On ‘The Social Contract’ by RousseauHong Zhang

In class I have discussed this book briefly. My previous discussion is based on how to frame and discuss possible problems like corruption based on Rousseau’s book. In this summary, I will analyze some of the key and interesting points either by this book or by the class discussion.

This book is about political law, government and people. This book gives out bigger view of what a contract really means in different contents. It is one of the most powerful books in human history. Let me try to understand Rousseau's world as follows:

Legitimacy and Nature Law

Rousseau starts this book by legitimacy. Unfortunately, we have very short life and no human being ever lives long enough to experience the historical changes of the society. Rousseau’s problem is a common problem to people who is born in a ready society with existing classes, governments and cultures. Back into the civilization history, there are too many examples of making power by force. Thus the first point Rousseau argue is that power is not right, unless it transfers obedience into duty, strength into right. Otherwise there is no need for a further discussion of the formation of the society: the strongest wins everything. Rather, Rousseau argues that right comes from social convention. But what types of social convention will prevent the strongest from being the absolute king of all others? Rousseau doesn’t answer this question directly. Instead, in book I the first sentence is:

MAN is born free; and everywhere he is in chains.

My interpretation is that Rousseau uses the Nature law to justify the social convention. To be more specific, Rousseau assumed that men are aware of the fact that freedom is the given property as a birthright, or, he assumes the existence of Nature Law and the awareness of the Nature Law by the majority people.

As I have mentioned in class, in ancient Chinese philosophy, there is no counterpart of the Nature Law of freedom. In Confusion man is born of the society at no price, and in Taoism man is for the nature. But no statement is for the individual himself. In the following 2000 years of literature, there is

still no idea about the born rights. Thus one first question about the modernization of China could be the Nature law. To be more generalize, do people realize that they have some born right and do people have right to claim that right? We see that the modernization of China began from end of last century adopts a quite different approach. The identity of Nation as a whole plays an extremely important role. This is an interesting topic but I won’t have space to discuss it in length.

Based on Nature law, man chooses to enter the social contract at the price of his nature right. He gains civil liberty and proprietorship of all he possesses. Rousseau didn’t specify what is nature law and what is the Nature State as Locke did. He might take it for granted. What behind the nature law is the choice of alternatives. We have seen that the whole modern economic theory is based on the concept of opportunity cost. It is not hard to find out the direct relationship between the opportunity cost and the concept of the nature law. Here we see how powerful the idea is; it is the foundation of our modern society.

Sovereign and Law

It is interesting to see the explanation why human being needs a society anyhow. Hobbes identified the war of everyone against everyone for self-preservation as the cause. Montesquiieu thought it was in the human nature (in his nature law) that people want to live with others. Rousseau was similar to Hobbes. He identified self-preservation as the primary goal and he also mentioned the commonwealth that people gain from participating the social contract.

Rousseau didn’t specify what is sovereign. Again, he might think the idea self evident as the nature law. And he really regards the whole of social contract participants as the sovereign. What he did, is to develop a theory of political law based on this sovereign. I don’t know whether Rousseau was the first one to give that meaning to the word sovereign and many other words. But it is amazing that we still use the words Rousseau used in his Social Contract. Of course, we still use his ideas today.

Rousseau specifically makes distinguish between the two concepts about common will, the will of all and the general will:

There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another,7 and the general will remains as the sum of the differences.

Now though he noticed that people have private interests, he believed that in the aggregate will all the private interests will cross one anther to some degree. If not then there exist some common interests for all social participants. Therefore his sovereign is popular sovereign in the form of everyone’s democratic right. Rousseau opposed interests of associations formed by some members of the society. He said that

When one of these associations is so great as to prevail over all the rest, the result is no longer a sum of small differences, but a single difference; in this case there is no longer a general will, and the opinion which prevails is purely particular.

