Justice and the General Will: Affirming Rousseau's Ancient Orientation

Justice and the General Will: Affirming Rousseau's Ancient Orientation

Williams, David Lay, 1969-

Journal of the History of Ideas, Volume 66, Number 3, July 2005, pp.383-411 (Article)

Published by University of Pennsylvania PressDOI: 10.1353/jhi.2005.0048

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Justice and the General Will:Affirming Rousseau’s

Ancient Orientation

David Lay Williams

There is much confusion about how to characterize the work of Jean-Jacques Rousseau. His thought has at various times been related to such dis-similar thinkers as Plato and Hobbes. From Plato he is said to have acquiredhis affinities for community and civic virtue. And one does not have to looktoo hard to find his praise for the great sage of the Academy: ‘‘Plato onlypurified the heart of man.’’1 He was often eager to affiliate his ideas with thoseof antiquity. He yearned for modern society to rekindle the flames of a once-great civilization. ‘‘[W]hat keeps us [the moderns] from being men like them[the ancients]? Our prejudices, our base philosophy, and the passions of pettyself-interest, concentrated together with egoism in all hearts by inept institu-tions in which genius never had any share.’’2 Despite his obvious admirationfor the perceived greater ideas of the past, however, Rousseau also expressedsome skepticism. James Miller has suggested that he held Plato’s theory of theForms to be unsustainable.3 Allan Bloom has likewise argued that Rousseau’s‘‘teaching is not . . . a revival of those of Plato. . . . If he admires the practiceof antiquity, he does not accept the theory.’’4

This has led many to argue that Rousseau is best understood as student ofThomas Hobbes. Roger D. Masters, for example, has suggested that ‘‘Rous-seau’s principles of political right can . . . be best described as a reformulation

1 Jean-Jacques Rousseau, Emile or On Education, tr. Allan Bloom (New York, 1979[1762]), 40 [IV: 250]. All Rousseau citations include references to existing translations, ifavailable, and the Pleiade edition volume and page numbers in brackets.

2 Jean-Jacques Rousseau, Considerations on the Government of Poland, in The SocialContract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge, 1997 [1772]),180 [III: 956].

3 James Miller, Rousseau: Dreamer of Democracy (New Haven, 1984), 9.4 Allan Bloom, ‘‘Rousseau,’’ The History of Political Philosophy, 3rd ed., Leo Strauss and

Joseph Cropsey (Chicago, 1987 [1963]), 561.

383Copyright 2005 by Journal of the History of Ideas, Inc.

Derek Young

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384 David Lay Williams

of Hobbes’ conception of the social contract.’’5 Arthur Melzer also argues,‘‘The purpose of the doctrine Rousseau elaborates in the Social Contract isessentially the same [as Hobbes’].’’6 This view is argued on the grounds thatthe General Will is a positive or arbitrary standard, functioning as the primaryprinciple of Rousseau’s constructive political program. Yet the vision of Rous-seau as a Hobbesian or modernist also merits skepticism. While he employsa social contract, as does Hobbes, he explicitly rejects traditional forms ofpositivism. ‘‘What is good and conformable to order is so by the nature ofthings and independently of human conventions.’’7 Whatever one might sayabout such passages, it at least raises the possibility that Rousseau is no mod-ernist in the Straussian sense of defining Justice as human agreement.

Much of what contributes to the conflicting interpretations of Rousseaucan be attributed to different understandings of the relative priority and rela-tionship of two central concepts in his writings. One of these is the well-discussed notion of the General Will. The dominant fashion is to read theGeneral Will as a conventional substitute for natural law or transcendentIdeas. According to this reading, the General Will is grounded on nothingmore than consent and functions as the first principle of all legitimate politicalsocieties. The other term central to Rousseau’s program is the far less dis-cussed but equally important concept of Justice. Little has been written on hisunderstanding of Justice and, for that matter, he himself rarely discussed itexplicitly. But it, too, could also be considered a primary principle. While itwould be foolish to dismiss the importance of the General Will to Rousseau,it would be equally problematic to explore it independently of his Idea ofJustice. The question in understanding his work is which of these two princi-ples—the General Will or Justice—is primary or fundamental. If it is theGeneral Will, a case can be made that the Straussians are right, and Rousseauis a positivist. If Justice is prior, on the other hand, then there is reason tobelieve that he was something much different.

I argue that the positivist reading of Rousseau is flawed. Indeed, my thesisis that he is among the greatest and most thorough Platonists of the modernera.8 His rejection of Hobbes is not merely rhetorical. In fact, it represents the

5 Roger D. Masters, The Political Philosophy of Rousseau (Princeton, 1968), 351.6 Arthur M. Melzer, ‘‘Rousseau’s Moral Realism: Replacing Natural Law with the General

Will,’’ American Political Science Review, 77, No. 3 (1983), 636.7 Jean-Jacques Rousseau, Of the Social Contract, ed. Victor Gourevitch (Cambridge, 1997

[1762]), 66 [III: 378].8 This paper is certainly not the first to argue that Plato is an important figure for Rousseau,

nor is it even the first to argue that Rousseau is a Platonist in some capacity. See Laurence D.Cooper’s insightful, ‘‘Human Nature and the Love of Wisdom: Rousseau’s Hidden (and Modi-fied) Platonism,’’ Journal of Politics, 64:108–25. Cooper argues that Book V of the Emile is amodern response (or perhaps more accurately an endorsement) of the themes treated in BookV of the Republic. Cooper, however, does not explicitly attach this connection to arguments

Justice and the General Will 385

true impetus of his social contract. This contract is designed explicitly tocounter Hobbesian positivism. In the same way that Plato responds to Prota-goras’ positivism with his theory of the Forms, Rousseau responds toHobbes’s brutish Leviathan with a morally grounded social contract.9 To thisextent, he is following in the footsteps of Locke who through his theory ofnatural law also hoped to avoid the problems associated with Hobbes’s posi-tivism. Unlike Locke, however, he appeals to the abstract Idea of Justice,rather than a determinate set of rules. To do this, he necessarily rests upon alater version of Platonic Forms—one that is both transcendent and indetermi-nate.10 He does this, I argue, by placing the idea of Justice prior to the GeneralWill itself. In understanding Rousseau this way, we are able to make newsense of the standards to which the General Will must conform and his fre-quent references to the Idea of Justice.

The Will of All versus the General Will

It is no mystery that the General Will is central to Rousseau’s programof political construction. As Judith Shklar famously remarked, ‘‘it conveyseverything he most wanted to say.’’11 Its appearance is ubiquitous. Its contentis, on the other hand, notoriously vague. One consistent feature found in hisrare attempts to define it, however, is that it is distinct from what he calls thewill of all. The will of all is ‘‘nothing but a sum of particular wills.’’12 Asociety governed by this principle would have to take into account everythingthat participating individuals desire. A pure democracy run according to ma-joritarian principles might be the best example of the will of all. It is purelypositivistic. Its content may include anything the will of the people adds upto, whether that be respect for liberty and equality or principles of tyrannyand genocide. It is contentless. To be certain, if this were the ground uponwhich Rousseau meant to rest his theory, then there is absolutely no doubtthat he would be modern in the Straussian sense of defining Justice according

beyond its chosen text, whereas I mean to suggest that Rousseau’s Platonism is essential forunderstanding the whole of his political program. See also Charles Hendel, Jean-Jacques Rous-seau: Moralist (London,1934), Louis Millet ,’’La Platonisme de Rousseau,’’ Revue de l’enseig-nement philosophique (June–July, 1967), and M. J. Silverthorne, ‘‘Rousseau’s Plato,’’ Studieson Voltaire and the Eighteenth Century, cxvi (1973), 235–249.

9 This analogy is given force by the fact that Rousseau himself labels Hobbes a ‘‘sophist,’’Jean-Jacques Rousseau, ‘‘The State of War,’’ in The Social Contract and Other Later PoliticalWritings, ed. Victor Gourevitch (Cambridge, 1997 [1758]), 165 [III: 612].

10 In making this distinction, I rely significantly on T. K. Seung, Plato Rediscovered:Human Value and Social Order (Lanhan, Md., 1996).

11 Judith N. Shklar, Men and Citizens: A Study of Rousseau’s Social Theory (Cambridge,1969), 184.

12 Social Contract, 60 [III: 371].


to convention. Rousseau, however, explicitly rejects this as a foundation. Be-cause it is informed by private interests, it cannot possibly serve this function.It is almost by its very definition contrary to the General Will: ‘‘One oughtrather to presume that the particular will will often be contrary to the generalwill, for private interest always tends to preferences, and the public interestalways tends to equality.’’13

What then of its counterpart—the General Will? The most famous de-scription of the General Will comes in the Social Contract: ‘‘[I]f, from thesesame [particular] wills, one takes away the pluses and the minuses whichcancel each other out, what is left as the sum of the differences is the generalwill. . . . If when an adequately informed people deliberates, the Citizens hadno communication among themselves, the general will would always resultfrom the large number of small differences, and the deliberation would alwaysbe good.’’14 Several words here require unpacking. First, there are the deliber-ations of ‘‘adequately informed people.’’ This phrase itself needs to be brokendown into two inquiries: (1) what does Rousseau mean by deliberation and(2) what is a people ‘‘adequately informed’’?

