither be too big nor too small. In a state that is too large, the administration of laws across long distances will be nearly impossible without a large bureaucracy, which saps energy and resources. Moreover, large states encompass many regions, each with diverse social and geographic qualities, making it difficult to write laws that make sense for everybody. In turn, a state that is too small will be ill-equipped to protect itself from its neighbors.

In an ideal state, there must also be a balance between the size of its territory and the size of its population. With too much land and not enough people, the state produces more than it needs, putting it constantly on the defensive against foreign threats. With too many people and not enough land, the state grows dependent on other states, often leading it to invade and seek to conquer its neighbors.

Rousseau describes other qualities which make a people amenable to good laws and governance. They should already be bound in some way by shared origin or interest; they should not be dependent on neighboring states, nor should neighboring states be dependent on them; and they should already be in a state of relative peace and prosperity, free of war or famine. In short, Rousseau writes, they should unite “the consistency of an ancient people with the docility of a new one” (40).

The best system of legislation is one that maximizes civil liberty and equality, based on the circumstances of geography, customs, and a people’s temperament. Defining equality, Rousseau makes it clear that each citizen need not possess identical amounts of power and riches. However, power may only be exercised according to the law, and riches should not be distributed in severely unequal degrees: “[N]o citizen shall ever be wealthy enough to buy another, and none poor enough to be forced to sell himself” (40). To those who argue that achieving equality is unrealistic, Rousseau argues that the very point of legislation is to remedy unfortunate realities like inequality.

According to Rousseau, there are four different types of laws. The first type, and the one which most concerns Rousseau most in this treatise, are “political laws” or “fundamental laws.” These govern the relationship between the body politic and itself, thus dictating the fundamental structure of the state. The second are “civil laws,” which govern how individuals relate to one another or how an individual relates to the state. The third are “criminal laws,” which assign penalties for disobedience to the law. The fourth and final set of laws are more abstract, encompassing the morals, opinions, and customs of a people. Of these laws, Rousseau writes, “This forms the real constitution of the state” (41).