This is dramatically different from the works of Marx who emphasized at the very beginning that all opinions are opinions of social classes. Thus in Marx’s phrases, there is no room for Rousseau’s sovereignty. This is very interesting. The whole French Revolution was sort of based on Rousseau’s system. When Marx observed the world, which is supposed to be based on sovereign and general will, he observed the right of the strongest at the social class level. Though Marx might goes to some extreme case, his work states some weakness of Rousseau’s dream. That is, if a social contract is violated totally, how can people come back to the ideal state. This type of dynamics is not considered by Rousseau. Though he in later chapters mentioned the decay of government, his social movement is based on the friction between sovereign and government. Or, on the legitimacy of government. He didn’t ask the question how to institute the sovereign itself.

Rousseau further discussed the freedom and equality in terms of social contract. In other words, social contract is based on these two properties. Based on equality, the sovereign no long makes distinguish between individuals. This also makes a ceiling for the power of sovereignty, that is, it can not exceed the limits of general conventions.

I have already discussed the law system in Rousseau's book. Even though he is not generally regarded as founder of modern law system, his description about law is clear and intuitive. For Rousseau,

BY the social contract we have given the body politic existence and life; we have now by legislation to give it movement and will. For the original act by which the body is formed and united still in no respect determines what it ought to do for its preservation.

Rousseau adopted a narrow definition of law. The law is about the relation between two aspects of the entire object, without there being any division of the whole. Thus law is always general, because law considers subjects en masse and the actions in the abstract, and never a particular person or action. This satisfies Rousseau's general will. Because general will itself will not direct to a particular object. And the greatest good of all should be the end of every system of legislation. Thus we meet the two common factors again, Freedom and Equality.

Law is divided by the relationship it is specifically designed to deal with. The Fundamental Laws (Political laws) states the relationship between the government and sovereignty. The Civil Law states the relationship between members one to another, or member to the body as a whole. The Criminal Law is for relationship between the individual and the law, in another word, the dis-obedience of the law and its penalty. Rousseau regarded morality and custom as the fourth and the most important one. This might be based on his belief that society comes from convention, which is the base for the sovereign will. But seems to me that the fourth law is not in a written form and thus might have different interpretations by social contract participants.

When we come to the concept of sovereignty and law, we immediately find ourselves in the center of many problems. For examples, if general will or sovereign makes government legitimacy, then what makes an ordinary contract legitimacy? Note that in this case Rousseau's law won't offer a very precise foundation of the legitimacy of ordinary contracts. This is because the law is general but the ordinary contract general says deal with very specific conditions. Otherwise we don't need these contracts, we need just law. Thus contracts should be below the law but reflect some spirit of the law, like the freedom or equality. It should be a very interesting topic as what is a good contract (in terms of general will) versus what is a efficient contract (in terms of social cost, thus also part of general will).

I have mentioned in class that generally speaking we can't base our law or contracts on common knowledge. This is because the common knowledge could be good or bad and not necessary lead to the general will of the society. In class we discussed the example of corruption. The corruption should be prevented by law because it violates the equality principle directly. But it could be common knowledge that the assumption of corruption is necessary as a format of friction cost. If common knowledge is deceiving, there should be some other standards which guard the general will. In Rousseau's world, if we go one step further, we find out that it is exactly the fourth law, the morality and custom which defends the general will. It is really a pity that Rousseau only discussed government corruption under the general will. Otherwise there should be very exciting words on this aspect too. To some sense, the morality and custom are sort of experience wisdom getting from long history of civilization. If we look at different countries, the different history and convention makes out different moralities and customs. Therefore conflicts between different cultures seem to be another interesting point to discuss. As for the corruption itself, why negative common knowledge will prevail despite of the fourth law? Why systemic corruption could be quite stable at some period? Rousseau's work provides a starting point to think of.

Size of government and corruption

Rousseau put a special emphasize on the size of a state as one of the determinations of best constitution, law, form of government, etc. Especially, when the population of a state grows, each individual's will is less represented in the general will. At the same time, a bigger population might ask for a more centered power to govern. A best example is offered by the study of direct democratic system in ancient Greek cities. At about the same age, most of the countries in the world adopt systems where there existed one king. Therefore as the state becomes bigger, it is likely that the government should go more efficient (like King-subject system), while the sovereignty asks a strong checking power to prevent the government to disobey the general will.