It is unfortunate that Rousseau does little explicitly to help us understandthese terms. The idea of deliberation has recently grown in popularity. JurgenHabermas, for example, suggests that politically legitimate decisions can onlybe made in public deliberations under the constraints of the ideal-speech con-ditions. But what does Rousseau say? Rousseau mentions the idea of delibera-tion in Book II of the Social Contract briefly but does not return to thederivation of the General Will again until Book IV. And Rousseau’s idea ofdeliberation is just the opposite from the contemporary version. Rather thanhaving a public forum where individuals might congregate in order to ex-change ideas about public matters, Rousseau has his citizens turn inwards.Thus the derivation of the General Will requires that citizens do not have any‘‘communication among themselves.’’15 Rousseau suggests this because hetells us that the General Will cannot be given to ‘‘partial views.’’ If people areallowed to communicate with one another, they are tempted to succumb tolocal—and hence politically illegitimate—preferences.

What, next, is an adequately informed people? Or, to rephrase the ques-tion, what is a proper personal deliberation? Rousseau warns us that we maywell err in calculating the General Will. ‘‘[I]t does not follow . . . that thepeople’s deliberations are always equally upright. One always wants one’sgood, but one does not always see it: one can never corrupt the people, butone can often cause it to be mistaken, and only when it is, does it appear to

13 Emile, 462–63 [IV: 842].14 Social Contract, 60 [III: 371].15 Ibid., 60 [III: 371].


want what is bad.’’16 The way to avoid this dangerous problem is to will onlywhat is generally good. The people must remove all personal considerationsin their deliberations and consider those things that promote the commongood. ‘‘What these different interests have in common is what forms the socialbond, and if there were not some point on which all interests agree no societycould exist. Now it is solely in terms of this common interest that societyought to be governed.’’17 Rousseau hints that the best way to inform people ofthe common good is through education. Indeed, he identifies as one of theprimary ends of education in Emile that the students learn of Justice andgoodness.18

A further component of the General Will beyond deliberation is agree-ment. The people must come to a consensus on the General Will. About thisfact in Rousseau there can be no debate. It is partially on this basis that manyargue that Rousseau is a Hobbesian. And to be sure, to the extent to which heargues that the General Will requires consent he is surely a modernist. It is anactual agreement between citizens. The idea of consent was clearly a moderninnovation. Following the lead of Hobbes, Locke, and Pufendorf, Rousseaulikewise thought it important that his state be grounded in the agreement ofhis citizens.

Consent, however, can be of two types. One may consent to anything, orone may only consent to a circumscribed set of options. The first is openconsent; the second is constrained consent. A new country drawing up itslaws has open consent. There are no limits as to what its members mightagree. The U.S Congress, on the other hand, is constrained. Congress maylike to consent to grant a title of nobility to Mickey Rooney, for example, butit is prohibited from doing so by Article I, Section 9, of the Constitution.Further, constrained consent may be of two kinds. The constraint can be posi-tive or transcendent. The constraint prohibiting Congress from passing a titleof nobility is positive constraint because that prohibition is recognized in thepositive authority of the U.S. Constitution. Transcendent constraint, on theother hand, is moral and not contingent upon being written or recognized. Theconstraint people place on themselves not to cheat on their taxes even withminimal chances of getting caught could be considered transcendent con-straint.

What, if any, constraint does Rousseau place on the formulation of hisGeneral Will? It is difficult to argue that he places no constraint on the formu-lation of the General Will. As discussed already, he has minimally institutedthe constraints of deliberation and good information on it. Further, he argued

16 Social Contract, 59 [III: 371]).17 Ibid., 57 [III: 368].18 Emile, 235 [IV: 522].


that the will itself must be general. It cannot be directed at any individual orgroup’s private interest. Each one of these constraints is for him both genuineand substantial.

The next question, then, is whether his constraint is either positive ortranscendent. This question is more difficult. There is a great deal of literaturethat suggests that constraints on the General Will must be positive. JohnRawls’ construction of the difference principle, for example, is shaped by thepositive constraints of the veil of ignorance. Likewise, there is a formidablebody of Rousseau scholarship arguing that the constraints of the General Willare purely positive. The most persuasive cases are made by the Straussians—including Masters, Melzer, and Strauss himself—and will receive extensiveattention shortly.

The final possible understanding of the General Will is that it is transcen-dently constrained. Transcendent constraints are inherently controversial be-cause they presuppose the existence of universal and immutable standards.Such standards, argue many, do not exist. Contemporary liberal theoristsargue that they are epistemologically indemonstrable. Many Straussians arguethat whatever we might think about them, they have been more or less deadfor political philosophy since Machiavelli. In any case, central to any concep-tion of universal principles of political morality are the Ideas of Justice andthe Good. As Strauss characterized ancient thought, ‘‘the nature of things andnot convention . . . determines in each case what is just.’’19 If it is the casethat Justice is to Rousseau what it was for the ancients, then one might be ableto say that Justice is prior to the General Will. And if that is the case, wethen must rethink entirely the ontological status of the General Will and itsimplications for his thought.

Transcendent Standards in Rousseau?

Even if Justice were a constraint on the General Will, one could stillpossibly make the claim that this is a positive rather than a transcendent con-straint. For Strauss, the very definition of Justice for modernity is conven-tion,20 but the argument that Rousseau rejects transcendent ideas has an evenlonger pedigree. This section and the next both examine the hypothesis thathe consciously created Justice and the General Will as positive, and not tran-scendent, standards. In examining the following significant positivist inter-preters of Rousseau, I hope to demonstrate that the thesis—while sometimestempting—is inconsistent with Rousseau’s writings and intentions.

One of the earliest substantial arguments against the presence of morality

19 Leo Strauss, Natural Right and History (Chicago, 1965 [1953]), 102.20 Ibid., 187.


of any sort in Rousseau is found in Irving Babbitt’s Rousseau and Romanti-cism. According to Babbitt, there were two modern attacks on universal mo-rality. The first was the new science, stemming from Francis Bacon.According to Babbitt, modern science taught the moral philosophers that weare biologically and mechanistically determined, rather than having a freewill. ‘‘The truths of humanism and religion, being very much bound up withcertain traditional forms, have been rejected along with these forms as obso-lescent prejudice, and the attempt has been made to treat man as entirely thecreature of the natural law.’’21

The second half of the modern assault on morality for Babbitt is Rous-seau’s moral psychology. On Rousseau’s account man is born with the purestof souls. His only inclinations are that of survival and the benevolent disposi-tion of pity. This is natural. The irony in his praising of our natural virtue ofpity, suggests Babbitt, is that it can’t truly be a virtue. Virtue (true moralbehavior) can only be exhibited in acts of moral struggle. One finds in him ‘‘avirtual denial of a struggle between good and evil in the breast of the individ-ual.’’22 We likewise find this lack of struggle in the second half of the SecondDiscourse. Individuals have become socially determined by their corrupt sur-roundings. Their opinions and behavior have become enchained to their envi-ronment, thus denying their free will in a manner analogous to that done bynatural science. In either the idyllic state of nature or the corrupt civil society,however, one thing is common—that man has not consciously chosen hisdispositions or behavior. And without this, there can be no morality.

Babbitt’s argument is a forceful one and has the appeal of placing Rous-seau in the context of an alluringly comprehensive intellectual history. Thisought not to blind us, however, to the philosopher’s own words on free willand morality found in the first half of the Second Discourse. There he de-scribes what he understands to be the difference that sets human beings apartfrom animals. This difference lies in what he calls the ‘‘metaphysical andmoral aspects.’’23 According to Rousseau, an animal is merely a machine, ifonly far more sophisticated than any existing in his day. ‘‘I see in any animalnothing but an ingenious machine to which nature has given senses in orderto wind itself up and, to a point, protect itself.’’24 Man, on the other hand, isperfectly free to deny all impulses of nature. ‘‘Nature alone does everythingin the operations of the Beast, whereas man contributes to his operations in

21 Irving Babbitt, Rousseau and Romanticism (Boston, 1919), 120. ‘‘Natural law’’ in thiscontext meaning natural determinism.

22 Ibid., 120.23 Jean-Jacques Rousseau, Discourse on the Origin and the Foundations of Inequality

Among Men, in The Discourses and Other Early Political Writings, ed. Victor Gourevitch(Cambridge 1997 [1755]), 140 [III: 141].

24 Ibid., 140 [III: 141]


his capacity as a free agent. . . . The beast chooses or rejects on instinct, manby an act of freewill. . . . [M]an often deviates from [instinct] to his owndetriment.’’25 It is our ability to act contrary to our instincts that sets us apartfrom the animals, according to Rousseau, even among the natural savages.

