Chapter Three: Locke and Rousseau

LOCKE

This chapter compares the conceptions of sovereignty developed by Locke in the Second Treatise of 1689 and by Rousseau in the Social Contract of 1762. What are being compared are two versions of popular sovereignty—one account in which the term sovereignty itself is barely mentioned, and the other in which the term is very prominent. Locke’s and Rousseau’s meanings of popular sovereignty are diametrically opposed. Sovereignty does a lot of work in Rousseau’s political theory. Locke is much more cautious and indeed negative about the notion, but the idea of sovereignty is nevertheless also very important to the construction of his theory. It needs to be borne in mind that the sovereignty of the people, for Locke, is provisional, conditional, qualified, disaggregated, and limited.

However, Locke’s and Rousseau’s theories are also signally similar in that in both sovereignty is notably performative rather than juridical. Both writers trace a strong link between the voluntary act of making a social contract and sovereignty on the one hand, and the later enacting of sovereignty (in a weak sense for Locke in ‘revolution’ and in a robust repeated sense for Rousseau) on the other. Both take the idea of a social contract seriously, and it is a substantive element of each theory, whereas for Hobbes and Spinoza the social contract functions primarily only as a formal and abstract mechanism in a line of reasoning. Locke appeals to an ‘original compact’ while Rousseau refers to the ‘social pact’ or ‘social contract’. It is through the notions of a social contract and either rare ‘revolution’ or regular performance that both Locke and Rousseau have cogent, though very different, theories of popular sovereignty. For Locke the social contract helps to protect what would later be called liberal rights, while the social contact in Rousseau is a part of a republican vision. It also needs to be borne in mind that the features of Locke’s position (individualism, pre-political rights, suspicion of government etc) are strongly associated with what became known as the liberal view, while his position is not that of what became held by liberal democrats. It was not until the much later development of liberal democracy that the notion of popular sovereignty was given institutional expression. What is most distinctive about Locke’s theory of sovereignty is its ingenious logic, popular and yet not popular, and the deliberate absence of the term ‘sovereignty’ as a political concept.

The Second Treatise was published in 1689, the year after the Revolution of 1688 and the inauguration of the constitutional monarchy of William and Mary. Laslett’s case, that the Second Treatise was not written to justify the Revolution as previously thought (Laslett 1965, 78), still carries considerable weight. Laslett argues that the Second Treatise was instead drafted between 1679 and 1683 as a call for revolution at the time of the Exclusion Crisis amid fears of a Catholic monarch, when Charles II was being entreated to disbar his Catholic brother James from the succession. Locke was instrumental at this time in articulating the political position of his powerful friend and political ally, the earl of Shaftesbury, a leading Whig politician. Certainly, Locke’s antipathy to ‘absolutism’ and so to subscription to the ‘absolute’ sovereignty theorised by Hobbes, can be seen as mixed up with his fear of the threat of ‘royal absolutism’ associated with the reign of James II, the idea that a Catholic monarch would overturn the rule of law, jettison parliament, govern by standing army and persecute Protestants. More recently Wootton and others have contested Laslett’s dating of the writing of the Second Treatise. Wotton argues that ‘it is almost impossible to make sense of the Second Treatise as a work written in 1679–80’. He contends that the ‘Second Treatise is obviously a work written in defence of revolution, and yet supporters of Shaftesbury in 1679–80 were not thinking in terms of revolution: their concern was to demonstrate the urgent need for Exclusion, and the legal right of King-in-Parliament to determine the succession’ (Wootten 1993, 50). What is meant by ‘revolution’ here needs to be carefully identified. Ball elucidates that the idea of revolution meant something quite different for Locke and his contemporaries from its meaning for us. They ‘understood a revolution to be a coming full circle, a restoration of some earlier uncorrupted condition; we understand it to be the collective overthrow of an old regime and the creation of an entirely new one’ (Ball 1997, 41). Whether Laslett or Wootten is correct about the date the Second Treatise was written, it remains the case as Dunn bluntly states, that ‘the Two Treatises is a work principally designed to assert a right of resistance to unjust authority, a right, in the last resort, of revolution’. It was a work that ‘attacked the pretension of absolute monarchy and … drew firm conclusions from this attack about the constitutional limits on the prerogative powers of the King of England’ (Dunn 1984, 28).

The first question to address here concerns whether one can attribute a conception of sovereignty to Locke at all, given that he did not use the term as a political concept at all in the Second Treatise. Gough takes the view that Locke deliberately ‘avoided the term “sovereignty”’ (Gough 1963, 127). Locke does refer to ‘Sovereign’ and ‘Sovereignty’ in relation to the individual that is born free and rational (II section 61). He uses the term ‘absolute power’, which is sometimes regarded as a synonym for sovereignty, for instance to argue that absolute power is utterly inconsistent with the notion of the free and rational individual who holds pre-political rights derived from natural law (II sections 17, 23, also 4, 108, 115). Absolute power is identified by Locke with absolute monarchy, and by ‘absolute’ he means the much simpler ‘arbitrary government’ than the philosophical points about sovereignty made by Bodin and Hobbes. Locke is an interesting figure in this intellectual tradition because, while on the face of it ‘sovereignty’ is not one of his key terms, his work is very important in the history of the concept.

Locke does use the term sovereignty in several places in the First Treatise. The sophisticated awareness of the meaning of the term that he demonstrates in these examples, reinforces the view that the general absence of the term in the Second Treatise is intentional. For instance in section 64 of the First Treatise Locke claims that the injunction, ‘Honour thy father and mother, cannot mean an absolute subjection to a sovereign power’. It derives, he says, from ‘an eternal law’ only about parents and children, and so cannot be an analogy with political power. In section 68 Locke discusses the way in which ‘the unlimited and undivided sovereignty of Adam’s fatherhood’ refers to a natural paternal power only. In section 75 he maintains that ‘fatherhood and property [are] distinct titles to sovereignty’.

Some Locke scholars would attribute the absence of the term sovereignty in his Second Treatise not to deliberate avoidance but to the essentially pragmatic and political character of his work, arguing that he was not attempting political philosophy but was doing a kind of political theory which is much less abstract. A case can be made for thinking that this is not the only reason. Again, some historians of political thought would take the view that we cannot, without anachronism, discuss Locke’s theory of sovereignty if he did not use the term. We create inaccuracies and misunderstandings about writers’ work, and impose views they did not hold, if we use terms to discuss and evaluate their work that they did not employ themselves. For example Karl Popper famously accused Plato of developing a totalitarian theory, a term only invented in the Cold War in the mid-twentieth century. Popper has famously been berated for doing so. However, there are strong grounds for considering that Locke has a conception of sovereignty, so long as we are careful in clarifying what we mean by saying that. A case will be made here that crucial to Locke’s theory is a fully intentional conception of sovereignty that is formal, powerful, and ingenious in the following way. Locke can be understood as splitting the ‘supreme power’ between a constituent meaning (that resides but is normally dormant in the people) and an ordinary meaning (located in the legislative branch of government under normal conditions). This crucial distinction, together with his fundamental commitment to the priority of pre-political individual rights, means that there can be no meaningful collective rights in Locke’s schema. He is thereby able to put forward a form of popular sovereignty that successfully, at the same time, establishes narrow constraints on and for government, allows for a right of resistance, prevents the emergence of a populist common good, and is a defence against absolute monarchy.

The case for regarding Locke as having a conception of sovereignty, even if only covertly, is strengthened by evidence discussed by Ivison, locating Locke’s theory in the context of the implications of the Westphalia treaties and the key debate in early modern political theory about empire. Ivison notes that ‘Locke was writing in the immediate aftermath of the treaties of Westphalia. These treaties were intended to tie the various European states into a system of reciprocally guaranteed security by minimising the grounds for interferences in each other’s affairs, in essence, by guaranteeing their territorial sovereignty, but it could at least be regulated by a principle of non-interference’. In contrast, outside Europe, ‘in areas where no sovereign states (or civil societies) existed … states could pursue their extra-territorial expansionist ambitions without necessarily upsetting the balance of powers within Europe’. (Ivison 2003, 96). Westphalia established a settled agreement at the same time as empires were developing and the potentiality of accruing European wealth from foreign parts was beginning to be systematically realised. It is no accident that the two things were happening at the same time. As Ivison puts it, ‘[i]n short, Westphalia helped constitute not only the international system of states, but also the sovereignty of the states themselves; that is, their exclusive and pre-eminent right to govern their territories and the populations therein’ (Ivison 2003, 96).

Taking this argument a step further and comparing Hobbes and Locke, Keal highlights the difference in the role played by natural right in their theories of sovereignty. He says, ‘Hobbes’s concern over natural rights was, in part, with the obstacles they posed for transferring the rights of European peoples to a sovereign’. However, for ‘Locke it was a matter of whether whatever natural rights inhered in the state of nature were an impediment to dispossessing Amerindians of their land’. The net result was the same for indigenous peoples, though, for in both cases, the effect ‘amounted to a loss of rights for non-Europeans; the absence of civil society justified both the assertion of sovereignty, albeit without their consent, over non-Europeans and the dispossession of their lands’ (Keal 2003, 80).

As well as there being a strong case for arguing that Locke has a conception of sovereignty as regards political society, his theory also sets out the paradigm of liberal individual sovereignty in terms of the autonomy, freedom and power of the individual. Moreover, Ivison again locates this development in early modern debates about empire. He registers that ‘the connection between liberalism and imperialism is not merely chronological but metaphysical’. He argues that ‘the analogy between the sovereign state and the sovereign [autonomous, rights-bearing] individual acting on the basis of their natural rights, constrained by the recognition of the basic rights of others (but not much more than that), represents an influential vision of liberal freedom’. He also shows that another aspect of ‘the deep connections between liberalism and colonialism trades on the apparent paradox of liberal universalism’, namely, ‘how universalistic premises applied to politics’, for instance, ‘that every man is naturally free and possesses “natural political virtue” … can result in particularistic and exclusionary practices and institutions’ in colonial practice (Ivison 2003, 98).

