Lectures on the Principles of Political Obligation / Reprinted from Green's Philosophical Works, vol. II., with Preface by Bernard Bosanquet

by Thomas Hill Green

72. As to the institution of government, Rousseau maintains strenuously that it is not established by contract. 'There is only one contract in the state, viz. that of the original association; and this excludes every other. No other public contract can be imagined which would not be a violation of the first.' (III, xvi.) Even when government is vested in an hereditary body, monarchic or aristocratic, this is merely a provisional arrangement, made and liable to be reversed by the sovereign, whose officers the governors are. The act by which government is established is twofold, consisting firstly of the passing of a law by the sovereign, to the effect that there shall be a government; secondly, of an act in execution of this law, by which the governors—the 'magistrates'—are appointed. But it may be asked, How can the latter act, being one not of sovereignty but of magistracy (for it has a particular reference in the designation of the governors), be performed when as yet there is no government? The answer is that the people resolves itself from a sovereign body into a body of magistrates, as the English Parliament resolves itself constantly from a legislative body into a committee. In other words, by a simple act of the general will a democracy is for the time established, which then proceeds either to retain the government in its own hands, or to place it in those of an officer, according to the form in which the sovereign has decided to establish the government. (III, xvii.) Acts similar to that by which the government was originally constituted need to be periodically repeated in order to prevent the government from usurping the functions of the sovereign, i.e. the function of legislation. (Could this usurpation occur under a democracy?) In order that the sovereignty may not fall into abeyance, it must be exercised, and it can only be exercised in assemblies of the whole people. These must be held periodically, and at their opening two questions ought to be submitted; one, whether it pleases the sovereign to maintain the present form of government; the other, whether it pleases the people to leave the administration in the hands of those at present charged with it. (III, xviii.) Such assemblies are entitled to revise and repeal all previously enacted laws. A law not so repealed the sovereign must be taken tacitly to confirm, and it retains its authority. But as the true sovereign is not any law but the general will, no law, even the most fundamental, can be exempt from liability to repeal. Even the social pact itself might legitimately be dissolved, by agreement of all the citizens assembled. (Ib.) (Whether unanimity is necessary for the purpose is not specified.) Without such assemblies there can be no exercise of the general will (which, as before stated, cannot be represented), and consequently no freedom. The English people, e.g., is quite mistaken in thinking itself free. It is only free while the election of members of Parliament is going on. As soon as they are elected, it is in bondage, it is nothing. In the short moments of its freedom it makes such a bad use of it that it well deserves to lose it. (III, xv.)

73. It appears from the above that, according to Rousseau, the general will, which is the true sovereign, can only be exercised in assemblies of the whole people. On the other hand, he does not hold that an act of such an assembly is necessarily an act of the general will. After telling us that the 'general will is always right, and always tends to the public good,' he adds, 'but it does not follow that the deliberations of the people have always the same rectitude…. There is often a great difference between the will of all and the general will. The latter only looks to the common interest; the other looks to private interests, and is only a sum of the wills of individuals.' (II, iii.) Again (II, iv.), 'that which generalises the will is not so much the number of voices as the common interest which unites them.' He holds apparently that in the assembly of the whole people, if they had sufficient information, and if no minor combinations of particular interests were formed within the entire body, the difference between the wills of individuals would neutralise each other, and the vote of the whole body would express the true general will. But in fact in all assemblies there is at least a liability to lack of information and to the formation of cliques; and hence it cannot be held that the vote of the assembly necessarily expresses the general will. Rousseau, however, does not go so far as to say that unless the law is actually such as contributes to the common good, it is not an expression of the general will. The general will, according to him, always aims at or wills the common good, but is liable to be mistaken as to the means of attaining it.' It is always right, but the judgment which guides it is not always enlightened…. Individuals see the good which they reject; the public wills the good which it does not see.' (II, vi.) Hence the need of a guide in the shape of a great lawgiver. Apparently, however, the possible lack of enlightenment on the part of the general will does not, in Rousseau's view, prevent its decisions from being for the public good. In discussing the 'limits of the sovereign power' he maintains that there can be no conflict between it and the natural right of the individual, because, 'although it is only that part of his power, his goods, his freedom, of which the use is important to the community, that the individual transfers to the sovereign by the social pact, yet the sovereign alone can be judge of the importance'; and the sovereign 'cannot lay on the subjects any constraint which is not for the good of the community.' 'Under the law of reason' (which is thus identified with the general will) 'nothing is done without a cause, any more than under the law of nature.' (II, iv.)