Babbitt might respond that while Rousseau speaks of a man capable ofacting contrary to natural impulses, he nevertheless in practice ignores allvoices other than the voice of nature. This response, however, would contra-dict the second half of the Second Discourse. As Babbitt tells us, civilizedman becomes a creature of his social environment and natural impulses andtalents. The social context allows for natural talents to distinguish individualsfrom the herd. This combined with our naturally generated amour-propreleads us to the radical inequalities that characterize ‘‘civil’’ society. Rousseaugoes on to label this society ‘‘wicked.’’26 One, however, cannot condemn thosewho are incapable of being otherwise. One does not excoriate a dog for beingbrown—it has no choice but to be that color. Likewise, we (theoretically) donot condemn the mentally ill for whatever crimes they commit because theylack the freedom to resist their impulses. Rousseau, on the other hand, con-demns those in civil society who have exploited others to climb to the peakof the social world. In this condemnation is implicit that element of humannature he describes in the first half of the Discourse—that they could haveresisted the temptations of social esteem and been more just in their dealingswith others. This requires the assumption of freedom that Babbitt deniesRousseau. Without this assumption, he is speaking pure nonsense. This is notto make the radical claim that human beings have no social or natural influ-ences. Of course they do. What sets them apart from all other creatures, how-ever, is their capacity to resist these influences. And that Rousseau makesabundantly clear.

Rousseau further tells us that the purpose of the social contract is to trans-form the nature of man from a creature acting largely upon instinct to a moralone.

This transition from the state of nature to the civil state produces amost remarkable change in man by substituting justice for instinct inhis conduct, and endowing his actions with the morality they pre-viously lacked. Only then, when the voice of duty succeeds appetite,does man, who until then had looked only to himself, see himselfforced to act on other principles, and to consult his reason beforelistening to his inclinations.27

25 Ibid., 140 [III: 141]. For similar reasons, Rousseau does not grant moral status to theacts of young children, Emile, 67 [IV: 288].

26 Ibid., 171 [III: 176].27 Social Contract, 53 [III: 364].


To read these words and come to any other conclusion than that Rousseaumeant his social beings to be free for moral behavior is, in the words ofJacques Barzun, ‘‘the imaginings of ignorance.’’28

Babbitt’s attack is against the possibility of there being moral questionsfor Rousseau. Later thinkers, however, accepted that possibility without ac-cepting its necessity. They have done so by rejecting the existence of transcen-dent Ideas in his thought. The earliest significant argument to this effect is inC. E. Vaughan. According to Vaughan, Rousseau sees himself as introducingan important improvement to Locke’s theory. In Locke’s state of nature, thelaws of nature are present and binding, even if they are violated with sufficientfrequency to demand the institution of positive laws. ‘‘Rousseau,’’ Vaughantells us on the other hand, ‘‘is under no such illusion.’’29 He makes no mentionof an operative set of natural laws in his state of nature. His savage meninstead act according to instinct. There can be no moral laws where menlack the capacity to understand them. In this respect, Vaughan’s reasoningresembles Babbitt’s. As Babbitt suggests that we are unaccountable for ourbehavior because we are shaped completely by social and mechanistic forces,Vaughan proposes that we are unaccountable for our behavior because ourminds and social conditions are incompletely developed in the state of natureso as to render moral questions irrelevant. Vaughan, however, pushes his argu-ment one step further. Because there is no capacity to discern moral princi-ples, there are none—neither in the state of nature nor in civil society.Rousseau, he suggests, ‘‘sweeps away the idea of natural Law, root andbranch.’’30 So whereas Babbitt does not address the presence or absence oftranscendent Ideas in Rousseau’s theory, Vaughan does, and his conclusion isthat there are none.31

Insofar as Vaughan is describing the state of nature, there can be littledispute. As Kateb has correctly remarked, ‘‘when applied to a man withoutproperty, the principle of . . . justice is a mockery.’’32 What, however, doesthis suggest about the possible presence of transcendent Ideas in civil society?To be sure, Vaughan’s argument is subject to reasonable criticism. As BernardBosanquet noted in response to Vaughan, ‘‘it is a pity to convey the impres-sion that Rousseau . . . ‘refuted the idea of natural law.’ What he refuted was

28 Jacques Barzun, Classic, Romantic, and Modern (Garden City, NY, 1961 [1943]), 24.29 C. E. Vaughan, ‘‘Introduction,’’ Rousseau: Political Writings (New York: 1962 [1915]),

16.30 Ibid., 16.31 Vaughan’s challenge is taken up effectively by Robert Derathe, who at the end of a long

argument concludes, ‘‘all the efforts of Rousseau tend to result in a political system whichconforms with the idea of natural law.’’ Robert Derathe, Rousseau et la science politique deson temps, 2nd ed. (Paris, 1970), 171.

32 George Kateb, ‘‘Aspects of Rousseau’s Political Thought,’’ Political Science Quarterly,76 (December 1961), 524. See also Shklar, Men and Citizens, 178.


the conception that man in a very early state could be conscious of the Lawof Nature.’’33 The fact that we may not be engaged in a game of chess at themoment does not necessarily mean there is no such thing as rules for the gameof chess. The instant at which we drop everything and begin a game, the rulesapply.34 No one argues that the rules of chess apply to lunch, discussion,traffic, or any other aspect of life. This does not mean, however, that they donot exist. They do, and in the appropriate context they are every bit as applica-ble as they were at any other chess-playing moment in history. Likewise, wemay say that transcendent Ideas are latent in the state of nature—existent butinoperative. The moment, however, an individual claims property and hencefounds civil society, the principle of Justice is called out of its latency. Notcoincidentally, it is immediately after this moment in the Second Discoursethat Rousseau offers his first moral judgment of human behavior.35

While useful, however, this analogy is not a perfect one. There is animportant distinction to be made between the rules of chess and the Idea ofJustice. The rules of chess do not exist before the invention of the game ofchess. The Idea of Justice, on the other hand, may be said ontologically toprecede civil society. Not only this, we might also add that whereas the rulesof chess are determinate, the Idea of Justice is relatively indeterminate. Therules of chess tell one exactly what is permitted and forbidden. The Idea ofJustice is more of a vague impression. N. J. H. Dent tells us, ‘‘Rousseaunowhere gives . . . a general definition of justice.’’36 In this respect, Rousseau’sunderstanding of Justice is very close to Plato’s. As T. K. Seung notes, Plato’sdefinition of Justice in the Republic itself—’’Justice obtains in a cooperativeenterprise, when all the participants do their justly allocated parts and receivetheir justly distributed benefits’’—already presupposes the idea of Justice.Seung rightly argues that such definitions by virtue of their inherent circular-ity presuppose that ‘‘the intuition of Justice is ineliminable in any discourseabout justice.’’37 Rousseau, too, tells us that the idea of Justice is intuitive andindefinable: ‘‘There is in the depths of souls . . . an innate principle of jus-tice.’’38 What distinguishes the chess game from the idea of Justice is that we

33 Bernard Bosanquet, Book Review: ‘‘The Political Writings of Jean-Jacques Rousseau,’’Mind, 25 (1916), 402.

34 One might argue that we could begin a game of ‘‘chess’’ with an entirely different setof rules or perhaps no rules at all. A fair response to this, however, is that any game withsignificantly different rules is a different game. Hockey and soccer are not all that dissimilar toone another by the rules, but the one rule that says hockey must be played on ice is enough totransform it into an entirely different sport from soccer.

35 ‘‘Beware of listening to this imposter,’’ Discourse on the Origin of Inequality, 161 [III:164].

36 N. J. H. Dent, A Rousseau Dictionary (Oxford, 1992), 138.37 Seung, Plato Rediscovered, 221.38 Emile, 289 [IV: 598]. This description of justice is found in the ‘‘Profession of the

Savoyard Vicar,’’ which I, following Cranston, take to be the authentic voice of Rousseau.Maurice Cranston, The Noble Savage: Jean-Jacques Rousseau 1754–1762 (Chicago, 1991),197.


cannot intuit the rules of chess—they are conventions. The idea of Justice forRousseau, however, exists independently of convention.

Vaughan further extends his argument to suggest that ‘‘the meaning of‘natural Law’ necessarily varies from age to age. It stands for nothing morethan the code of morality commonly accepted in a given state of civilisa-tion.’’39 To support this interpretation, Vaughan relies on the Geneva Manu-script. Unfortunately, he does not cite a specific passage, guiding us only tothe vicinity of paragraphs 15–18 of Book I, Chapter ii. It is true that Rousseaudescribes an individual who takes his cues about what is right from his socialand cultural surroundings. It is also true, however, that he does not describethis man in flattering tones. He is describing here the ‘‘average man’’ and whythis man’s normal reasoning process cannot be an adequate source of ourideas about political right. Nowhere does Rousseau suggest that moral or po-litical truths are contingent upon the vicissitudes of historical circumstances.To the contrary, he is warning us against this very type of reasoning. Suchshortsighted visions of moral truth allowed past civilizations to think that ‘‘itwas permissible to rob, plunder, mistreat foreigners, and above all barbarians,to the point of reducing them to slavery.’’40 Far from being an endorsement ofpositivism, Rousseau’s discussion here is meant to be a warning against itsdangers.

We still have not addressed the question of whether or not Rousseau be-lieves there exists transcendent ideas in civil society. We have only so farestablished that his rejection of it in the state of nature does not tell us verymuch, if anything, about its presence or absence in civil society. John H.Noone Jr., however, has taken on this very issue in Rousseau scholarship inhis ‘‘Rousseau’s Theory of Natural Law as Conditional.’’41 Noone rightlydraws our attention to an important and all-too-infrequently neglected passagefrom the Social Contract.