It is worth exploring this issue a little further, since conceptualising colonial expansion was of importance to Locke and can be seen as one of the contexts in which he developed his theory of sovereignty. Ivison outlines three lines of argument that were used to justify colonisation in the sixteenth and seventeenth centuries. The argument from conquest ‘tied the extension of sovereignty to the propagation of the Christian faith, and hence the legitimacy of waging war against those who were perceived to reject Christianity and thus the foundation of natural law’ (Ivison 2003, 88). The argument from grace was that the justification of empire ‘rested on the dispensation of a higher authority’. As Ivison puts it, the ‘authority of the prince depended not on God’s laws but upon his grace, and thus if one fell from grace then he might be legitimately deposed by his subjects and replaced with a more godly prince’. This was a Lutheran-inspired argument that contended that ‘no non-Christian … could hold legitimate dominium of his [own] lands’ (Ivison 2003, 89). Thirdly, the argument from res nullius, which had its roots in Roman law, claimed that ‘all “empty things”, including unoccupied lands (terra nullius)’ remained ‘the common property of mankind until put to proper use’ (Ivison 2003, 89). It is well known that Locke contributed to this debate as well as being involved in colonial expansion in America, and this side of his thinking and activities demonstrate a close familiarity with contemporary discussions on sovereignty in relation to both the individual and the polity.

Having addressed the question of whether Locke had a theory of sovereignty at all and made a case for a powerful if covert role for sovereignty in his theory, and sketched the context of arguments about European and extra-European sovereignty, we come to the central terms involved in Locke’s conception of sovereignty. These are ‘trust’, ‘revolution’ or ‘dissolution of government’ and the right of resistance, and the separation of powers, but in order to understand their meaning for Locke it is important to identify a couple of the background points of the more general theory. The crucial categories of Locke’s theory as a whole are ‘individual rights under natural law’, and the two-stage process from the state of nature to government. Individual rights to ‘life, liberty and estate’, as Locke conceives them, are pre-political and trump any claim upon the individual by the state. As Lowe describes, Locke ‘sees the restraints on governmental authority as arising out of the very nature and purpose of the original “compact”’. Lowe continues that Locke’s ‘reasoning extends, in particular, to individual property rights—which is why he maintains, contrary to Hobbes, that the government is never entitled to appropriate an individual’s private goods, land or money without his consent’ (Lowe 2005, 189). The transition from the state of nature to government is achieved through the intermediate mode of civil society. The first stage of the process, from the state of nature to civil society is arrived at through the consent of each person. In the second stage, from civil society to society under government, the choice of government is accomplished through majority decision. ‘Political society’ is arrived at when any number of men in the state of nature voluntarily enter into society to make one people, one body politic under one supreme government, and authorises the legislative to make laws for it.

Because of the manner in which it is created, Locke is able to claim that this government is entrusted with four and only four specific functions. It is charged with making laws, with punishing an injury done to any of the members of civil society, with exercising the power of war and peace with other communities, and in some ways most importantly with ensuring the preservation of the property of the members of civil society. In Hobbes’s theory individuals are propelled into authorising the sovereign partly through the logic of the ‘ferocious misery’ (Cole 1973, xv) of extreme fear of war and death (and they see a way forward through their reasoning and the laws of nature). For Locke, in contrast, in general terms, civil society and government are entered into through the consent of individuals, with composure, merely to remedy the ‘inconveniences’ of the state of nature, and so civil government is intentionally designed as the opposite of absolute monarchy. For Locke, absolute monarchy is totally inconsistent with civil society, and limited and conditional government is the only form compatible with ‘individual rights under natural law’.

Coming now to the features of sovereignty in the Second Treatise, Locke’s conception of popular sovereignty is guaranteed and safeguarded by the notion of trust, a specific right of resistance linked to ‘revolution’ and the ‘dissolution of government’, and the separation of powers. Trust is the primary condition that must be satisfied for legitimate government to occur, according to Locke. Government is conditional on trust. Locke is very clear that government in a civil society can only operate on a trust basis. It follows that the only powers the government has are ‘fiduciary’ powers, a legal term given political significance which implies that powers are given according to a contract, and on the basis of trust. In consequence Locke’s argument is that the powers of government are revoked if the trust is broken. The reason Locke specifies this fiduciary character of government power is to ensure a restraining logic on the state. The state can develop no overall object or purpose or aim or moral value of its own, separate from the individual people who make up the body politic in civil society. It follows from this that Locke places, as Ashcraft (1994 228) puts it, a ‘structural constraint’ on the exercise of self-interest, which is allowed free reign between individuals operating in a market society and owning private property, but which is forbidden in the realm of government.

It is in the light of this distinction that we can understand Locke to be employing the term ‘common good’ only in a very weak sense. Locke is intent upon prohibiting a ruler who imposes their own interest over that of the individuals with their pre-political rights. Ashcraft makes the point that ‘with respect to the exercise of political power, not only will the common good always take precedence over self-interest but, also, government will have to be constituted in such a manner as to rule out a Hobbesian sovereign or a divinely instituted monarch who retains an interest which is distinct and separate from that of his subjects’ (Ashcraft 1994, 228). The aim of the term ‘common good’ is not to specify a substantive good but only to disbar the imposition of self-interest by a ruler. The force of Locke’s emphasis on trust, as a key conception in his theory and underpinning this negative sense of ‘common good’, is that it provides for him the only acceptable means by which individuals, with their pre-political rights, can accede to being governed and can protect those rights.

The effect of Locke’s conception of government on trust is to secure the sovereignty of the people, which is the perpetual residual power of the people to change the personnel of government and reshape the type of government. Although Locke’s theory appears to be ambiguous in referring to both the people and the legislative power as holding ‘supreme power’, the difference is actually quite clear in this context. Locke argues that the supreme power of the legislative is only conditional, dependent on observing is fiduciary nature. Otherwise ‘supreme power’ reverts to the people, in civil society.

Locke does not make it clear whether the trust relationship between people and government is part of the original compact, or a continuing understanding between governed and governors. Locke suggests, rather than demonstrates, that it is both. The trust relationship is referred to as originating in the compact of society, giving the governed an identity. But it is also continuously maintained, because the governed go on existing and go on entrusting. ‘Trust’ is not a thing given once and for all: it is by its nature an on-going process.

Having outlined Locke’s theory of trust, we turn to his understanding of the right to resistance and the dissolution of government or revolution. Wootten highlights the radical character of Locke’s theory here when he notes that Locke’s ‘conservatism was deeply subversive’ (Wootten 1993, 48). Government is conditional on trust. It is also limited by the specific right to resistance, which all individuals retain when they enter into the relationship with government. The government—and Locke means by ‘government’ all the branches of it taken together—can be dissolved when it acts contrary to the trust placed in it. For if government is not preserving and protecting the people, their liberties and property, then it is going against what it was set up to do. Power then reverts to the people, who can then empower a new legislative and executive. This process can occur, according to Locke’s two-stage process, without reversion to the state of nature.

Crucially, it is the people (the public, the community) who decide when a breach of trust has occurred and how the dissolution is to take place. This is the flip side, according to Locke’s theory, of the way in which it is the people who granted power and entrusted government. In resisting and dissolving government, the people trigger the performance of their sovereignty, their residual supreme power to recognise the actions of a government as a breach of trust. The act of abolishing a government and establishing another, is the same as the people using their ultimate right to resist and to revolt. The same action means these two things. However, Locke drew back from the most radical interpretation of this resistance theory. For although his individualistic theory comes close to justifying anarchy—the idea that no government has the right to infringe individual liberties and rights—Locke does regard government, if properly arranged and qualified by the trust condition, as beneficial. He judges that there are advantages to be gained from government, if properly constituted, in terms of creating a settled order for the expression of individual rights. In cases of dispute, the final appeal is to God, Locke states. In using this construction Locke can be taken as giving a coded message understood at the time as representing a call for revolution.

Locke’s theory leaves a series of questions unanswered. For instance, by what mechanism are the actions of the government to be evaluated? Who will judge if the legislative or executive act contrary to their trust? At what point do infringements of the trust, in abuses and mismanagements of power, become sufficient to warrant revolt and dissolution? Locke makes the enigmatic assertion that the people will judge. The ambiguity of this answer lies in the problematic relationship, for Locke’s theory, between the people and the individual. Although all the people as a whole, or the majority, must rise up in order to make the right of resistance effective, nevertheless ultimately every man must judge for himself, Locke contends, because the right of resistance is in the final analysis a right carried by individuals, not by a group. Furthermore, to overcome the tension between a collective evaluation to resist and individual judgment, Locke relies on an unsubstantial argument. He maintains that the people have common sense and will be able to discriminate and thus judge when acts amount to persistent and serious infringements, and thus when they deserve to be recognised as forfeiting the trust. Locke also says that if only a minority is in dispute with the executive, then the majority decision should hold.

The tension between ‘the people’ and ‘the individual’ that leads to an uneasy majoritarianism is inherent in Locke’s key ‘supremacy of the people’ principle. His version of the ‘supremacy of the people’ falls far short, by comparison, of the robust affirmation of the common good that it represents for instance in Rousseau’s work. The spiritlessness of Locke’s argument here can be accounted for in different ways. Two of the most plausible explanations are that Locke was afraid to spell out any more explicitly the terms of revolution in case his work was regarded as inciting treason, and that Locke was elitist enough to hold privately that it would be leading figures in politics, law and business who would decide the matter. Certainly, Locke was no democrat. Locke makes explicit in section 149 that the supremacy of the people is not to be translated into a principle of extended or universal suffrage, for their supremacy is ‘not as considered under any Form of Government, because this Power of the People can never take place till the Government be dissolved’. As Barker notes, Locke ‘stands on the whole for the Whig grandees, entrenched in the House of Lords and influencing the House of Commons’ (Barker 1971, xxvi). Franklin confirms that Locke’s theory ‘did not originate in any particular zeal for political democracy’ (Franklin 1981, 1). He observes that ‘in Locke by clear implication, the test of membership [for citizenship with the franchise in the political community] is roughly equivalent to the forty shilling [property] freehold as it existed’ at the time (Franklin 1981, 125).