74. But though even an unenlightened general will is the general will still, and (as we are left to infer) cannot in its decisions do otherwise than promote the public good, Rousseau distinctly contemplates the possibility of the general will being so overpowered by particular interests that it finds no expression in the votes of a popular assembly, though the assembly be really one of a whole people, and the vote of the majority is duly taken. (IV, i.) In such cases it is not that the general will is 'annihilated or corrupted; it is always constant, unalterable, and pure.' Even in the individual whose vote is governed by his private interest the general will is not extinct, nor is he unaware either of what the public good requires or of the fact that what is for the public good is also for his own. But his share in the public evil to which he knows that his vote will contribute, seems nothing by the side of the special private good which he hopes to gain. By his vote, in short, he does not answer the question, Is so and so for the advantage of the state? but, Is it for the advantage of this particular man or party? (Ib.)

75. The test of the dominance of the general will in assemblies of the people is an approach to unanimity. 'Long debates, discussions, tumult, indicate the ascendency of particular interests and the decline of the state.' (IV, ii.) Rousseau, however, does not venture to say that absolute unanimity in the assembly is necessary to an expression of the general will, or to give a law a claim upon the obedience of the subjects. This would have been to render effectual legislation impossible. Upon the theory, however, of the foundation of legitimate sovereignty in consent, the theory that the natural right of the individual is violated unless he is himself a joint imponent of the law which he is called to obey, it is not easy to see what rightful claim there can be to the submission of a minority. Rousseau so far recognises the difficulty that he requires unanimity in the original compact. (IV, ii.) If among those who are parties to it there are others who oppose it, the result is simply that the latter are not included in it. 'They are strangers among the citizens.' But this does not explain how they are to be rightfully controlled, on the principle that the only rightful control is founded on consent; or, if they are not controlled, what is the value of the 'social compact.' How can the object of the pact be attained while those who are bound by it have these 'strangers' living among them who are not bound by it, and who, not being bound by it, cannot be rightfully controlled? The difficulty must recur with each generation of the descendants of those who were parties to the original pact. The parties to the pact, it is true, have no right to resist the general will, because the pact is ex hypothesi to the effect that each individual, in all things of common concern, will take the general will for his own. The true form, therefore, of the question upon which each party to the pact should consider himself to be voting in the assembly is, as Rousseau puts it, not 'Is the proposed measure what I wish for, or what I approve, or no?' but 'Is it in conformity with the general will?' If, having voted upon this question, he finds himself in a minority, he is bound to suppose that he is mistaken in his views of the general will, and to accept the decision of the majority as the general will which, by the pact, he is bound to obey. So far all is consistent; though how the individual is to be answered if he pleads that the vote of the assembly has been too much biassed by particular interests to be an expression of the general will, and that therefore it is not binding on him, does not appear.

76. But after the first generation of those who were parties to the supposed original compact, what is to settle whether anyone is a party to it or no? Rousseau faces the question, but his only answer is that when once the state is instituted, consent is implied in residence; 'to dwell on the territory is to submit to the sovereignty.' (IV, ii.) This answer, however, will scarcely stand examination. Rousseau himself does not consider that residence in the same region with the original parties to the pact renders those so resident also parties to it. Why should it do so, when the pact has descended to a later generation? It may be argued of course that everyone residing in a settled society, which secures him in his rights of person and property, has the benefit of the society from the mere fact of his residence in it, and is therefore morally bound to accept its laws. But this is to abandon the doctrine of obligation being founded on consent. Residence in a territory governed by a certain sovereign can only be taken to imply consent to the rule of that sovereign, if there is any real possibility of relinquishing it, and this there can scarcely ever be.

77. Rousseau certainly carried out the attempt to reconcile submission to government with the existence of natural rights antecedent to the institution of government, by the hypothesis of a foundation of government in consent, more consistently than any other writer; and his result shows the hopelessness of the attempt. To the consistency of his theory he sacrifices every claim to right on the part of any state except one in which the whole body of citizens directly legislates, i.e. on the part of nearly all states then or now existing; and finally he can only justify the control of the minority by the majority in any state whatever by a subterfuge. It does not follow, however, because the doctrine of natural rights and the consequent conception of government as founded on compact are untenable, that there is no truth in the conception of the state or sovereign as representing a general will, and as authorised or entitled to obedience on that account. It is this conception, as the permanently valuable thing in Rousseau, that we have now further to consider.