No doubt there is a universal justice emanating from reason alone;but this justice, to be admitted among us has to be reciprocal. Consid-ering things in human terms, the laws of justice are vain among menfor want of natural sanctions; they only bring good to the wicked andevil to the just when he observes them toward everyone while noone observes them toward him. Conventions and laws are thereforenecessary to combine rights with duties and to bring justice back toits object.42

39 Vaughan, Rousseau, 17.40 Jean-Jacques Rousseau, The Geneva Manuscript in The Social Contract and Other Later

Political Writings, ed. Victor Gourevitch (Cambridge, 1997 [1756]), 158 [III: 288].41 John H. Noone Jr., ‘‘Rousseau’s Theory of Natural Law as Conditional,’’ The Journal

of the History of Ideas, 33 (1972), 23–42.42 Social Contract, 66 [III: 378].


Because the Idea of Justice is not ‘‘self-enforcing,’’ as Noone describes, it isnot in effect. This brings to mind the important distinction between the exis-tence of a transcendent Idea and its efficacy. Both the state of nature and civilsociety are questions of efficacy because they are creatures of time and his-tory. The existence of transcendent standards, on the other hand, is neveraffected by historical context. The passage Noone cites reveals Rousseau’sconcern with both the efficacy and existence problems. Once, however, sanc-tions are in place, and compliance can be expected, the laws come into effect.Thus we have the purpose and function of positive law—to bring transcendentIdeas out of their latency and into place as the source of moral and politicalnorms.

Another positivist reading is found in the writings of Leo Strauss—without a doubt both the most well known and influential of all positivistinterpreters of Rousseau. His most focused essay on this question is his‘‘Three Waves of Modernity.’’ Strauss announces early in the essay what heconsiders to be the great crisis of modernity—the death of universal standardsfor right and wrong. The belief in such standards characterized the thought ofthe ancients, particularly Plato. ‘‘In our time,’’ Strauss tells us, however, ‘‘thisfaith has lost its power.’’43 The modern assault on transcendent standardscame, as the title suggests, in three waves. The first wave was delivered byMachiavelli. According to Strauss, through his transformation of politics froma moral to a technical problem, Machiavelli ‘‘completely severed the connec-tion between politics and natural law or natural right, i.e., with justice under-stood as something independent of human arbitrariness.’’44 Skipping thesecond stage for a moment, the third stage of modernity was Nietzsche, whocapitalized on the historicism of the early to mid-nineteenth century. Theconclusion of theorists like Hegel was that ‘‘all ideas are the outcome ofhuman creative acts,’’45 thus denying the notion that ideas were beyond con-vention. From this assumption, Nietzsche constructs a political philosophybased upon such historicity in the ‘‘transvaluation of all values.’’

Rousseau takes his place as the second wave, between Machiavelli andNietzsche. His contribution to the decline of Western thought is his allegedabsence of nature. In moving from the state of nature to civil society, arguesStrauss, man has lost the only potential source of objective standards—nature.Artificial society does not hear its faint voice, and even if it could, accordingto Strauss, it would have nothing of use to tell us. Into this void Rousseauinserts his General Will. ‘‘The source of the positive law, and of nothing butthe positive law, is the general will; a will inherent or immanent in properly

43 Leo Strauss, ‘‘Three Waves of Modernity,’’ Introduction to Political Philosophy: SixEssays by Leo Strauss, ed. Hilail Gildin (Indianapolis, 1975), 81.

44 Ibid., 88.45 Ibid., 96.


constituted society takes the place of the transcendent natural law.’’46 Furtherevidence for the General Will being merely a positive artifice independent ofnatural law can be found, Strauss tells us, in Rousseau’s dictum that it cannoterr.

Strauss is correct to tell us that the General Will becomes the appropriatestandard for the positive law. The General Will, however, can be conceivedof in two ways. It may be either a positive or transcendent standard. If it werea positive standard, then its content should be of no interest. Neither shouldwe ultimately be concerned with the circumstances of its formation, since allpositivists recognize the arbitrariness of standards. The transcendent construc-tion of the General Will, on the other hand, presupposes that there is a nonar-bitrary higher standard by which we can judge that will to be good or bad. Itis not clear that Rousseau meant for the General Will to be purely positive. Ifit were the case that he intended it to be so, why then should he have preferredthe General Will to the will of all? If they were both merely meant to bepositive standards, there is no meaningful standard by which we could choosebetween the two. There can be no doubt, however, that he means for theGeneral Will to be the only legitimate standard for our positive law. So whatmakes the General Will preferable to the will of all? Patrick Riley reasonablysuggests it is because the General Will secures the more ‘‘ancient’’ (in theStraussian nomenclature) goals of the state—morality, the common good, andthe lack of dangerously extreme individualism.47 These are goals Strauss rec-ognizes in the ancients to be transcendent. The only significant differencebetween the ancients and Rousseau, according to Riley, is that Rousseau wantsto secure political obligation. By securing consent to these transcendent stan-dards, compliance to subsequent laws becomes a far more reasonable expecta-tion—particularly in an era when people are more prone to seek theirindividual goals at the expense of more universal ones.

The standard of consent, however, should not be considered a standard initself—that would be positivism. Again, if it were the case that consent werethe only standard of right (as one might plausibly say is the case in Hobbes),then the will of all could be just as valid as the General Will. But the fact thathe rejects the former out of hand tells us that consent alone cannot be astandard. Further, and perhaps more telling, is that if consent and artificewere Rousseau’s standards, then there is no significant difference between thecontract of the Contrat social and that of the Second Discourse. FromStrauss’s perspective, they are both agreements and therefore have equivalentontological and political status. Such a position, however, is highly counterin-

46 Ibid., 9147 Patrick Riley, ‘‘A Possible Explanation of the General Will,’’ American Political Sci-

ence Review, 64 (1970), 88.


tuitive and certainly contrary to Rousseau’s intentions. There is a reason whyhe calls one contract ‘‘wicked’’ and the other the securer of freedom. This isbecause he presupposes the priority of Justice to consent in legitimate contractformation. Consent is merely a useful artifice for securing transcendent politi-cal ideas. As Riley aptly says, ‘‘though ‘that which is good and conformableto order is such by the nature of things, independent of human conventions,’those conventions are yet required.’’48

Justice and the General Will

The most sustained argument for Rousseau’s positivism can be found inthe work of Arthur Melzer. Melzer argues that not only is there no trace oftranscendent standards in Rousseau’s political philosophy, but even the threatof their existence represents great danger to the state. His construction of theGeneral Will centers on Rousseau’s treatment of equality. Contrary to re-ceived opinion, Melzer argues that he is not a great egalitarian. He is ratherfundamentally inegalitarian. This argument rests on a thin construction ofequality. Melzer says that Rousseau (1) recognizes different talents in individ-uals and (2) holds that people ought to be treated differently according tothese different talents.49 He points to the existence of the legislator, for exam-ple. The lawgiver would need to have ‘‘superior intelligence’’ and great judg-ment talents.50 Melzer is right to note that this constitutes recognition ofinequality. And it is also true that by virtue of the legislator’s superior talents,he should have a position of power not entrusted to inferiors. This principleof inequality is Rousseau’s idea of Justice, according to Melzer.

Rousseau, however, does not base his society on this supposed principleof Justice. He instead grounds legitimate society in the General Will. TheGeneral Will, according to Melzer, is founded upon a strict principle of egali-tarianism and hence injustice. ‘‘First, it requires the superior few to be ruledand led by laws made by the inferior multitude. And second, it makes thesuperior fit into the narrow mold of what is good for the inferior.’’51 ForMelzer this is the embodiment of Rousseauean injustice. ‘‘If Rousseau favorsthe general will, then, it is most certainly not as the embodiment of justice butrather as a hardheaded and practical replacement for it.’’52 One might reason-ably ask why Rousseau, on Melzer’s account, would consciously choose toreplace a just principle with an unjust one. Melzer provides two answers: (1)

48 Ibid., 91.49 Arthur M. Melzer, The Natural Goodness of Man (Chicago, 1990), 156–57.50 Social Contract, 69 [III: 382].51 Melzer, Natural Goodness of Man, 157.52 Ibid., 157.