In his chapter in the Second Treatise on the Dissolution of Government, Locke lists a number of scenarios that set out the conditions for the termination of government. These come down to two grounds on which the government can be dissolved. According to Locke, on the people’s side, the government is abolished if limits were placed on it, such as on its duration, which have now been reached. On the government’s side, power is rescinded if by miscarriages of its authority, either by the legislative or the executive, it’s trust is forfeited.

Along with the notion of trust and the right of resistance, the third feature of Locke’s theory of popular sovereignty is the separation of powers. For Locke, government is conditional upon its maintaining the trust, and is limited by the specific right of resistance. The rights of the people are further safeguarded by the separation of powers. Locke comprehends the organisation of political life as a system of powers. He specifies the government powers that are separated as three in number: the legislative, the executive and the federative.

The legislative is the primary form of government power of the separated powers. It is the ‘supreme power’. Its supremacy lies in its power to make laws, for as Locke says, ‘for what can give laws to another, must needs be superior to him’. The executive and federative powers are only powers to execute, implement and administer laws, but not to make laws. The legislative has an ethical authority based on our right to entrust it. According to Locke’s theory we set up and take upon ourselves an obligation to obey the legislative power. When it is functioning properly—according to trust—we owe it legitimate obedience. So the legislative is ‘supreme’ within the terms of the trust, but if it forfeits that trust, it loses its supremacy and that supremacy reverts back to the people. As Locke precisely formulates, ‘while government subsists, the legislative is the supreme power’. Indeed Locke goes so far as to argue, in section 212 of the Second Treatise, that the legislative is the soul that gives unity to the commonwealth and represents the one will of all. But Locke is not, thereby, a general will theorist like Rousseau. He is simply observing that when individuals come together politically they create a power which is available to them in institutional form for the purposes of their association, and which finds its first and highest form in the making of law.

While Locke describes the legislative branch of government as the ‘supreme power’, this legislative branch is disqualified from being a candidate for comprehensively holding sovereignty, in Locke’s system, for several reasons. First, the ‘supreme power’ of the legislative is so heavily conditional on the fulfilment of the trust placed in it, ‘being but a delegated Power from the People’ (section 141) and ‘only a Fiduciary Power to act for certain ends’ (section 149), that it has a derivative rather than independent status. The emphasis in Locke’s argument is on the liability and limitations of the legislative rather than on its positive features. Secondly, the legislative is a law-making body under the public rule of law to make ‘promulgated standing laws’ in line with its obligation to natural law, and has no other role. As Gough notes, Locke ‘reserved the word “arbitrary” for power that contravened the law of nature, and avoided calling the legislature “sovereign”’ (Gough 1973, 120). Thirdly, to insist on calling the legislative branch of government the location of sovereignty would be to invite the retort that, then, sovereignty is divided between the legislative and the people, which is impossible according to Locke.

Fourthly, the legislative branch, while ‘supreme’ is nevertheless only one of the three separated powers, and so cannot be the undisputed location of sovereignty. Locke is adamant that the logic of the theory is that the three powers are separated and not united. Fifthly, the supreme power of the legislative is merely functional, and is trumped by the moral status of individual pre-political rights, according to which revolt can be morally justifiable. Barker argues succinctly that ‘[w]e are generally prone to think of Locke as the exponent of the Social contract. It would be more just to think of him as the exponent of the sovereignty of Natural Law’ (Barker 1971, xvi). In Locke’s fudging of the term ‘supreme power’—used to refer to both ‘the people’ and to the legislative’s law-making power—it is clear that, taking a step back, the underlying and indispensable source of sovereignty is the rights accorded to individuals by natural law. As Gough notes, for the legislative to carry sovereign status would mean both that ‘the validity of its enactments is unchallengeable’ and that ‘it can change the constitution itself by ordinary legislative process’ (Gough 1963, 126), and Locke is perfectly clear that this is not the case.

Franklin usefully presents Locke’s theory of sovereignty as the intricate solution to a contemporary dilemma in constitutionalism. Leaders of the opposition in 1642 had trapped themselves into asserting the validity of overthrowing a king while at the same time accepting that the king had independent powers from which he could not be deposed. The ‘constituent power of the people’ had been identified with Parliament (as an Estates assembly) as a representative institution while the king, seen as the executive branch in a mixed constitution, was agreed to hold independent powers. The tension in the inherited theory of sovereignty between ‘the ultimate supremacy of the people’s representative and the independence of the king’ (Franklin 1981, 7) could not be resolved. Locke adopted the position that there could, after all, be a ‘coherent justification of resistance in a mixed constitution’ (Franklin 1981, 123), if the constituent power of the people was separated from the legislative branch of government, and if the executive power of the king was made subject to the supreme power of the legislature. In this way Parliament lost its equivalence with the people but gained a pre-eminence over the executive branch of government. At the same time the supreme power of the people as sovereign, to dissolve an illegitimate government, was clarified. Franklin argues that Locke’s ‘clear and consistent distinction between constituent and ordinary power’, served to establish the key tenet underlying the modern tradition of constitutionalism. It provides a limit not just on kings overstepping their executive powers, but also on parliaments acting beyond their remit. For it ‘establishes the principle that no ordinary representative, no matter how democratically elected, may alter constitutional procedures, or freedoms peculiar to the system that are constitutionally reserved to individuals, without the consent of the general community’ (Franklin 1981, 124). While Franklin’s reading of Locke through this distinction between constituent and ordinary power is helpful, it still leaves exposed the tension between them which lies at the heart of Locke’s theory.

However, in day-to-day terms for Locke, popular sovereignty is represented, in effect, in the ‘supreme power’ of the legislative body. In practical terms in the commonwealth, Locke is claiming the priority of Parliament over a monarch and over the possibility of royal absolutism. In this weak sense Locke’s conception of sovereignty does specify unity in an abstract way as in Hobbes. But Hobbes places much greater emphasis on that abstract, analytical account of sovereignty. Locke is much more interested in the negative point of ensuring that government does not overstep its brief of protecting the liberties and property of individuals as individuals. According to Locke, the legislative body should be representative, though not necessarily with a very wide franchise. Moreover, he does not think that the legislative body needs to be in continuous existence. Notwithstanding his antipathy to a powerful executive, Locke allows that the executive can often carry on normal business and provide continuity.

The executive power isa lesser power because it cannot make law. It acts on prerogative or discretionary powers, deciding how the laws of the legislative apply to particular cases, and making urgent decisions when the cumbersome machinery of the legislative is too slow and clumsy to act quickly. There is a double trust involved in this branch of government—the trust imparted to agree to government in general (in the legislative), and the trust bestowed from the legislative to the executive branch of government.

In specifying the federative as a separate power, Locke indicates—without implying the modern fully-fledged internal/external dichotomy—that he thought that the external aspect of sovereignty was important enough to be highlighted in its own right. Indeed, he shows a clearer awareness of the value of external sovereignty than he does of internal sovereignty. Nevertheless he makes it plain that external sovereignty is subordinate to the legislative power, that is to internal sovereignty. The federative power is the power of the community directed outwards, both in amicable relations with other political communities and in protection of the commonwealth against aggression. Locke does not, however, set out a clear moral imperative to seek peace. Like the executive, it operates on prerogative powers. The federative power is responsible to, entirely accountable to, fully answerable to the legislative. But in practice the federative power is in the hands of the executive branch of government to allow for quick decisions, and because it is less capable than is the executive of being directed by antecedent laws of the commonwealth. The specific responsibilities of the federative power concern international relations and diplomacy—in practical terms, the power to make war and peace, leagues and alliances and all other transactions, with all persons and communities outside the commonwealth.

A brief comparison of Locke’s theory of the separation of powers with the system established in the USA (perhaps the clearest case of a modern liberal constitution) highlights the distinctiveness of Locke’s understanding. In the American example of the separation of powers, there is a more systematic arrangement of disaggregated powers than is found in Locke. Overall, in the American system the separated powers must be in different hands, whereas in Locke’s system of separated powers, all three powers could in practice rest in the same hands. In the American system the doctrine of the necessary separation of powers in practice as well as in theory, along with the written constitution, becomes the key principle in its own right. In contrast, in Locke the proper functioning and just exercise of these powers derives directly from the primacy of the notions of trust, fiduciary powers, and the law of nature.

Moreover, in the American system the separated powers are balanced against each other horizontally, whereas in Locke’s system, the legislative is superior to the executive, which is in turn superior to the federative, in a hierarchical ranking, and the powers do not operate as a check upon each other. In the US arrangement, the separated powers cannot operate effectively without the cooperation of other powers, and if one branch of government is corrupt other branches act to counterpose its influence. In Locke, the whole government could fall if one branch fails its trust. In addition in the American system the federative power is not a separate power but is part of the president’s executive power, and the judiciary is the third separated power. For Locke, although the judiciary must be impartial and its pronouncements known and authorised, it is not a separate power and falls under the remit of the executive. In sum, the American system denies sovereignty to any one branch of government, while in Locke’s schema sovereignty in the sense of the ‘highest’, law-making, power is functionally held by the legislative branch, but only on trust, and ultimately and meaningfuly in the ‘individual rights under natural law’.

To conclude, sovereignty finally lies in Locke’s system in an ingenious piece of logic. Ultimately sovereignty rests with the residual powers held by the people in perpetuity, and so which they never give up. But they hold this power individually, unless it is triggered by a resistance to government and a dissolution of government. In this way Locke’s sovereignty is ‘popular’ only in a formal and foreshortened sense. Locke has a profound distaste for individuals taking on a collective, group persona as a strong part of their identity, and so only legitimises the utilisation of this perpetual residual power as an extreme measure. Sovereignty, for Locke, certainly does not function as a collective political identity. For the most part Locke’s persons in civil society operate as individuals in the ‘private’ sphere. Because of his individualist stance, Locke is reluctant to discuss either obligation or sovereignty, because he does not want to emphasise duties but rather rights, and because sovereignty implies a unified group identity in which individuals are subordinate to the group. However, he does consider that one’s legitimate obedience is owed to the legislative so long as that branch of government operates within the trust, and he does have a strong though reluctant and largely implicit sense of popular sovereignty in the notion of the right of resistance specifying a rigorous limit on the scope and actions of government.