Why government could disobey the general will? Rousseau uses the conflicting of the wills to state this problem.

In the person of the magistrate we can distinguish three essentially different wills: first, the private will of the individual, tending only to his personal advantage; secondly, the common will of the magistrates, which is relative

solely to the advantage of the prince, and may be called corporate will, being general in relation to the government, and particular in relation to the State, of which the government forms part; and, in the third place, the will of the people or the sovereign will, which is general both in relation to the State regarded as the whole, and to the government regarded as a part of the whole.

And the problem comes from the fact that the general will is always the weakest form of will. The corporate will second, and the individual will strongest of all. In the government, each member is first of all himself, then a magistrate, and then a citizen — in an order exactly the reverse of what the social system requires.

These are extremely powerful words which state that any political system, if there is no check power functions, will go eventually to corruption. Rousseau stated this in the following sentense:

…sooner or later the prince must inevitably suppress the Sovereign and break the social treaty. This is the unavoidable and inherent defect which, from the very birth of the body politic, tends ceaselessly to destroy it, as age and death end by destroying the human body.

Here he didn't think that the difference between types of government will make any different results.

An interesting problem is that whether higher education will reduce corruption, because people with higher education are supposed to have more exposure to law and moral standards. We see that if we follow Rousseau, there is no difference for an education system. But history also tells us that when there are outside balance power, even people still first behaviors individually and then a magistrate, and then a citizen, he will more likely go to the common factors of the three different roles than difference. Competition is often but not always a good way. Especially, the government is not competitive. Thus how to express sovereignty could be a key issue in the modern society.

On the form of corruption, Rousseau states that not the government, but the State, undergoes contraction. Government no longer represents the general will, and it begins to represent the will of associations. At the same time, the state is dissolving because general will is not represented. A new 'state' is born based on the will of all for the government members. Of course, the

new state is much less than the old one. The contracting continuous and the state finally dissolves.

It is very interesting to compare this with Marxism's understandings about state. (At least the standard education in China when I was in school.) In a typical Marxism interpretation, state is a tool for one group of people to govern another group. Thus the key issue is what makes a government legitimacy. Does size play a most important role here? Is it more legal for 90% of the people to govern the remaining 10% than the opposite condition? If we use Rousseau's analysis, none of these governments represents the general will. It is very interesting to me that why Marxism had been once popular even in western countries? Just because it states out the reality that power and size do matter and the strongest should be king or something? How about Rousseau's sovereign? I guess there is no easy answer.

In Rousseau's description, every free action is produced by two causes: one moral (will) and one physical (the power which execute it). Government too has legislative power (will) and executive power. In which case will the executive power too strong to represent the legislative power? In which case executive power itself is enough to cover the legislative power? In which case the two parts goes into conflict and how a new balance is achieved?

Montesquieu's main concern is to protect the executive power from excessive interference by the legislative and the juridical. A modern society is more a hybrid of Montesquieu and Rousseau. This is because Rousseau didn't pay attention to the dynamic of the social movements while Montesquieu's checking balance is pretty dynamic.

Before I end this brief discussion of the Social Contract, let me use some of the concepts here to discuss an organization contract. I have mentioned that contract should deal with more specific person or conditions and thus the written law is not enough to regulate the contract. Especially, the answer for what is a good contract depends heavily on what is defined as good. Like, common wealth, fairness, participants' utility functions, etc. Thus we will expect to see lots of legal but not morally legal contracts, implicit or explicit. Who has the power to justify a mis-specified contract? And why?

Further more, the contract theory of firm doesn't answer a simple question, what is a good firm, and what firms make good society. Again, goodness might have different interpretations. For example, if we emphasize the

fairness or equality of the contract participants, there is no aggregating fairness, because even there is unfair contracts when we 'sum up' the fairness we balance the gets and loss of the participants of that bad contract. A further question is that does firm have more meanings than a pure economic sense?