Justice itself has no natural sanctions and (2) the unjust principle of the Gen-eral Will is more conducive to self-preservation.53

This understanding of the General Will, however, rests upon some chal-lengeable assumptions. First, while it is correct to say that Rousseau recog-nizes and approves of certain natural inequalities, this is irrelevant to theprinciple of equality he endorses by virtue of the General Will. There are twoprinciples of equality at work here: equality of talents and equality of rights.Melzer is concerned with the inequality of talents. The equality established inthe social contract, however, is an equality of rights. These are two distinctnotions of equality, and it is important not to conflate them. Rousseau himselfsays, ‘‘From whatever side one traces one’s way back to the principle, onealways reaches the same conclusion: namely, that the social pact establishesamong the Citizens an equality such that all commit themselves under thesame conditions and must enjoy all the same rights.’’54 Nowhere in Rous-seau’s writings does he suggest that we should by virtue of the social contracterase or refuse to recognize differences in natural talents.55 The equality im-posed upon citizens is mere legal equality. All are equally subject to the laws,regardless of their natural inequalities. And if their natural inequalities lead tofurther social differences, then so be it.56

Second, and even more importantly, it is not clear that Rousseau everdefines inequality of any kind as being equivalent to Justice. There is evidenceto the contrary that suggests Melzer’s hypothesis is the opposite of Rousseau’sintentions. The General Will is not the anti-Justice principle. It is rather aprinciple aimed at realizing the abstract idea of Justice. As George Kateb hasargued, ‘‘the aim of the general will is justice.’’57 In Rousseau’s own words,‘‘one need only be just in order to be sure of following the general will.’’58

This sentiment is repeated in the Social Contract when he tells us that in civilsociety Justice is the rule of conduct.59 Given the claim elsewhere that theGeneral Will is the fundamental rule of conduct,60 there is good reason tobelieve that these two notions are intimately connected. Minimally, these are

53 This latter explanation would be the Hobbesian minimum of what is required, i.e., peaceand survival.

54 Social Contract, 62–63 [III, 374].55 Though, to be sure, he is concerned about some of their social consequences.56 This is, of course, only true to a certain limit beyond which he says we must guard

against inequalities of wealth for the purposes of social stability: ‘‘It is . . . one of the mostimportant tasks of government to prevent extreme inequality of fortunes,’’ Jean-Jacques Rous-seau, Discourse on Political Economy in Of the Social Contract and other Later PoliticalWritings, ed. Victor Gourevitch (Cambridge, 1997 [1755]), 19 [III: 258].

57 Kateb, ‘‘Aspects,’’ 520.58 Political Economy, 12 [III: 251].59 Social Contract, 53 [III: 364].60 Emile, 460 [IV: 840]; Political Economy, 9 [III: 247]; Social Contract, 57 [III: 368];

Government of Poland, 206 [III: 984].


not the words of someone who conceives Justice and the General Will to beantithetical, as Melzer suggests.

Beyond this, defining Justice as inequality, as Melzer does, renders sev-eral of Rousseau’s references to Justice nonsensical. Consider his discussionof the lawgiver. He wants this individual to create the laws and then exit thesociety, having no further power over citizens. If the lawgiver were to haveboth powers of constitution writing and political ruling, ‘‘the laws, as minis-ters to his passions, would often only perpetuate his injustices, and he couldnever avoid having particular views vitiate the sanctity of his work.’’61 Rous-seau apparently associates the idea of injustice with partiality, and recallinghis distinction between the General Will and the will of all, the flaw of thelatter is that it incorporated these partial views. ‘‘One ought . . . to presumethat the particular will will often be contrary to the general will, for the privateinterest always tends to preferences, and the public interest always tends toequality.’’62 The logic here is clear enough: partiality � inequality � injus-tice. Justice and equality have a strong relationship. To argue that they areopposites obscures Rousseau’s uses of the word ‘‘Justice.’’

Finally, Melzer suggests that one reason why the General Will must re-place Justice is that Justice has no natural sanctions. To be sure, he is right innoting that Rousseau is aware of this. Rousseau himself says, ‘‘consideringthings in human terms, the laws of justice are vain among men for want ofnatural sanctions; they only bring good to the wicked and evil to the just whenhe observes them toward everyone while no one observes them towardhim.’’63 If one only reads to this point, a strong case could be made for acomparison to Hobbes. Hobbes also rejects the prudence of obeying the lawsof nature in the state of nature. But Rousseau’s paragraph continues signifi-cantly to add: ‘‘Conventions and laws are therefore necessary to combinerights with duties and to bring justice back to its object.’’ Rousseau’s purposein placing the people under the authority of the General Will is not to defeator ‘‘replace’’ Justice. It is rather to enable Justice and make it binding onpersons so that no one may violate its principles with immunity. We mightfurther ask why Rousseau desires the sanctions. It is at least plausible to arguethat he believed the sanctions to be demanded by Justice. Many have drawnthe connection of Rousseau to Kant. For Kant, Justice demands sanctions.Would it not be reasonable to expect Rousseau to require punishment on simi-lar grounds?

In spite of interpretive flaws of the positivist school, Melzer draws atten-tion to an important consideration. The General Will is not the same thing as

61 Social Contract, 69–70 [III: 382] (emphasis added).62 Emile, 462 [IV: 842])63 Social Contract, 66 [III: 378].


Justice. Justice is an Idea for Rousseau. The General Will, on the other hand,as Melzer properly notes, ‘‘exists as a will: it is not . . . a ‘truth.’’’64 This isclear from the very meaning of the word, ‘‘will.’’ Ideas, such as Justice, arenot willed. They exist simply as abstractions. A will, on the other hand, be-longs to an agent or agents. It is a concrete entity. In this respect, one can seeboth how close and how far away J. L. Talmon was to a correct understandingof the General Will. ‘‘Ultimately the general will is to Rousseau somethinglike a mathematical truth or a Platonic idea. In has an objective existence ofits own, whether or not it is perceived.’’65 If he were talking about Justicerather than the General Will, his remarks would be perfectly accurate. Thischaracterization though is not true of the General Will itself, the existence ofwhich is contingent, even if its content is not. At any rate, one would be rightto connect the General Will to the people. What the positivist interpretationfails to appreciate, however, is that our unrefined will can converge on ordiverge from an Idea. Melzer cites the very passage where Rousseau makesthis point absolutely clear without drawing attention to its significance in thisrespect.

If, when an adequately informed people deliberates, the citizens wereto have no communication among themselves, the general will wouldalways result from the large number of small differences, and thedeliberation would always be good. But when factions, partial associ-ations at the expense of the whole, are formed, the will of each ofthese associations becomes general with reference to its members andparticular with reference to the state. One can say, then, that there areno longer as many voters as there are associations. The differencesbecomes less numerous and produce a result that is less general. Fi-nally, when one of these associations is so big that it prevails over allthe others, the result is no longer a sum of small differences, but asingle difference. Then there is no general will, and the opinion thatprevails is merely private opinion.66

The concern here is with the presence of factions. This is as true for Rousseauas it is for Plato, Hume, or Madison. To the extent that the will of the people

64 Melzer, Natural Goodness of Man, 160.65 J. L. Talmon, The Origins of Totalitarian Democracy (London, 1955), 41. Talmon later

says that for Rousseau, ‘‘There is such a thing as an objective general will, whether will ornot willed by anybody’’ (Ibid., 43). This characterization, however, includes an obvious self-contradiction. It is in the very nature of a will that it in fact be willed. This is one clearadvantage of my interpretation of Rousseau. The General Will does not have this self-contradic-tory independent ontological existence. It must be willed, if it is to exist. That will, however,must mirror the Idea of Justice if it is to exist.

66 Social Contract, 60 [III: 371–72].


is less general, the more it resembles a faction. The question is, however, whyRousseau should care whether or not factions exist. This draws us to the verynature of partisanship. Partisanship is the enriching of some at the expense ofothers. This has long been received as a principle of injustice. James Madison,for example, describes factions as deciding policy contrary ‘‘to the rules ofjustice.’’67 According to Rousseau, the more partial or factious people are, thefarther away they are from Justice. We might also infer that the closer theGeneral Will is to Justice, the more ‘‘enlightened’’ it is.68

The Idea of Justice and Rousseau’s Political Constructivism

Rousseau says little explicitly about Justice. T. K. Seung correctly notesthat Rousseau never gave ‘‘an ontological account of moral principles and thegeneral will.’’69 Yet if we read closely enough, there are enough pieces of ametaphysical puzzle to put one together. The most important ontological fea-ture of such a concept is whether or not it is transcendent. ‘‘What is good andconformable to order is so by the nature of things and independently of humanconventions. . . . No doubt there is a universal justice emanating from reasonalone.’’70 That Justice might be something other than conventional is con-firmed by many passages including his obvious passionate and heartfeltreactions to injustice—for example, ‘‘My moral being would have to be anni-hilated for me to lose interest in justice. The sight of injustice and wickednessstill makes my blood boil with anger.’’71 Rousseau says elsewhere that theprinciples of right and wrong are ‘‘engraved in the human heart in indeliblecharacters.’’72 In the Lettres Morales he tells us, ‘‘[T]here is, at the bottom ofall souls, an innate principle of justice and of moral truth [which is] prior to allnational prejudices, to all maxims of education.’’73 It is difficult to reconcileRousseau’s remarks with Masters’s interpretation of Justice merely as ‘‘amental construction.’’74

67 James Madison, ‘‘Federalist No. 10,’’ The Federalist Papers, ed. Clinton Rossiter (NewYork, 1961 [1789], 77.

68 Social Contract, 68 [IIII: 380].69 T. K. Seung, Kant’s Platonic Revolution in Moral and Political Philosophy (Baltimore,

1994), 66. See also Emile, 235 [IV: 522]: ‘‘I am reminded here that my business here is notproducing treatises on metaphysics and morals or courses of study of any kind. It is sufficientfor me to mark out the order and the progress of our sentiments and our knowledge relative toour constitution. Others will perhaps demonstrate what I only indicate here.’’