The residual power of the people (understood as a collection of individuals and deriving from natural law) to abolish the government is what Locke’s conception of popular sovereignty ultimately amounts to. This minimalist and weak conception stands beside Locke’s fierce and positive championing of pre-political individual rights. Furthermore, while Hobbes’s conception of sovereignty results in individuals being radically equal as ‘subjects’, in Locke’s conception individuals in a sense become citizens (or at least some of them—propertied males—do), but more meaningfully they remain individuals. In sum then, while Locke does have a conception of sovereignty as a unity, a whole, he denies a notion of sovereignty as a collectivity. For Locke we are individuals first and foremost, and sovereignty exists only in order to further the rights of individuals. Locke’s championing of individualism is necessarily a stronger element in his political theory than the notion of sovereignty. Indeed, Locke’s individualism sits uneasily with his majoritarianism and with the principle of right of resistance as a group, and his inclinations are not towards democracy. The upshot of Locke’s theory is that the collectivist resonances of the conception of popular sovereignty are the cost he is grudgingly prepared to bear in order to be able to reinforce the rights of the individual with a right of resistance.

Locke utilises two general features of sovereignty in his conception. In order to confirm the ultimate and performative ‘supremacy of the people’ over government, Locke reluctantly takes on the idea of a weak popular sovereignty designating the unity of the political community. As Laslett circumspectly observes, ‘this residual power must be called Locke’s idea of what we now think of as popular sovereignty’ (Laslett 1965, 134). The ‘supreme power’ of the people is exercised, under strict limits and on a conditional basis, by the legislative branch of government. Sovereignty also serves to seal the relationship between rulers and ruled, but only on the proviso that the relationship is established through the trust extended in a one-way direction from the latter to the former. It is a conception of sovereignty that is wholly negative, in that its only purpose is to confirm the pre-eminence in political society of something else, namely pre-political individual rights. Indeed, Locke turns the concept of sovereignty on its head, by positing the sovereignty of (necessarily disaggregated) individual natural rights and so rejecting the idea of sovereignty as a political concept. Locke’s grudging acceptance of the role played by sovereignty in his theory is consistent with his approach to all such political concepts and derives from the suspicion he has for any positive outline of the terms of government and political society.

Like Hobbes, Locke is not keen to allow for a political realm of debate about the conditions or moral standing of public policy. Hobbes regarded politics as too unruly and disruptive to be tolerated and all that is left is the public law-making of the sovereign and court politics. For Locke, a vigorous political realm would jeopardise the primacy of individuals pursuing their business and other interests in the ‘private’ realm, and politics in terms of regulating the competition between those interests is left to the political elite to manage. The strength of Locke’s theory of sovereignty is that it places individual rights squarely at the centre of politics. The weaknesses are that it dismisses any positive sense that sovereignty can play in expressing a shared political world, and that its individualism conceals a strongly elitist commitment.

ROUSSEAU

Rousseau was born in Geneva in 1712 but left at the age of fifteen and spent much of his life unsettled, a citizen of no country, and wandering around Europe. The Social Contract was published in 1762, against the background of political despotism and inequality that led, less than thirty years later to the French Revolution. Dent, for instance, cites Louis XV’s declaration of absolute sovereignty in 1766, that ‘[i]t is in my person alone that sovereign power resides … it is from me alone that my courts hold their existence and their authority’ (Dent 2005, 135). The intellectual context of the Social Contract was informed in part by Rousseau’s falling out with Voltaire and the French Encyclopedist, Diderot. He took issue with the philosophes and with Enlightenment ideas such as the sweeping away of superstition, and progress and mastery through the development of empirical knowledge about the natural world. As well as being an early critic of Enlightenment rationalism, Rousseau also had no sympathy with the atheism of Diderot and the philosophes (Cranston 1968, 40).

Rousseau’s philosophical perspective expressed his general conviction that, on the contrary, progress was illusory, the development of civilisation was directly responsible for the corruption of natural goodness and for moral ruin, as well as for the widening of inequality in private property between people. Simple society, freedom and innocence in the state of nature represented the ideal way of life. He also admired the political structure of the Swiss cantons, each of which was a sovereign body in which the male population came together periodically to deliberate and make law, and which together were loosely arranged into a confederation. Contemporary radical ideas of liberal representative democracy were regarded by Rousseau as hostile to the preferred ‘unrepresentative’ direct democracy practised in Switzerland. He also radically opposed the despotic political prescription favoured by the philosophes of appealing to European monarchs as strong rulers who could, in a despotisme eclaire, put Enlightenment principles into practice.

Cranston notes that by the mid-1760s Rousseau ‘had offended almost everyone: Catholics, Protestants, materialists’. In this last phase of his life, ‘as the victim of political and religious intolerance, he was harried from place to place in search of refuge’ (Cranston 1968, 24–5). Gourevitch goes further and describes how, after the publication of the Social Contract Rousseau ‘was forced to flee, and spent much of the next decade on the run or living under an assumed name’ (Gourevitch 1997, ix). The Social Contract on its publication was regarded as a scandalous text, in part on account of its treatment of a civil religion, and was condemned by civil and religious bodies in Geneva and France. Rousseau died in Paris in 1778. Politically, he had an affinity neither with contemporary French despotism, nor with either of the two current progressive strands of thought—identified with the philosophes on the one hand and those in favour of liberal representative democracy on the other. Neither would Rousseau have been in sympathy with the revolutionaries in France who, eleven years after his death used his political theory to provide a vocabulary for their cause.

Like Locke, Rousseau crucially regards the right of the people to be a principle that is prior to the establishment of government. Both also develop the logic that the right of the people, and their freedom, is therefore superior to government. For both theorists popular sovereignty derives from a source outside the state. In Locke the ultimate source of popular sovereignty was the natural rights of individuals that come directly from God. Whether he was a sincere believer or not does not affect the political effect of his claim. In Rousseau the foundation of popular sovereignty is deduced from the unity of the people themselves. In some ways then, Locke and Rousseau are very similar, having an extremely functional attitude toward government, and giving it a purely subordinate and instrumental, limited and circumscribed role in the commonwealth.

But in others ways, the theories of these two thinkers are resolutely opposed. For Locke the most important thing about an individual remains his individuality, whereas for Rousseau the individual is morally redeemed only by taking on a performative role in the sovereign body, participating in the formation of the general will, the definition of the common good in general laws. Indeed for Gourevitch, Rousseau’s status as a political theorist lies in the argument that ‘we are moral agents by virtue of being citizens, or at least members of political societies; we are not moral agents first who then may or may not become political agents’ (Gourevitch 1997, xv). For Locke, freedom is maximised by curtailing government and keeping it at arm’s length, whereas for Rousseau freedom is redeemed positively in society through embracing sovereignty. Locke would regard with horror the vision that Rousseau puts before us, of a transformative public sphere of citizens actively engaged in popular sovereignty by collectively enacting the general will in the name of the common good. Moreover, Rousseau holds that his notion of the common good is not mystical but is plainly intelligible. He contends that, ‘the common good makes itself so manifestly evident that only common sense is needed to discern it’ (Rousseau, 1968, 149). What is distinctive about Rousseau’s conception is that he provides us with the classic statement of a radically popular sovereignty.

Like Hobbes, Rousseau has a robust conception of sovereignty. Both emphasise the benefits of the state as an artificial body, made by the skill of men, not a natural consequence of human life, within which mankind can flourish. The radical nature of theories of sovereignty which sweep away the traditional rights of the priest and the vicar, monarchical divine right, and aristocratic privileges, scandalised readers in both countries. But whereas for Hobbes sovereignty is held by the ruler on the authority, the act of authorising, of the people who compose the sovereign body, for Rousseau the sovereign body and the government are strictly separate concepts. And whereas for Hobbes, sovereignty is most fittingly represented in one man, probably a king, for Rousseau sovereignty must comprise all citizens directly. It cannot be ‘represented’. Moreover, returning to Locke and Rousseau, while Rousseau has a very strong sense of the importance of all citizens having an active public duty, for Locke active public duty does not figure at all in the harmonious running of a civil society. Modern participatory, deliberative or direct democrats draw upon Rousseau, while modern representative democrats draw on Locke.

Rousseau’s conception of popular sovereignty is a very strong and prominent part of his political theory. Gourevitch considers indeed that popular sovereignty is so much the heart of the Social Contract that ‘every issue and argument which Rousseau takes up in the course of the work seeks either to strengthen the case for it, or to ward off possible challenges to it’ (Gourevitch 1997, xxiii). Rousseau has several central chapters in the Social Contract explicitly devoted to sovereignty. The key terms in his theory of sovereignty are sovereignty itself, the act of association (which is the social contract), government, the general and particular wills, general and particular laws, and the lawgiver. The meaning of these terms rests upon the more general importance of right, freedom, equality, morality and will in his political theory, so it is to these notions that we turn first.

The subtitle of Rousseau’s text, Principes du droit politique, indicates the importance for him of the concept of right, and the difference between natural and political right. Cranston notes that Rousseau uses the term ‘right’ in a ‘semi-technical’ sense, ‘to designate the general abstract study of law and government’ (Cranston 1968, 26). The meaning of right in Rousseau also derives from his purpose, in The Social Contract, of writing in a normative and hypothetical vein about what is right rather than simply describing what is (Cranston 1968, 27). The force of this notion of rights in Rousseau’s theory, as law and as normative, lies in the transformative exchange of rights that takes place with the move from the state of nature to civil society. As Cranston sums up, the rights people ‘alienate are rights based on might; the rights they acquire are rights based on law’ (Cranston 1968, 33).