78. The first remark upon it which suggests itself is that, as Rousseau puts the matter, there may be an independent political society in which there is no sovereign power at all, or in which, at any rate, it is not exercised. The sovereign is the general will. But the general will can only be exercised through the assembly of a whole people. The necessary conditions of its exercise, then, in Rousseau's time, were only fulfilled in the Swiss cantons and (perhaps) in the United Provinces. In England they were fulfilled in a way during the time of a general election. But even where these conditions were fulfilled, it did not follow that the general will was put in force. It might be overpowered, as in the Roman comitia, by particular interests. Is it then to be understood that, according to Rousseau, either there can be independent states without any sovereignty in actual exercise, or that the European states of his time, and equally the great states of the present day (for in none of these is there any more exercise of the general will than in the England of his time), are not properly states at all?

79. We may try to answer this question by distinguishing sovereign de facto from sovereign de jure, and saying that what Rousseau meant was that the general will, as defined by him and as exercised under the conditions which he prescribes, was the only sovereign de jure, but that he would have recognised in the ordinary states of his time a sovereign de facto; and that in the same way, when he describes the institution of government as arising out of a twofold act consequent on the original pact (an act in which the sovereign people first decides that there shall be a government, and then, not as a sovereign people, but as a democratic magistracy, decides in what hands the government shall be placed), he does not conceive himself to be describing what has actually taken place, but what is necessary to give a government a moral title to obedience. Whether Rousseau himself had this distinction in view is not always clear. At the outset he states his object thus: 'Man is born free, and everywhere he is in fetters. How has this change come about? I do not know. What can render it legitimate? That is a question which I deem myself able to answer.' (I, i.) The answer is the account of the establishment of a sovereign by social pact. It might be inferred from this that he considered himself in the sequel to be delineating transactions to the actual occurrence of which he did not commit himself, but which, if they did occur, would constitute a duty as distinct from a physical necessity of submission on the part of subjects to a sovereign, and to which some equivalent must be supposed, in the shape of a tacit present convention on the part of the members of a state, if their submission is to be matter of duty as distinct from physical necessity, or is to be explained as a matter of right by the ostensible sovereign. This, however, would merely be an inference as to his meaning. His actual procedure is to describe transactions, by which the sovereignty of the general will was established, and by which it in turn established a government, as if they had actually taken place. Nor is he content with supposing a tacit consent of the people as rendering subjection legitimate. The people whose submission to law is to be 'legitimate' must actually take part in sovereign legislative assemblies. It is very rarely that he uses language which implies the possibility of a sovereign power otherwise constituted. He does indeed speak [1] of the possibility of a prince (in the special meaning of the term, as representing the head of the executive) usurping sovereignty, and speaks of the sovereignty thus usurped as existing de facto, not de jure; but in no other connection (so far as I have observed) does he speak of anything short of the 'volonté générale' exercised through the vote of an assembled people as sovereign at all. And the whole drift of his doctrine is to show that no sovereign, otherwise constituted, had any claim on obedience. There was no state in Europe at his time in which his doctrine would not have justified rebellion, and even under existing representative systems the conditions are not fulfilled which according to him are necessary to give laws the claim on our obedience which arises from their being an expression of the general will. The only system under which these conditions could be fulfilled would be one of federated self-governing communes, small enough to allow each member an active share in the legislation of the commune. It is probably the influence of Rousseau that has made such a system the ideal of political enthusiasts in France.

[1] 'If it happened that the prince had a private will more active than that of the sovereign, and that he made use of the public force placed in his hands as the instrument of this private will, there would result, so to speak, two sovereignties, one de jure, the other de facto; but from that moment the social union would disappear, and the body politic would be dissolved.' (III, i.) 'When the prince ceases to administer the state according to the laws, and usurps the sovereign power … then the state in the larger sense is dissolved, and there is formed another within it, composed only of the members of the government … the social pact is broken … and all the ordinary citizens return as a matter of right to their state of natural liberty, and are merely forced, but not obliged, to obey.' (III, X.)

F. SOVEREIGNTY AND THE GENERAL WILL. Rousseau and Austin.