An Examination of Some Ideas
of Rousseau on the Legislator
Rousseau has written a chapter on the legislator where all ideas are confounded in the most intolerable way. In the first place, this word legislator can have two different meanings: usage gives this name to the extraordinary man who promulgates constitutional laws, and to the much less admirable man who publishes civil laws. It seems that Rousseau understands the word in the first sense, since he speaks of the one “who dares to undertake to institute a people and who constitutes the Republic”. But, soon after, he says that “the legislator is in all respects an extraordinary man, in the state”. Here there is already a state; the people is thus constituted, so it is no longer a question of instituting a people, but, at most, of reforming it.
Then Lycurgus, the modern legislators of the republics of Italy, Calvin, and the decemvirs are cited mercilessly and all at once.
Calvin can thank Rousseau for having placed him next to Lycurgus; he certainly needed such an introduction, and without Rousseau he would never have chanced to find himself in such good company.
As for the decemvirs, Rome was 300 years old and possessed all its fundamental laws when three deputies went to seek civil laws for it in Greece; and I do not see that we must regard the decemvirs as above the human sphere1 for having said:
Si in jus vocat, atque eat, si calvitur
pedemve struit, manum endo jacito2
[“If the plaintiff summons him to trial, he shall go … if he attempts evasion
or takes flight, the plaintiff shall lay a hand on him”]
…and a thousand other things, assuredly very beautiful, on legacies, wills, funerals, roads, gargoyles, and gutters, but which are nevertheless a little below the creations of Lycurgus.
Rousseau confounds all these ideas, and generally affirms that the legislator is neither magistrate nor sovereign. “His business,” he says, “is a superior function that has nothing in common with human dominion.” If Rousseau means to say that a private individual can be consulted by a sovereign and can propose to him good laws that may be accepted, this is one of those truths so trivial and so sterile that it is useless to take it up. If he intends to maintain that a sovereign cannot make civil laws, as the decemvirs did, this is a discovery of which he has all the honour, no one having ever suspected it. If he intends to prove that a sovereign cannot be a legislator in the full sense of the term and cannot give to peoples truly constitutional laws by creating and perfecting their public law, I appeal to universal history.
But universal history never troubles Rousseau, for when it condemns him (which almost always happens), he says that it is wrong. “Whoever drafts the laws,” he says, “therefore, does not have or ought not to have any legislative right.” (Ibid.)
Here we must remain silent: Rousseau himself speaking as legislator, there is nothing left to say. However, he also quotes history, and it is not unprofitable to examine how he acquits himself.
“Rome,” he says, “in its greatest age… was brought to the brink of destruction for having placed into the same hands (the decemvirs) legislative authority and sovereign power.” (Ibid.)
In the first place, legislative power and sovereign power being the same thing according to Rousseau, it is as if he had said that the decemvirs united sovereign power and sovereign power.
In the second place, since, according to Rousseau himself, “the decemvirs never claimed for themselves the right to pass any law on their own authority,” and since, in effect, the laws they drew up were sanctioned by the assembly of centuries, it is, again, as if he had said that the decemvirs had the legislative authority and did not have the legislative authority.
In short, the simple truth, not according to Rousseau, but according to Livy, is that the Romans, having had the imprudence to abolish all their magistracy and to unite all the powers on the heads of the decemvirs,3 thus created true sovereigns who lost their heads like all impromptu sovereigns, and abused their power. This is, again, one of those banal truths that everyone knows, and which is absolutely foreign to what Rousseau wished to prove. Let us pass on to Lycurgus.
“When Lycurgus,” he says, “gave laws to his country, he began by abdicating the throne.” (Ibid.) These words obviously signify that this famous legislator, being a king, abdicated kingship at the moment when he wished to give laws to his country, and to put himself in a position to do so. Now, up to this point we had believed that Lycurgus, strictly speaking, was never king, that he was only believed to be king for a moment, that is to say, from the death of his brother to the moment when his sister-in-law’s pregnancy was declared; that, in truth, he had governed for eight months—but as regent and tutor (Prodicos) of the young Charilaüs; that, in showing his nephew to the Spartans and telling them “Spartan Lords, a king is born to us,” he had done unto the legitimate heir only a strict act of justice which could not bear the name abdication. We had believed, moreover, that Lycurgus thought nothing of giving laws to his country; that since that memorable epoch, fatigued by the intrigues and hatred of his brother’s widow and his partisans, he travelled to the isle of Crete, to Asia Minor, Egypt, and even, according to a Greek historian, to Spain, Africa, and even to the great Indies; and that it was only upon his return from these long voyages that he undertook his great work, overcome by the repeated prayers of his compatriots and by the oracles of the gods. This is what Plutarch tells us; but Rousseau would have been able to say, like Molière, “we have changed all that”.
Behold how well this great political mind knew history!
1 “The legislator is in every respect an extraordinary man in the state… His business … has nothing in common with human dominion. (Contrat social, ch. VII)
2 [Maistre has run the first two statutes of the twelve tables together: (1) Si in jus vocat, atque eat; ni it, antestamino: igitur eum capito (“If the plaintiff summons him to trial, he shall go; if he does not go, the plaintiff shall call a witness: only then shall the plaintiff seize him”). (2) Si calvitur, pedemve struit, manum endo jacito (“If he attempts evasion or takes flight, the plaintiff shall lay a hand on him”).]
3 Placet creari decemviros sine provocatione, et ne quis eo anno alius magistratus esset [“It was determined to create decemvirs, from whom there should be no appeal, and that there be no other magistracy that year”]. (Livy, 1, III)