70 Social Contract, 66 [III: 378].71 Jean-Jacques Rousseau, Reveries of the Solitary Walker, trans. Peter France (New York,

1979 [1778]), 101 [I: 1057].72 Jean-Jacques Rousseau, ‘‘The State of War,’’ The Social Contract and other Later Politi-

cal Writings, ed. Victor Gourevitch (Cambridge, 1997 [1758]), 166 [III: 602].73 Jean-Jacques Rousseau, Lettres Morales in Œuvres completes, vol. IV, ed. B. Gagnebin

and M. Raymond (Paris, 1969 [1757]), [IV: 1108].74 Roger Masters, The Political Philosophy of Rousseau, 271.


Rousseau not only believes this to be true rationally, but Justice’s univer-sality is also evident to him from casual empiricism: ‘‘Cast your eyes on allthe nations of the world, go through all the histories. Among so many inhu-man and bizarre cults, among this prodigious diversity of morals and charac-ter, you will find everywhere the same ideas of justice and decency,everywhere the same notions of good and bad.’’75 Rousseau synthesizes bothmetaphysical and empirical claims in his Third Walk, if we consider Justiceto be one of ‘‘the eternal truths which have been accepted at all times and byall wise men, recognized by all nations, and indelibly engraved on the humanheart.’’76 This appeal to a universal and invariant standard is none other thanan appeal to Platonism. The essential characteristics of Plato’s theory of theForms, throughout all his dialogues, are the universal and noncontingencyfeatures. A Form does not change from time to time or circumstance to cir-cumstance and there is nothing people can do to alter this condition. The Ideaof Justice, according to Rousseau, is both universal and completely beyondthe ability of man to change. A people cannot make something just by willingit to be so. Rousseau can only hope that their will can somehow be broughtaround to see the idea of Justice. This is the aim of what he calls the GeneralWill. Inasmuch as the General Will can be brought to see the eternal truth ofJustice, it will, in Rousseau’s words, ‘‘always be good.’’77 This is the idealconstruction of the General Will.

This, however, necessarily begs a question relating back to the openingparagraph. Several have argued that Rousseau explicitly rejected Platonism.He did not see the Forms, and therefore could not have employed them. Thisargument, made prominently by James Miller, rests upon Rousseau’s rejectionof Plato’s early theory of the Forms. Supporting Miller’s case is his referenceto Plato’s Republic belonging to the ‘‘land of the chimeras.’’78 To appreciatethis apparent rejection, however, it is important to keep in mind that Platohimself was highly critical of both his earlier metaphysics (e.g., Parmenides)and his politics (e.g., Laws). This led him to reformulate his theory of theForms to serve the purposes of political philosophy.79 And it is this later the-ory of the Forms, I argue, that Rousseau employs as if he were a student atthe Academy himself. As noted above, Rousseau was no metaphysician. Butthis does not make him an anti-Platonist. Rather, it means that we must try tounderstand the implicit system supporting his explicit claims

Platonism can be of two kinds: normative and metaphysical. Normative

75 Emile, 288 [IV: 597–98].76 Reveries, 59 [I: 1021].77 Social Contract, 60 [III: 371].78 Jean-Jacques Rousseau, Letters Written from the Mountain, ed. Christopher Kelley and

Eve Grace (Hanover 2001 [1764]), 234 [III: 810].79 Seung, Plato Rediscovered, ix–xiv.


Platonists rely upon transcendent standards in making judgments, but they donot necessarily declare or elaborate ontological commitments concerning theirsupersensible existence. Rousseau, as indicated, clearly has such a disposition.Metaphysical Platonists, on the other hand, not only rely on such standardsbut also declare the ontological existence of the Forms. Rousseau never makessuch a claim.80 Nevertheless, normative Platonists, whether they claim to ornot, ultimately rely on some conception of metaphysical Platonism. In whatfollows I sketch out some of the Platonic dimensions of Rousseau’s implicitmetaphysical assumptions.

In the Republic, Plato proposes a version of the ideal state. And it is awell-known tale to all political philosophers that this state is run by the per-fectly wise and just philosopher-rulers. But it is equally well known that sucha state is entirely impracticable. The philosopher-ruler is nowhere to be foundin the real world. The true nature of human beings does not admit to theexistence of such persons. ‘‘[N]o human being is competent to wield an irre-sponsible control over mankind without becoming swollen with pride andunrighteousness.’’81 It was this element of the Republic that led Rousseau tohis claim that it belonged to ‘‘the land of the chimeras.’’

A further problem associated with the Republic was the inflexibility ofthe Forms. The Forms of the Republic were pronouncedly determinate. If onewanted to know the Form of a bed, one only needed to consult the relevantForm in Platonic heaven. Thus when it came time for Plato to articulate histheory of the state, all he needed to do was to look up to the Forms and bringthe entire edifice down to the real world.82 Hobbes mocked the consequencesof this metaphysic as practiced among his contemporaries. As Charles Hendelnoted, ‘‘he repudiated their ideas of ‘natural laws’ and ‘rights’ and ‘fundamen-tal laws’. Such laws were a feudal strait-lacing of the body-politic; they pre-vented its ‘representative’ from meeting the exigencies of public affairs. . . .[T]hey were a fatal restriction on the new power of sovereignty which was tosave the day.’’83 The inability to meet the exigencies of circumstance is indeeda tricky problem for a determinate theory of the Forms. And it is not clearthat there is anything that can be done about it within the scope of Plato’smetaphysics in the Republic. It is for this insensitivity to context andchange that, Shklar argues, Rousseau rejects Plato’s treatise ‘‘utterly and com-pletely.’’84

80 He does say, however, that the ‘‘most profound metaphysics’’ are to be found in ‘‘Plato,Locke, or Malebranche’’ (P [IV: 1111]).

81 Plato, The Laws in The Collected Dialogues of Plato, ed. Edith Hamilton and Hunting-ton Cairns (Princeton, 1961), 713c. All Plato references are to Stephanus numbers.

82 Plato, The Republic in The Collected Dialogues of Plato, ed. Edith Hamilton and Hun-tington Cairns (Princeton, 1961), 592b.

83 Hendel, Rousseau: Moralist, I, 169.84 Shklar, Men and Citizens, 9.


One, however, would be severely underestimating Plato’s resourcefulnesswere one to think that Plato was not himself aware of these problems. Platofamously criticizes himself in the Parmenides, for example, where Parmen-ides asks Socrates if there is not a Form for everything so trivial as mud, hair,and dirt,85 the implication being that the multiplicity of Forms rendered themunwieldy. A further difficulty resided in the problem of overdeterminacy. TheForms described in the earlier dialogues were inflexible and unable to meetthe challenges of the real world. Plato’s story of the physician in the States-man reveals his discovery. Plato tells us of a doctor who is preparing for anextended trip abroad. Before he leaves he gives his patient a prescription. Thepatient is expected to follow the prescription carefully. Yet what would hap-pen if the physician didn’t leave town? Would he give precisely the sameprescription? Plato suggests that a commitment to do so would be absurd.86

The physician must be flexible to meet whatever conditions might arise duringthe patient’s convalescence. Plato therefore, as I have suggested, revised hismetaphysics to meet these objections. The new theory of the Forms shared afew characteristics with the old one. The Forms were still universal and un-changing. It is the changes in the theory of the Forms, however, which interestus at the moment. The theory of the Forms no longer described determinateentities; rather it described indeterminate ideas. This had two important impli-cations. First, the number of Forms was reduced from something perhapsinfinite to just a handful. This addressed the triviality problem brought upin the Parmenides. Second, because the Forms were so indeterminate, theirarticulation in the phenomenal world required the art of construction.87

The political implications of this new metaphysic are explored in theStatesman. Here Plato tells the myth of two ages: the age of Cronus and theage of Zeus. In the age of Cronus divine beings governed the state whereno laws were needed. Because of this, Plato says, ‘‘there were no politicalconstitutions.’’88 The gods who ruled this age would have only found laws tobe restricting. This resembles the philosopher-ruler of the Republic. Platoconsciously keeps the number of laws in the Republic to the bare minimum,leaving the rulers free to act as necessitated by circumstance.

The age of Zeus followed the age of Cronus and ushered in the world inwhich we now live. It is an age where mere mortals must find a way to governthemselves. And since men lack the acumen found only among gods, they

85 Plato, Parmenides in The Collected Dialogues of Plato, ed. Edith Hamilton and Hun-tington Cairns (Princeton, 1961), 130c.

86 Plato, Statesman in The Collected Dialogues of Plato, ed. Edith Hamilton and Hunting-ton Cairns (Princeton, 1961), 295b–f

87 This art is called various things in different dialogues. In the Statesman and Sophist itis called ‘‘weaving’’; in the Philebus it is called ‘‘mixing.’’

88 Plato, Statesman, 271e–72a.


must resort to the implementation of law. With law, men do their best toapproximate the wisdom of the gods. And it is this age in which the AthenianStranger constructs the city of Magnesia in the Laws. ‘‘Mankind must eithergive themselves a law and regulate their lives by it, or live no better than thewildest of wild beasts.’’89 Here he foreshadows Rousseau, who likewise said,‘‘I assume men having reached the point where the obstacles that interferewith their preservation in the state of nature prevail by their resistance overthe forces which each individual can muster to maintain himself in that state.Then that primitive state can no longer subsist, and humankind would perishif it did not change its way of being.’’90 Thus, Plato suggests, we embrace lawas a second-best option. While we would prefer the perfect understanding andruling of the gods, we can still live meaningful and just lives under humanlegislation. The task of political and legal construction is the task of articulat-ing the indeterminate Forms in a manner that will promote Justice to thegreatest extent. Furthermore, this task is a necessary one, because the Formsare indeterminate. Indeterminate Ideas cannot themselves without human ar-ticulation take the function of a legal code.