Rousseau regards freedom as meaning political liberty as well as personal liberty. Also, whereas in the subsequent liberal tradition freedom and equality are in tension, in Rousseau’s theory these concepts work hand in hand. For Rousseau, a person can only be properly free if they are participating in public life. As Cranston notes, for Rousseau, ‘to be free means to live under a law of one’s own enactment’ (Cranston 1968, 42). In a line of argument also found in Spinoza, Kant and Hegel, Rousseau maintains that freedom means not just personal freedom to do whatever you want, and indeed he holds that just following one’s appetites does not make you free, it makes you a slave. As Cranston succinctly puts it, for Rousseau, ‘to be free is not to be left to do what you want to do but to be enabled to do what you ought to do’ (Cranston 1968, 41). It follows for Rousseau that freedom entails political as well as personal liberty, and even personal liberty is much greater in the context of laws than in the state of nature. As Cranston observes, for Rousseau ‘[m]en can be both ruled and free if they rule themselves. For what is a free man but a man who rules himself? A people can be free if it retains sovereignty over itself’ (Cranston 1968, 29).

Wokler identifies another important dimension of freedom in Rousseau’s theory. He observes that, ‘[p]erhaps the most tenaciously held theme throughout all of his political writings, and indeed his personal life as well, was Rousseau’s anxiety to avert or escape from ties of domination and subservience, which harnessed persons to their respective stations in life, destroying their liberty. Dependence on men … as distinct from dependence on things, engenders all vices’ (Wokler 1995, 62). Cranston agrees that there is also this meaning of freedom in Rousseau, ‘that freedom is not being subject to any other man’ (Cranston 1968, 41).

Equality is also a key concept underlying Rousseau’s notion of sovereignty. Instead of the sovereign holding power over the ruled, sovereignty consists precisely in the equality between all citizens and of their will and right. As Rousseau puts it, ‘the social pact establishes equality among the citizens in that they all pledge themselves under the same conditions and must all enjoy the same rights’ (Rousseau 1968, 76). Gourevitch signals that, for Rousseau, equality is not simply an end in itself but is a means to establishing political freedom. The purpose of ‘the conventional equality established by all of the parties pooling all of their resources is to render all unearned inequalities irrelevant before the law’ (Gourevitch 1997, xix).

In addition the importance of morality and will and of refuting slavery are very noteworthy in the construction of Rousseau’s early argument in the Social Contract. Rousseau values the will very highly. For him only morality (and only in the context of the state can awareness of morality lead to virtue) can be the legitimate basis of willing something to happen in society. As Strong puts it, in ‘the act of association is created a moral body’ (Strong 1994, 80). In these circumstances, willing leads to an obedience—rather than a bondage—to justice. Indicating the close connection between morality, obligation, and equality, and the transformative nature of the move to civil society, Rousseau maintains that the ‘commitments which bind us to the social body are obligatory because they are mutual’ (Rousseau 1968, 75). In contrast, when obedience is only due to the exercise of force over someone, it is only prudential compliance and has no moral dimension. For Rousseau it is profoundly true that the ‘words “slavery” and “right” are contradictory, they cancel each other out’ (Rousseau 1968, 58).

Coming now to the key terms in Rousseau’s theory of sovereignty, the term sovereignty itself is central to Rousseau’s political theory and it functions for Rousseau, as Dugan and Strong indicate, ‘both normatively and descriptively’ (Dugan and Strong 2001, 331). Again without eliciting a modern internal/external dichotomy, we can see that Rousseau is principally and explicitly concerned with the nature of internal sovereignty. While he does mention foreign relations a couple of times, he explicitly notes in his Conclusion that he has not attempted to comprehensively cover the issues of external sovereignty in The Social Contract. According to Rousseau’s conception, then, sovereignty is enormously positive because it enhances individuals. They remain individuals, but lose the right to all natural liberty in return for civil law and civil liberty. For Rousseau, the benefits of this arrangement far outweigh its disadvantages. He reasons that ‘since each man gives himself to all, he gives himself to no one’, and ‘each man recovers the equivalent of everything he loses, and in the bargain he acquires more power to preserve what he has’ (Rousseau 1968, 61). Moreover, individuals are transformed and enriched by this conversion they undertake. Sovereignty also gives one an identification in the whole. As Strong observes, ‘[s]overeignty is how Rousseau legitimates the use of the first person plural’, the ‘we’ (Strong 1994, 89). Sovereignty also establishes moral relationships between persons, and creates property based on right. That is, sovereignty transforms possession based on force into property based on right. This distinction between force and right is very important in Rousseau’s political theory.

Rousseau also distinguishes between sovereignty as active and the state as passive, as two faces of the same entity, the public world. Thus individuals are citizens when taking part in the sovereignty, and they are subjects when implementing and obeying the particular laws of the government. He argues that ‘the essence of the political body lies in the union of freedom and obedience so that the words subject and sovereign are identical correlatives, the meaning of which is brought together in the single word citizen’ (Rousseau 1968, 138). Rousseau is the first of the theorists studied in this book to offer a full-blooded notion of citizenship, and to see citizenship and sovereignty as intimately linked. As Strong notes, the term ‘citizen’ does not ‘designate only for Rousseau the member of a society or political system’, but comprehends also and ‘more importantly, a being in whom the thought of the common is realised’ (Strong 1994, 76).

Rousseau makes it clear that external sovereignty is subordinate to internal sovereignty. The sovereign body, he says, is not constrained by any fundamental law, not even the social contract itself. But the sovereign body can take on obligations to other nations so long as they do not infringe the contract. Rousseau says, ‘for in relation to foreign powers, the body politic is a simple entity, an individual’ (Rousseau 1968, 63). Controversially, Rousseau holds that acts of declaring war and making peace, the instruments of external sovereignty, are not ‘acts of sovereignty’. Such things are not laws themselves but applications of law, so are subordinate to the prior sovereignty and to the sovereign authority (Rousseau 1968, 71). This is an example, for Rousseau, of how sovereignty has not been divided, of how one implementation of it is inferior to the whole. In practical terms, Rousseau asserts that there must be fixed and periodic assemblies as well as special ones to deal with unforeseen events.

Rousseau emphasises very strongly that sovereignty is inalienable and indivisible. The general will alone can direct the forces of the state in accordance with its appointed end, which is the common good. Rousseau argues that ‘sovereignty, being nothing other than the exercise of the general will, can never be alienated’ (Rousseau 1968, 69). That is, the sovereign, a collective being, cannot be represented by anyone but itself. As O’Hagan notes, one of Rousseau’s reasons against the representation of sovereignty lies in his criticism that in Ancient Greece, ‘popular sovereignty was based on slavery’. The general point is that, for Rousseau, ‘a “pact of submission” between people and rulers’ would be ‘incompatible with the doctrine of the subordination of government to sovereign’ (O’Hagan 1999, 150). Strong notes that Rousseau’s antipathy to representation is not just that it induces passivity. His antipathy derives ‘from the particular nontemporal quality of sovereignty’ (Strong 1994, 91), from its character as an activity rather than a thing. Power may be delegated, but the will cannot be. Because sovereignty cannot be alienated, Rousseau is very much against any notion of representative sovereignty, that is, deputies acting for citizens. Citizens themselves must participate in the public interest. In a true republic, citizens put public duty first. As he says, ‘Sovereignty cannot be represented, for the same reason that it cannot be alienated; its essence is the general will, and will cannot be represented—either it is the general will or it is something else; there is no intermediate possibility’ (Rousseau 1968, 141). For Rousseau, ‘the moment a people adopts representatives [deputies] it is no longer free; it no longer exists’ (Rousseau 1968, 143).

Dugan and Strong also observe that sovereignty cannot be represented because for Rousseau it ‘does not exist in time’ (Dugan and Strong 2001, 331). Dugan and Strong contrast sovereignty in Hobbes to emphasise these active features of Rousseau’s conception. They note that the usual image we have of sovereignty is from Hobbes, ‘a picture of the great benevolent giant severely but gently encompassing the land with the embodiment of regularity’. For Rousseau, however, ‘sovereignty is designed to show precisely the contingent and yet atemporal nature of our relation to a political body’. The crux of the matter is that, for Rousseau, sovereignty cannot be represented because representation ‘gives a temporal dimension to sovereignty’, and so in ‘this sense sovereignty has the quality of an aesthetic object’. Dugan and Strong develop the argument that this aesthetic quality indeed provides the answer to the dilemma of bridging the abstract and the particular in political theory. They pose the question of how political theory is possible, since it is ‘a representation of a generalised political context or set of issues, but this generality removes individuals from the present’. Their answer lies in the notion that an ‘aesthetic object, on the other hand, is at once fully present and particular, but also universal in scope’ (Dugan and Strong 2001, 332). In answer to the further question of how this relation can be established in the political realm, they contend that it is precisely that the question of sovereignty is, ‘how is creativity possible in the political realm’ (Dugan and Strong 2001, 333).

Reinforcing again the performative and active character of Rousseau’s conception of sovereignty Dugan and Strong also raise the question of language as crucial to the exercise of sovereignty. They argue that a ‘society that has a language for political life will value eloquence over the use of public force’, and they distinguish between the ‘language of decree’ and the language in politics that acknowledges others (Dugan and Strong 2001, 353). In Rousseau’s sovereign deliberative assembly they see the operation of a crucial interplay of reciprocity. They argue that ‘without the possibility of recognising others in one’s own practice of judgment, one’s human potential as a social creature is unfulfilled’ (Dugan and Strong 2001, 354). It is this line of argument that leads Cranston persuasively to conclude that Rousseau is more accurately described as a republican, a champion of popular sovereignty, than as a democrat (Cranston 1968, 31).

Sovereignty is indivisible for Rousseau in the sense that the general will is not necessarily unanimous, but in order to be universal, all votes must be counted. Nevertheless in practice the majority vote can then hold for all. Cobban usefully distinguishes between the kind of indivisibility that sovereignty has in Rousseau’s theory from that found in Hobbes. He argues that ‘Rousseau appeals to the nature of sovereignty’ whereas ‘Hobbes depends on the result of dividing it’. Sovereignty in Rousseau is indivisible for the positive reason that it is the expression of the general will, while for Hobbes sovereignty is indivisible for the negative reason that, if divided, its unity is dissolved (Cobban 1964, 73).

Wokler notes the direct connection between Rousseau’s conceptions of liberty and equality, and his idea of sovereignty. He says, ‘[t]ogether with modern advocates of participatory democracy who so often turn to him for inspiration, Rousseau supposed that the authority of every sovereign—which like Grotius, Hobbes, and Pufendorf he held must be absolute—was legitimate only if each citizen took a fully active role within it’. He continues that ‘[h]erein lies the kernel of his notion of popular sovereignty, whose links especially with his ideal of liberty in the state, form the corner-stone of his political doctrine’. Wokler concludes that ‘Rousseau’s conjunction of both liberty and equality with sovereignty comprises a strikingly original element in his writings’ (Wokler 1995, 63).

Rousseau also explores the limits of sovereign power. He holds that sovereign power is restricted to matters that are the concern of the whole community. Therefore the sovereign body cannot impose a burden which is, by its own definition, not necessary to the community. Commitments to the social body are obligatory because mutual, and the general will must be general in purpose as well as in nature. However, the sovereign body alone is judge of what is of such concern. Underlying this line of argument is the sense, as Bertram explores, the notion that ‘sovereign power is, in its essence, self-limiting’. There is for Rousseau ‘a mutuality and a reciprocity about sovereign acts’ in that ‘I impose no condition on you that I am not also prepared to accept for myself’. Moreover, there is no ‘pre-established restriction in principle, to what the citizens may legislate on’. Bertram concludes that ‘sovereignty—properly constituted—poses no threat (and indeed is essential to) individual autonomy’ (Bertram 2004, 110–11).

The second of Rousseau’s key terms is the act of association in the social pact that establishes equality among citizens, and gives them all the same rights. Political society and rule are for Rousseau conventional, not natural. Every act of sovereignty, that is, every authentic act of the general will, binds and favours all the citizens equally, so that the sovereign recognises only the whole body of the nation and makes no distinction between any of the members who compose it. As Wokler notes, ‘[w]hile for Hobbes liberty is exchanged for authority in men’s transfer of their natural rights to their ruler, for Rousseau, provided that citizens rule themselves, liberty is won within the state rather than protected by it’ (Wokler 1995, 62).

The transition from the state of nature to the body politic entails a ‘civil act’ that Rousseau says ‘presupposes public deliberation’ (Rousseau 1968, 59). This is the social contact. Far from destroying natural equality, the social pact substitutes a moral, lawful equality for the physical inequality imposed on mankind by nature. From being unequal in strength and intelligence, men become equal by covenant and by right, says Rousseau. By this act of association, each puts into the community his person and all his powers under the direction of the general will. Cranston highlights the significance of this act when he says, ‘by the deed of the social contract itself, to which everyone subscribes and pledges (there is no question of a majority here; you either subscribe or you are not in civil society at all) everyone agrees to accept the decision of the majority in the formulation of the law’ (Cranston 1968, 37–8). Gourevitch reinforces the role of human agency here in identifying that the meaning of the social contract for Rousseau rests in its provision that ‘legitimate political rule is not based directly on either a divine or a natural title to rule, but must be ratified—“authorised”—by the consent of the ruled’ (Gourevitch 1997, xv).

Thus three consequences follow from the ‘civil act’. First this act creates an artificial and collective body, composed entirely of the individuals who make it up, who can then ‘act in concert’ (Rousseau 1968, 60) to use their collective powers. In this way Rousseau’s social contract is not a deed that stands for the one and only political act of the people, as in Locke (apart, for Locke, in the eventuality of resistance and deposition). For Rousseau the ‘civil act’ triggers an on-going process by an active citizenry. The sovereign body is not always in existence but comes together periodically to perform its role. Sovereignty for Rousseau is an activity and a performance, not a ‘thing’, while for Locke sovereignty is primarily a technical requirement. Second the ‘act of association’ assures the unity of that body, that public person, that republic, that city, that body politic. And third the act creates a relationship between being a member of the state and the sovereign. Rousseau says, ‘There is only one [public] contract in the state—that of the association itself, and this excludes all others’ (Rousseau 1968, 145). Therefore the relationship between the people and government (the second stage of the two-stage process) is not formed by contract. It is an act of the sovereign body that establishes it. Initially, this act establishes a law enacting government of a certain type. Then the law is executed through the magistrates nominated by the people.

Rousseau identifies a potential problem in his logic so far, in that the sovereign body is making an act of government before government exists. People in this circumstance are acting as a prince or as magistrates, confusing the strict dichotomy between sovereign body and government. Rousseau’s solution to this problem is to say that in order to be able to set up government, the sovereign transforms itself just for a moment into a democracy. In a founding myth it breaches the dualism. This act of association, the social contract, only happens once. After the state is institutionalised, residence implies consent, Rousseau maintains. To inhabit the territory is to submit to the sovereign. And after the act of association the majority votes holds for all.

‘Government’ is another of Rousseau’s key terms. Acts of popular sovereignty that produce general laws are distinguished from the role of government in administration and executive management. As Cole notes, governments, ‘including representative assemblies … can enact only decrees’ and ‘cannot ever make laws’ (Cole 1973, xxviii). Locke had a two-stage contract process, the contract of the consent of each to transform the state of nature into civil society, and the contract of trust to create government within civil society. Rousseau also has a two-stage process, but he is insistent that only the first part, the transition from state of nature to the republic entails a contract. He states that ‘the act which institutes the government is not a contract but a law’ (Rousseau 1968, 146). Government exists only through the sovereign—it does not exist independently. As Rousseau puts it, the government ‘has only a kind of borrowed and subordinate life’ (Rousseau 1968, 106). Gourevitch highlights the difference between the sovereign body and government, observing that ‘government is merely the minister of the sovereign people’ and so ‘it clearly follows that every government is provisional’. Gourevitch surmises that ‘the sovereign people may, and, Rousseau argues, should regularly call it to accounts and renew its mandate’. Gourevitch notes that it ‘is easy to see how this doctrine … caused the Social Contract to be condemned by the Genevan as well as by the French political authorities’ (Gourevitch 1997, xxiv).

Government is established by nomination. As noted, the sovereign body, for this one exception only, give up their character as dealing in purely general laws as a collectivity, and settle on particular people to act as prince or magistrates. Both legislative and executive powers are necessary to the body politic, says Rousseau. The legislative power belongs solely to the people. Executive power cannot belong to the generality, since it involves the exercise of particular acts with reference to particular people. It executes, implements and administers the laws and maintains civil and political freedoms. Like Locke, Rousseau asserts the pre-eminence of the legislative power over the executive. These executive powers are undertaken in Rousseau’s schema by a ‘prince’ or by ‘magistrates’ or by ‘governors’. This executive power mediates between the sovereign generality and the people as individuals, that is between citizens and subjects.

According to Rousseau, and as with Spinoza, no one kind of government is best suited to all nations and communities. He says we ‘must assign to each people the particular form of constitution which is best, not perhaps in itself, but for that state for which it is destined’ (Rousseau 1968, 97). Rousseau argues that the preeminent form of political community, however, is a republic, a state in which all citizens partake of active citizenship. He holds the view, unusual to modern readers, that republics can be monarchies, aristocracies or democracies or mixed types. These different types simply refer to how many hands the sovereign collectivity puts the government into. Therefore all forms of government are subordinate to the sovereign body. Rousseau thus holds that the sovereign body is not a democracy. It is a unity of all, whereas democracy is only a form of government. Therefore, prior to the establishment of any government, there must be an act of association by the sovereign collective, the general body, which establishes a unity and legitimises the particular form of government. The sovereign and government are two distinct artificial persons, says Rousseau.

Gourevitch makes a case that looking at the political work as a whole, Rousseau rejected both pure or direct democracy and absolute monarchy, because both distort the necessary balance between sovereignty and government. The first expresses a usurpation by the people while the second results from an encroachment from the government side. Gourevitch argues that Rousseau’s preferred form of government was an elective aristocracy, ‘because it combines the strictest requirement of legitimate political rule, election, with the most natural claim to rule, widom in the service of the common good’ (Gourevitch 1997, xxiv–xxv).

The idea of the tendency towards degeneration and decay in the body politic plays an important part in Rousseau’s theory, as it did in Machiavelli’s, whose work Rousseau admired. Just as the particular will acts unceasingly against the general will, so does the government continually exert itself against the sovereign. It is natural and inevitable that all political communities become corrupted and degenerate. As Gourevitch notes, for Rousseau there is ‘a tension between the good of the whole and the good of its parts, and even the most satisfactory resolutions of these tensions are fragile’ (Gourevitch 1997, xxxi). Rousseau argues that it ‘is not only through the law that the state keeps alive; it is through the legislative power’, that is, through the common good freshly enacted by the sovereign body (Rousseau 1968, 135). The contrast between Locke and Rousseau is instructive here. As Cranston notes, ‘Locke is not worried, as Rousseau is, by corruption; and he does not hanker after virtue’ (Cranston 1968, 36). For Locke the public sphere is certainly not a realm of moral action as it is for Rousseau. According to Rousseau, corruption and degeneration happen in two ways—either by the natural tendency of democracies to become aristocracies to become monarchies, or when the state dissolves because the prince or group of magistrates usurps the sovereign power. In either of these two ways, the social pact is broken. In this case, citizens recover their natural freedom, and may be compelled by force to obey, but are no longer under a moral obligation to do so. There is a strong link here between obligation and sovereignty. This process of decay cannot be prevented, but it can be delayed as noted above by a properly-working sovereign authority, when the legislative power operates effectively.