Now it is a fact of the world that the simple articulation of any Idea intoa rule renders that Idea less than perfect. ‘‘The differences in human personal-ity, the variety of men’s activities, and the inevitable unsettlement attendinghuman experience make it impossible for any art whatsoever to issue unquali-fied rules holding good on all questions at all times.’’91 Rousseau digested thislesson as well: ‘‘The inflexibility of the laws, which keeps them from bendingto events, can in some cases make them pernicious, and through them causethe ruin of a State in crisis.’’92 Hence no constitution could ever do the jobthat the gods in the age of Cronus could. It is merely the task of the lawmakerto provide laws that promote the Idea of Justice to the greatest extent possible.

A significant consequence of this lesson is that different lands will requiredifferent sets of law. And because the Forms are indeterminate, they possessthe requisite flexibility required for the task. The Forms Plato employs in theLaws are not like those found in the Republic. Whereas there is a multiplicityof Forms in the Republic, there are considerably fewer in the Laws. In Plato’slast major dialogue each law is drawn from the idea of Justice and is thenarticulated with knowledge of the empirical world. This can be seen with theages of Cronus and Zeus. In the former world, Plato suggests that laws areunnecessary due to the perfection of the rulers. In the latter, rulers are neces-sary due to the empirical fact of imperfect human judgment. Therefore, itstands to reason that other empirical factors would equally affect the construc-

89 Plato, Laws, 874e–75a.90 Social Contract, 49 [III: 360].91 Plato, Statesman, 294b.92 Social Contract, 138 [III: 455]).


tion of political institutions and the laws. Plato’s Laws draw attention to nu-merous such considerations, including proximity in relation to the sea,productivity of the land, proximity to other cities, topography, and origins ofthe people.93 ‘‘A sagacious legislator . . . will give these facts all considerationa man can, and do his best to adapt his legislation to them.’’94 Such empiricalconcerns are of no concern to the Plato of the Republic, but by the time hehas arrived at the Laws they become paramount. His revised conception ofthe Forms allowed him both the normative force of transcendent norms andthe ability to fit these norms to circumstance.

Rousseau understood this lesson as well as anyone could. This should notbe surprising in light of the careful readings he gave to Plato’s Laws and hisfamiliarity with Montesquieu.95 It is easy to find evidence that he came to thesame conclusions as the Ancient. The first is in his appeals to the contextualsensitivity of the law. There are numerous occasions where he suggests thatregimes, laws, and institutions must take into account the circumstances underwhich they will be realized.

[The] general aims of every good institution must be adapted in eachcountry to the relations that arise as much from local conditions asfrom the character of the inhabitants, and it is on the basis of theserelations that each people has to be assigned a particular system ofinstitutions which is the best, not perhaps, in itself, but for the Statefor which it is intended.96

[T]here is no unique and absolute constitution of Government, but . . .there may be as many Governments differing in nature as there areStates differing in size.97

[S]ince a thousand events can change the relations of a people, notonly can different governments be good for different people, but theycan also be good for the same people at different times.98

[T]he question, which is absolutely the best Government, does notadmit to a solution because it is indeterminate: or, if you prefer, it has

93 Plato, Laws, 704b–7e.94 Plato, Laws, 747e.95 See Silverthorne, ‘‘Rousseau’s Plato,’’ 235–249, and Montesquieu, The Spirit of the

Laws, ed. Anne Cohler, Basia Miller, and Harold Stone (Cambridge, 1989), esp. books 14, 18,19, 20, 23, and 24.

96 Social Contract, 79 [III: 392].97 Ibid., 85 [III: 398].98 Ibid., 83–84 [III: 397].


as many good solutions as there are possible combinations in theabsolute and relative positions of peoples.99

[T]he science of government is nothing but a science of combinations,applications, and exceptions, according to times, places, circum-stances.100

The second place to look for Rousseau’s understanding of this lesson is in hisexplicit calls for empirical knowledge in the construction of government andlaw.

Just as an architect, before putting up a large building, observes andtests the ground to see whether it can support the weight, so the wiseinstitutor does not begin by drawing up laws good in themselves, butfirst examines whether the people for whom he intends them is fit tobear them.101

Unless one knows the Nation for which one is working thoroughly,one’s labor on its behalf, regardless of how excellent it may be initself, will invariably fall short in application, and even more so inthe case of an already fully instituted nation, whose tastes, morals,prejudices and vices are too deeply rooted to be easily stifled by newseeds. A good institution for Poland can only be the work of the Polesor of someone who has studied the Polish nation and its neighbors atfirst hand.102

Although the form of government adopted by a people is more oftenthe work of chance and fortune than of its own choice,103 there arenevertheless certain qualities in the nature and soil of each countrywhich make one government more appropriate to it than another; andeach form of government has a particular force which leads peopletoward a particular occupation.104

99 Ibid., 104–05 [III: 419]100 Jean-Jacques Rousseau, ‘‘Letter to Mirabeau,’’ The Social Contract and Other Later

Political Writings, ed. Victor Gourevitch (Cambridge: 1997 [1767]), 269.101 Social Contract, 72 [III: 384–85].102 Government of Poland, CGP, 177 [III: 953].103 See also Plato’s Laws: ‘‘I was about to say that no human being ever legislates anything,

but that chances and accidents of every sort, occurring in all kinds of ways, legislate everythingfor us’’ (709a).

104 Jean-Jacques Rousseau, Constitutional Project for Corsica in Political Writings, ed.Frederick Watkins. Madison, Wis.: 1986 [1765], 284 [III: 906].


The problem is to adopt this code [of pure moral laws] to the peoplefor which it is made and to the things about which it decrees to suchan extent that its execution follows from the very conjunction of theserelations; it is to impose on the people . . . less the best laws inthemselves than the best of which it admits in the given situation.105

Because the Idea of Justice is indeterminate, the lawgiver is required to havea great sensitivity to context. This seems obvious, but its importance shouldnot be underestimated. The ontological fact of the Forms’ indeterminacyallows for this contextual sensitivity. As T. K. Seung remarks, the articulationof Plato’s idea of Justice in the real world ‘‘requires empirical knowledge.’’106

If one reads Plato only through the Republic this point is lost. This, again,was one of Hobbes’s problems with the Platonism of his contemporaries.107 Ifthe Forms are completely determinate, as he suggests them to be, then theycannot meet the idiosyncratic demands of any particular state. The only twopossible solutions to this are positivism or the Platonism of the Laws. Positiv-ists are not held to any standards when making laws. Thus, when exigenciesarise, they are free to address them. Lacking transcendent standards, however,they have no constraints either. One consequence is that it is impossible forHobbes’s Leviathan to be unjust: ‘‘[W]hatever he [the sovereign] doth, it canbe no injury to any of his Subjects; nor ought he to be by any of them accusedof Injustice.’’108 The Leviathan is above the law. Legislation and legislators inPlato’s Laws and for Rousseau, however, are capable of being unjust. Thusthere are limitations placed upon Rousseau’s sovereign that have no place inHobbes’s philosophy.109 Scholars too frequently forget this important elementof Rousseau’s theory of the state. While it is a well-known maxim that theGeneral Will is always right, what is forgotten is that it can only exist whenformed according to the appropriate standards. Not any calculation of thepeople’s will suffices. This is the difference between the will of all and theGeneral Will. The former is only an aggregation of individual desires. It doesnot pretend to have any higher aspirations. The latter represents the people’sagreement to the Idea of Justice.

105 Jean-Jacques Rousseau, Letter to M. d’Alembert on the Theater, Allan Bloom (Ithaca,N.Y., 1960 [1758]), 66 [V: 61].

106 Seung, Plato Rediscovered, 233.107 Hendel, Rousseau: Moralist, I, 169.108 Thomas Hobbes, Leviathan, ed. C. B. MacPherson (New York, 1968 [1651]), 232.

Even this, however, is somewhat misleading, because positivism does not necessarily have theflexibility described here. It only has this degree of flexibility if the laws are revisable underany conditions whatsoever. To the extent that most positive systems of law circumscribe theconditions under which the law may be revised, that system may not satisfy the conditionsHobbes thought it necessary to meet.

109 Social Contract, 61–64 [III: 372–75].


Objections and Conclusions

Perhaps the greatest objections to my reading of Rousseau will come inthe form of textual evidence. I have already addressed several textuallygrounded arguments, but I have saved three particularly tricky passages.

1. ‘‘[T]he voice of the people is in fact the voice of God.’’110

Taking this passage in isolation, one could construct a convincing positiv-ist interpretation of Rousseau’s General Will. Vox populi, vox dei implies thatthe people can do no wrong. Understanding Rousseau this way, however,presents difficulties. First, if we take Rousseau to mean that the people are notconstrained in formulating the General Will, then we have obvious contradic-tions. This interpretation is simply irreconcilable with the previously dis-cussed restrictions of constrained consent on the formulation of the GeneralWill. Second, this reading is inconsistent with the other evidence presented tosuggest that Rousseau is distancing himself from pure positivism. If this read-ing is true, then we must assume either that Rousseau is contradicting himselfpurposely (which is unlikely) or that he has simply been sloppy.