The next of Rousseau’s key terms is the distinction between general and particular wills. As Gourevitch notes the general will—that which ‘wills the general good’—expresses ‘the guiding principle of the sovereign body established by the social contract’. The general will is the will of the members of political society qua citizens, and refers only to general cases or types. It ensures Rousseau’s aim of advocating ‘freedom under self-imposed law’ (Gourevitch 1997, xx). Rousseau states that ‘the general will alone can direct the forces of the state in accordance with that end which the state has been established to achieve—the common good’ (Rousseau 1968, 69), while particular wills are held by each person as a private individual. Cole argues that Rousseau’s conception of the general will means that it is, ‘above all a universal and, in the Kantian sense, a “rational” will’ (Cole 1973, xliii). As Wokler describes, the ‘general will was Rousseau’s term for the exercise of popular sovereignty’ (Wokler 1995, 67), and O’Hagan emphasises that, according to Rousseau, ‘sovereignty and the general will are tied conceptually to one another. When a people exercises its sovereignty it is expressing its general will’. Indeed, Rousseau criticised ‘other theories which would make sovereignty a bundle of powers, condensed and bestowed on a single bearer, the sovereign’. For Rousseau, such theories ‘can never explain the absolute unity and indivisibility of sovereignty’. O’Hagan sums up that Rousseau replaces ‘an ontology of “parts” by an ontology of “emanations”’ (O’Hagan 1999, 114). Cranston notes another feature, that the general will ‘is a normative concept, its connection with right is a matter of definition’. By contrast, the will of all ‘is an empirical concept; the only test of the will of all is what, in fact, all will’ (Cranston 1968, 37). Strong highlights the moral character of the general will when he notes that it is ‘Rousseau’s formulation of the recognition of what it means … to be capable of living with other human beings as human beings and as a human being (rather than as, say, a beast or a god)’ (Strong 1994, 88).

Wokler points out the dual character of the general will. Rousseau ascribes the general will ‘both to the public interest or common good which the sovereign of every state ought to promote, and to the individual will of each citizen to achieve that good, often contrary to the same person’s particular interest as a man or member of other associations within the state’ (Wokler 1995, 67). It follows that the private will of an individual is different from their general will as a citizen. Private interest is acknowledged by Rousseau as a necessary part of human life, but he says that it leads to partiality, whereas the public interest leads to equality. The common interest of the general will is a harmony of interest and of justice (and so has a moral character) which ‘gives to social deliberations a quality of equity’ (Rousseau 1968, 76). But as Wokler makes clear, ‘the general will, in its focus upon the common interest, should not be confused with the will of all, which was merely the sum of private and thus necessarily conflicting interests’ (Wokler 1995, 67).

Rousseau maintains that the general will is indestructible, unchanging, incorruptible and pure. Because the ‘civil act’ was based on unanimity, the general will can operate according to majority decisions. As noted earlier, Rousseau argues that for ‘the will to be general, it does not always have to be unanimous; but all the votes must be counted. Any formal exclusion destroys its universality’ (Rousseau 1968, 70). Cranston illuminates Rousseau’s theory when he says it is ‘understood that the members of the majority whose decision is accepted do not ask themselves what do I, as an individual, demand, but what does the general will demand’. In this way, ‘it is the majority interpretation of the general will which is binding and not the majority will. This is how it can be morally obligatory for the minority to accept’ (Cranston 1968, 38). However, the general will can be annihilated when other, particular, wills prevail over it by force. Nevertheless, the more that public deliberations result in public opinion that approaches unanimity, the more the general will is dominant, says Rousseau.

The distinction between general and particular laws is also a key term for Rousseau. If the will is general, its declaration is an act of sovereignty and constitutes a general law. The general will can only issue in general laws, which do not single out any particular person, whereas government can only make particular laws. It is general laws alone which carry the relationship with sovereignty. Rousseau maintains that such laws are related to the general will in that ‘the laws are nothing other than the authentic acts of the general will’ (Rousseau 1968, 136). As Dugan and Strong note, generality is ‘the object of law. That is, any act of the sovereign—thus any element of the general will—must have the quality of applying to each member of the body politic in exactly the same way’ (Dugan and Strong 2001, 331). Acts of sovereignty are laws, and sometimes Rousseau calls them covenants. Cobban registers the significance of general laws for Rousseau when he notes that, ‘while for Locke the sovereignty of the people is only operative in the last resort, for Rousseau the sovereign people is the actual legislative authority of the community’ (Cobban 1964, 72).

The object of law in this sense, for Rousseau, is freedom and equality. They are laws, not between a superior and an inferior, but of a body with each of its members. Such covenants are legitimate because based on social contract, equitable because common to all, useful because they have no aim or object but the common good, and durable because they are guaranteed by the armed forces and supreme power. Cranston argues that Rousseau had two conceptions of law. According to the logic of his theory, the law as right and the general laws enacted by popular sovereignty, are by definition just. But the instantiations of law that Rousseau observes in the world are often unjust and benefit the stronger over the weaker. Cranston concludes that there is ‘for Rousseau a radical dichotomy between true law and actual law, between law as it should be and law as it is seen in the existing world’ (Cranston 1968, 37).

Rousseau outlines a classification of laws, with moral laws playing an influential but distant role, then fundamental or political laws at the top of the political structure, then civil laws, and then criminal law. Schwartzberg’s argument about the importance of ‘fundamental law’ to Rousseau only goes to reinforce the way that for him law, properly speaking, enables sovereignty to function. Fundamental law ‘does not constrain the sovereign will, but is constitutive of the sovereign or transforms its operation with respect to morality and justice’ (Schwartzberg 2003, 387). Rousseau makes it clear that, of ‘these various classes of law, it is only Political Laws, which constitute the form of government, that are relevant to my subject’ (Rousseau 1968, 100). Nevertheless, Gourevitch argues that potentially, according to the logic of Rousseau’s position, ‘nothing prevents equals from instituting laws that recognise inequalities earned by contributions to the public good’. Because conventional equality is ‘inherently unstable’, since ‘men’s natural inequalities will repeatedly reassert themselves’, conventional equality ‘has to be repeatedly restored’ (Gourevitch 1997, xix).

According to Cranston, while Rousseau takes from Hobbes the notion of indivisible sovereignty he also borrows from Locke the idea of limited sovereignty—a coupling which would have pleased neither Hobbes nor Locke, and which neither would have thought possible. Rousseau agrees with Hobbes ‘that sovereignty is an absolute power; it cannot be divided and remain sovereign; and it cannot be subject to “fundamental laws” and remain sovereign’. But Rousseau concurs with Locke, as Cranston notes, that sovereignty ‘is absolute but not unlimited. The limits are those imposed by natural law and by the considerations of public good’ (Cranston 1968, 38). Rousseau does make it clear that the ‘right which the social pact gives the sovereign over the subjects does not … go beyond the boundaries of public utility’ (Rousseau 1968, 185). Nevertheless, Rousseau does not allow, as Locke does, an independent appeal to natural law by individuals, overriding the sovereign, in the case for instance of an invalid agreement to enter into slavery (Cranston 1968, 39). Cranston notes that ‘Rousseau takes up the position of Hobbes, namely, that the citizen can have no other guide but the civil law and the public conscience. The general will is itself the arbiter of just and unjust’ (Cranston 1968, 39). Wokler takes a different view, noting that ‘[e]arlier political thinkers had frequently sought to provide safeguards against threats of despotism by invoking principles of natural law which rulers could transgress only at the peril of their soul or even their lives, risking regicide or revolution’. According to Rousseau however, Wokler continues, only ‘the vigilant exercise of those powers [of sovereignty] by the people themselves was the only safeguard against despotism’ (Wokler 1995, 71).

Moreover, it remains open whether Rousseau intended to give a substantive meaning to natural law or whether it is simply immediately identified with reason as when he says, ‘[t]hese principles … are derived from the nature of things; they are based on reason’ (Rousseau 1968, 57). Whether we read Rousseau through Cranston’s interpretation of the role of natural law in Rousseau’s theory, or see natural law as playing only a nominal part, Rousseau is clear that ‘the social pact gives the body politic an absolute power over all its members’ (Rousseau 1968, 74). The role of the lawgiver provides the only practical opportunity to make a corrective, to ensure that the general will coincides with the public good.

The lawgiver is the last of Rousseau’s key terms to be considered. For Rousseau, the general will cannot be wrong but it can be misguided. He argued that, by definition in a properly constructed republic where the people as sovereign make the law, the ‘people is never corrupted, but it is often misled’ (Rousseau 1968, 72). However, he says, ‘[i]ndividuals must be obliged to subordinate their will to their reason; the public must be taught to recognise what it desires’ (Rousseau 1968, 83). Gourevitch notes that for Rousseau the ‘great problem for the doctrine of popular sovereignty is that achieving the willed good requires wisdom’ (Gourevitch 1997, xxi). Therefore it needs a lawgiver to teach, to give public enlightenment to produce the union of understanding and will in the social body, and to bring the parts into perfect harmony and lift the whole to its fullest strength. The office of the lawgiver is neither that of government nor of the sovereign. This is the office that provides the republic with a constitution. But it has no place in that constitution. It is a special and superior function, deals only with laws and not with the direct enforcement of the laws on particular men. Nevertheless the legislative right remains with the people—the lawgiver can only advise. The role of the lawgiver enters after a people have bound themselves together by some original association, and before they have borne the yoke of law—before deep-rooted customs and superstitions have taken hold. Gourevitch presents an alternative interpretation, arguing that the lawgiver represents an on-going process. He says that just ‘as “contract” in part stands for the ongoing civilising process in which all of us are in varying degrees involved throughout our lives, as were our forebears, and as our descendants will be, so “Lawgiver” in part stands for the activities of every generation of public-spirited citizens’ (Gourevitch 1997, xxiii).

Connolly describes how Rousseau ‘resolved’ the paradox of sovereignty—how self-rule can be established in the absence of a ‘prior ethos of community already infused into the populace’—through ‘recourse to the fiction of a wise legislator who imbues people with the spirit of self-rule before they begin to rule themselves’ (Connolly 2004, 24).