Alternatively, and perhaps more plausibly, the passage could be read tosuggest that whenever the General Will has been properly derived, its pro-nouncements are necessarily just. This interpretation has the obvious benefitof being consistent with both the other passages discussed here and my overallinterpretation. It is also the case that this excerpt comes immediately follow-ing a paragraph in which Rousseau discusses the capacity of the General Willto ‘‘judge a good or bad government’’111 If a popular government were alwaysgood by definition, as is implied in the positivist interpretation of vox populi,vox dei, such judgments would be impossible. Understanding the passage inthis context also gives new insight into Rousseau’s infamous declaration that‘‘the general will is always upright.’’112 If the General Will is properly derived,which he insists is a necessary condition for it to be called a ‘‘GeneralWill,’’113 then it is coextensive with Justice. It must be just if it is to exist atall; it does not, however, itself define Justice, in the same way that a Labradormust be a dog if it is to exist, but does not itself define ‘‘dog.’’

2. ‘‘[T]he equality of right and the notion of justice which it produces followsfrom each one’s preference for himself and hence from the nature of man.’’114

This passage could easily be interpreted in a Straussian fashion. Insofar

110 Political Economy, 8 [III: 246].111 Ibid., 7 [III: 245].112 Social Contract, 59 [III: 369].113 Ibid., 60 [III: 371–72].114 Ibid., 61–62 [III: 374].


as ‘‘Justice’’ exists, it is produced by a combination of selfish private interests.There are immediate interpretive difficulties with this construction, however.First, if Rousseau means for the true concept of Justice to be ontologicallydependent upon the private interests of humankind, then it is simply the willof all. There are two obvious problems with this implication: (a) if Justice ismerely the will of all, then what is the General Will? and (b) there is no otherpassage in Rousseau to suggest that he meant for Justice and the will of all tobe identical. There is, however, much evidence to suggest that Justice and theGeneral Will have a strong relationship.

Second, reading the passage carefully, one does not find the word ‘‘Jus-tice’’ in isolation. Rousseau rather refers to a ‘‘notion of justice’’ (notion dejustice). One must be careful in reading certain references to the word ‘‘Jus-tice’’ in his works, as they are not always genuine. The most obvious illustra-tion of this is in his Second Discourse where he talks of the property-gobbling‘‘imposter’’ who declares, ‘‘let us institute rules of Justice and peace to whichall are obliged to conform.’’115 While the word ‘‘Justice’’ is employed, it isobvious that this is not Rousseau’s principle of Justice. The same is true ofthe above excerpt. It is at least plausible to argue that this is the spirit in whichRousseau employs this word. While the context does not place this use of‘‘Justice’’ in the ‘‘sham’’ category found in Part II of the Second Discourse, itdoes appear that he is using the term in a far more casual sense than is typicalin his writings (as implied in the use of ‘‘notion of’’). If he had meant to sayJustice, why not then simply say it, rather than prefix it with ‘‘notion of’’?

3. ‘‘[L]aw precedes justice, not justice the law; and if the law cannot be un-just, it is not because it has justice as its basis, which might not always betrue, but because it is against nature to want to injure oneself; which is [true]without exception.’’116

This is the most apparently damaging passage for my interpretation.Melzer and Masters cite it as conclusive evidence for their hypothesis thatRousseau rejects substantive standards.117 Masters speculated, in fact, thatRousseau self-consciously understood this passage to reveal his positivism.118

And there can be no doubt whatsoever that anyone reading this passage inisolation would come to the same conclusion as the Straussians. The textappears unambiguous.

There is reason, however, to wonder if this is the only reading consistent

115 Discourse on Inequality, 173 [III: 177].116 Geneva Manuscript, 160 [III: 329].117 Melzer, ‘‘Rousseau’s Moral Realism: Replacing Natural Law with the General Will,’’

640; Masters, Political Philosophy of Rousseau, 275.118 Roger D. Masters, ‘‘Introduction and Notes,’’ On the Social Contract with Geneva

Manuscript and Political Economy (New York, 1978), 207.


with the text and Rousseau’s intentions. Rousseau’s discussion of Justice inthis excerpt occurs in the context of a psychological description of how citi-zens arrive at their understanding of Justice. Rousseau is not giving an onto-logical account of the derivation of Justice. This is evident from the fact thathe refers once again to the ‘‘notions’’ of Justice and injustice (notions distin-ctes du juste et de l’injuste). Paraphrasing Rawls, we may say that Rousseau’saccount here is psychological, not ontological. Beyond this, however, there isan equally important reason we should resist the positivist interpretation ofthis passage—that Rousseau himself edited this portion of his argument outof the Social Contract. Masters suggests that the editing was done to protectcitizens from ‘‘the dangerous implications if an unscrupulous politician [wereto] read such statements.’’119 It is at least equally plausible, however, to sug-gest that he edited it out because of the passage’s potential for ambiguity andapparent contradiction. This is, after all, the same chapter that Rousseauopened by declaring, ‘‘That which is good and conforms with order is suchby the nature of things and independently of all human convention,’’120 apassage he retained in his second draft.121 Removing the potentially ambigu-ous passage certainly makes this opening line clearer and what I take to behis central message more obvious.

In an important sense, the Straussians are right to emphasize the centralityand significance of Thomas Hobbes for Rousseau and modern political philos-ophy generally. As I have already suggested, however, this significance doesnot take the form of influence beyond the important device of a social con-tract. Rather, Hobbes shapes a philosophy against which many modern think-ers consciously react in the shape of alternative constructions of the socialcontract. And in this respect, it is important to understand the contrastingresponses found in Locke and Rousseau. Both of the post-Hobbesian thinkersfound significant problems in the apparent Hobbist positivism. For Rousseau,‘‘to yield to force is an act of necessity, not of will; it is at most an act ofprudence. In what sense can it become a duty?’’122 For John Locke, the posi-tive law cannot be binding without reference to natural law.123 Their solutions,however, represent two widely divergent paths that in many respects shapethe evolution of subsequent substantive political theory.

Locke’s solution to the problem of positivism was to construct an elabo-rate edifice of natural laws. His laws of nature include specific provisions forparticular rights, famously including the rights of life, liberty, health, and

119 Ibid., 207.120 Geneva Manuscript, [III: 326].121 Social Contract, 66 [III: 378]122 Ibid., 44 [III: 354].123 John Locke, ‘‘Essays on the Law of Nature,’’ in Political Essays, ed. Mark Goldie

(Cambridge, 1997 [1663–64]), 120.


possessions. Additionally, Locke also prescribes the laws of acquisition andthe specific conditions under which revolutions are justifiable. These laws aretranscendent and universally applicable. Insofar as Locke relies on substantiveideas in his theory of the state, he is able to solve the problem of Hobbes’spositivism. One can make meaningful criticism of the law, according to thistheory. Locke’s particular solution of transcendent rules, however, takes himback to the same rigidity that led Hobbes to his innovations in the first place.Presumably, there are occasions on which a strict adherence to the transcen-dent rules could prove troublesome both in theory and in practice.

Rousseau’s solution to the problem of positivism, on the other hand, wasto rely on an indeterminate transcendent Idea of Justice. As was the casewith Locke, he provides the foundation from which one can make meaningfuljudgments of right. Distinguishing himself from Locke, however, it is the ideaof Justice, rather than the natural laws, providing the standard. With this in-sight, we can now answer a question posed by Alfred Cobban some fifty yearsago: ‘‘[I]f he held that there is no Law of Nature, how . . . could Rousseauhave provided a moral sanction for his social contract?’’124 The answer isthrough his employment of abstract transcendent political principles. By vir-tue of this approach, Rousseau does not have the problem of rigidity thatburdens Locke. This gives his solution the double benefit of gaining boththe transcendent judgment Locke felt necessary and the flexibility desired byHobbes. This flexibility allows him certain freedoms denied in Locke’s ontol-ogy. He, for example, allows for ‘‘a thousand cases when it is an Act of justiceto hurt one’s neighbor.’’125 Though Rousseau does not provide illustrations,one could easily imagine contemporary examples—stealing the guns of aneighbor plotting a school shooting, for instance. It is less clear that Lockewould permit such intrusions. Rousseau’s solution though is not without itsown difficulty. In exchange for the flexibility, he loses determinacy. Whereasno one has any doubt about the content of Locke’s natural laws, the contentof Rousseau’s idea of Justice may very well be the source of competing inter-pretations. Normatively, this is a difficult problem. How, for example, are weto mediate between these interpretations? Descriptively, however, Rousseau’snotion of an indeterminate idea of Justice seems an apt representation, giventhe number of competing interpretations of Justice. And wouldn’t it be justlike Rousseau to leave us with yet another controversy?

University of Wisconsin–Stevens Point.

124 Alfred Cobban, ‘‘New Light on the Political Thought of Rousseau,’’ Political ScienceQuarterly, 66 (1951), 277.

125 Geneva Manuscript, 161 [III: 330].

Documents

Justice and the General Will: Affirming Rousseau's Ancient Orientation