Rousseau also allows that in an exceptional situation, a ‘dictator’ can be nominated, who can suspend the current body of law, if ‘the inflexibility of the laws … prevents then from bending to circumstances’ (Rousseau 1968, 170). But even in this case the general will remains supreme, and remains the only body capable of making law. In this way then, and whatever our modern scepticism, the function of the lawgiver and the role accorded to a dictator do not for Rousseau constitute measures that could undermine the argument for popular sovereignty that he is at pains to develop.

Having explored the key terms in Rousseau’s conception of sovereignty, we come back to the understanding which sees as central to Locke’s conception of sovereignty the distinction between the constitutive power of the people and the ‘supreme power’ of the legislative branch. The difference between constitutive and ordinary power here can be mapped onto one of the meanings of the distinction between political and legal sovereignty. The comparison between Locke and Rousseau raises here the question of whether it is a necessary part of the concept of sovereignty that a distinction be made between legal and political sovereignty in this sense. Gough takes the view that ‘Locke … avoids the confusion in which Rousseau became involved, when in the attempt to make the political and the legal sovereign correspond, he ascribed sovereignty to the general will and thought it could only be ascertained in small communities’ (Gough 1973, 128). Franklin makes a similar point, in effect praising Locke’s adoption of a division between the constitutive principle and the location of legal authority. In defence of Rousseau, Cole argues that the ‘most he did was to insist on the paramountcy of the general interest over all particular interests’ (Cole 1973, xxxix).

There are several lines of argument that can be developed here. The first is to see the merits of the distinction between political (constitutive) and legal sovereignty. There is a widespread consensus that it is important to identify the source of the authority to exert political power as separate from the role of legislators and judges. This division was invoked in criticising the government in Britain’s incarceration and treatment of suspected terrorists outside the normal rule of law was subject to a challenge in the courts early in 2005, and the government was forced to make another law to cover these cases. Moreover, in the Soviet Union and Nazi Germany for instance, government (to a large extent) acted according to a legal code, under the rule of law, but that did not offer sufficient safeguard against oppression and tyranny. The lesson that is often taken from such cases is that, in terms of sovereignty, it is best if political authority is not aligned or integrated with legal authority. This distinction also allows for the possibility of a right of resistance. While Rousseau grants that the social pact is dissolved if the state degenerates, he does not reserve to individuals a natural ‘right to judge the actions of the sovereign’ (Dent 1999, 189), and so to resist them. For Rousseau, as for Hobbes, the pronouncements of the sovereign can by definition never be unfair or unjust.

The second line of argument begins by identifying that distinction as central to the liberal tradition rather than as necessary to the concept of sovereignty. The very distinction is a liberal conception, inflating one conception of sovereignty into the concept, and writers like Gough and Franklin fall into the trap of equating a liberal conception with the concept itself. The distinction marks the particularity of the liberal model. Indeed the distinction does not clarify and provide a solution to a problem, it simply extends the problem. For if political sovereignty, as in Rousseau, is the power to make general laws, then what does the distinction between legal and political consist of? It becomes a distinction between the power to make law on the one hand, and the power to scrutinise and cast down law and so hold law-makers accountable on the other. This is one step removed from the idea of legal sovereignty contrasted with political sovereignty as a constitutive principle. Moreover, notwithstanding the separation between political and legal authority in the case of the suspected terrorists, in Britain there is a fusion of political and legal sovereignty at the top, the House of Lords containing the highest legal authority and part of the Parliament which is the highest political authority. Furthermore, a separation between political and legal sovereignty cannot altogether hold, because the organisation, norms, and conventions of the legal system help to shape the expression of political sovereignty.

The third line of argument is to defend Rousseau’s conception on the grounds that, if you are going to have a robust conception of sovereignty you may as well see how far the logic of it can be developed. In addition, Rousseau is advancing a different conception that offers certain advantages. His conception of popular sovereignty as constituting all citizens together making laws in the common good, is genuinely egalitarian. It also fulfils a need for political sovereignty to be enacted by the populace. Against the accusation that Rousseau’s conception fails to provide sufficient safeguards against despotism it could be argued that an important protection is secured in the way Rousseau’s general will enacts only laws that are perfectly general. As Strong puts it, the ‘general will … cannot as general will have anything to say about that which is particular’ (Strong 1994, 84). Such laws are designed to apply universally to all citizens, such that neither individuals nor minorities can be singled out. Wokler highlights the value of Rousseau’s vigorous notion of sovereignty. He argues that ‘[n]o major political thinker before Rousseau had ever shown so much devotion to the idea of collective self-expression or popular self-rule. Although he allowed that the common people could be deceived or misled, he believed that the only possible safeguard against despotism was popular sovereignty itself. Only when the people all took part in legislation could they check the abuse of power which some of them might seek to wield’ (Wokler 1995, 65).

Having opened up the question of the plausibility of the different connections in Locke and Rousseau on the complex issue of the relation between political and legal sovereignty in this sense, we turn now to an overall assessment of Rousseau’s theory of sovereignty. Looking at Rousseau’s logic of reasoning on sovereignty as a whole we can see that it is framed by three great dualisms, which act as another safeguard against tyrannical abuse of the system, either by government or powerful individuals or groups. A dualism constitutes much more than a distinction. It contains a hierarchy of value between the two parts, and an opposition between them, and in this case also an inter-dependence between them. The over-arching dualism in Rousseau’s system is between sovereignty and government. The theory is set up in such a way as to insulate the political and civic realm of the enactment of popular sovereignty from the public realm of government and administration. Following logically from this framework of a separation between politics and government there is the dualism between general and particular laws. These two separations are primarily designed to ensure that administrators and magistrates do not encroach on the territory of legislation reserved for the sovereign body. In the third place, these two dualisms rest on a binary between the general and particular wills. The first two dualisms refer to a dichotomy between the political and public realms, while that between general and particular wills refers to a dichotomy between the political and private realms, the proper spheres of public (common good) and private interest. Such dualisms are a distinctive feature of Rousseau’s manner of theorising. Others that also occur in his work are between natural independence and freedom, force and right, freedom and bondage, possession and property, and subject and citizen. As well as protecting the individual and the common good, these dualisms work to mark out the strong sense of the transformative power of sovereignty, enabling mankind to benefit from a richer conception of liberty and from a moral framework for action.

The idea of popular sovereignty, of which Rousseau stands as the exemplar, also raises the question of how far it can be stretched and who can be excluded from the list of its proponents. Hobbes represents a test case here. Hobbes is often regarded as setting out the exemplary form of absolute sovereignty, in the sense of the very opposite of its popular form, investing the sovereign with unlimited and absolute powers over the people. However, he can also very plausibly be read as a genuine popular sovereigntist, since his theory hinges on the act of authorising of the sovereign by all persons as equals, and on the representation by the sovereign of the people, literally expressed in the frontespiece of Leviathan. In contrast, Locke’s form of popular sovereignty does not contain the spirit of the popular form. It prevents the government from acting in the common good, for instance for the benefit of the poor or disadvantaged minorities, because its role is restricted in effect to protecting individual property rights. It also, for instance, prohibits suicide because that right (to life) is not popular (indeed there are no popular rights for Locke) but derives from God. The net effect of the strict limits Locke places on the portrayal of popular sovereignty is to prevent any progressive potential for government.

The key general features of sovereignty that preoccupy Rousseau are the relationship between rulers and ruled, sovereignty as self-government within a moral framework, and sovereignty specifying the highest legal authority. Wokler points to one of the strengths of his theory when he notes that, ‘[p]rior to the meaning he ascribes to it in the Social Contract, the concept of sovereignty had been connected by its interpreters to the idea of force, power, or empire’. Moreover, ‘it had generally pertained to the dominion of kings over their subjects, however that had been acquired, rather than to citizens’ freedom’. Wokler argues that for ‘both Bodin and Hobbes in particular—the best-known advocates of absolute sovereignty before him … [sovereignty meant the] unequalled power of the ruler’. In contrast, for Rousseau ‘the idea of sovereignty is essentially a principle of equality, identified with the ruled element, or the subjects themselves, as the supreme authority, and it is connected with the concepts of will or right, as he defines them, rather than force or power’ (Wokler 1995, 64). Of all the conceptions of sovereignty in the mainstream political theory tradition, Rousseau’s is one of the ones that has the strongest sense of politics as a positive realm of deliberation and contestation in pursuit of the common good. Thus, in answer to Strong’s question, ‘what claim [does] the common … have on me’? (Strong 1994, 78), Rousseau would reply ‘a great deal’ while Locke would respond, ‘a minimal amount’.

Gourevitch highlights even more starkly the importance of politics for Rousseau. He notes that there are ‘three basic principles of his politics, that man is by nature good, that political society corrupts him, and that everything is radically dependent on politics’. In Gourevitch’s insightful reading, ‘Rousseau categorically denies that any political solution can transform “men as they are” into “men as they ought to be”’. Rousseau ‘holds out no prospect whatsoever of an end to politics, be it by men’s rationally choosing what is in their enlightened self-interest, or by their becoming “moralised”, or by the “withering away of the state”’. In Rousseau’s nuanced understanding of politics there is both ‘no alternative to politics’ and no political solution can be definitive (Gourevitch 1997, xxxi). The tensions are at best held in place by the workings of politics.

Despite its evident strengths, the major weakness of Rousseau’s conception remains the threat of degeneration into tyranny, notwithstanding the nobility of his ideal and the safeguards he puts in place. The energetic vigilance of the sovereign body, the set of dualistic prescriptions in which the theory is couched, the generality of the law enacted by the sovereign body, the limits placed on the institutions of lawgiver and dictator, the mechanism by which citizens recover their natural freedom if the social pact is broken through the degeneration or corruption of the state, are yet insufficient to overcome that threat. The problems of preventing the merger of political and public interest (in the form of government despotism), or the fusion of political and private interest (and the dominance of certain particular interests), or of majoritarian tyranny, persist.