Rousseau on Fundamental Law
| Date | 01 June 2003 |
| Author | Melissa Schwartzberg |
| DOI | 10.1111/1467-9248.00430 |
| Published date | 01 June 2003 |
| Subject Matter | Article |
Rousseau on Fundamental Law
Melissa Schwartzberg
The George Washington University
How can we understand Rousseau’s use of entrenched fundamental law? Given that absolute
sovereignty is of paramount importance to Rousseau, and given that he rejects the possibility of
binding the future, fundamental law might be viewed as a paradoxical restraint on the sovereign.
However, through a consideration of their substantive form, and of the procedural mechanisms
of enactment and abrogation, these laws are shown to serve an ‘enabling’ purpose. For Rousseau,
fundamental law does not constrain the sovereign will, but is constitutive of the sovereign or trans-
forms its operation with respect to morality and justice. Fundamental law should be understood
to enhance the capacity of the sovereign; this reading also explains the most familiar limitation
that does not take the form of a fundamental law, the double-generality requirement.
Rousseau is perhaps foremost a theorist of absolute sovereignty, as his best-known
reference to ‘fundamental law’ emphasizes:
It is contrary to the nature of the body politic for the sovereign to impose
upon itself a law it cannot break. ... There is not, nor can there be, any
kind of fundamental law that is obligatory for the body of the people,
not even the social contract (On the Social Contract [henceforth SC], I,
vii, 54).
But this is not Rousseau’s final word on fundamental law; not only does Rousseau
term a variety of principles and provisions ‘fundamental’, he also appears to accept
their procedural entrenchment. These conceptions appear both in his theoretical
and in his practical works,1as in the following quote from Considerations on the Gov-
ernment of Poland [henceforth, Poland]:
Under the natural law of societies, unanimity was requisite to the for-
mation of the body politic and of the fundamental laws necessary to its
existence. ... But the unanimity required for the adoption of these laws
should equally be required for their abrogation. ... The basic points to be
established as fundamental laws should be carefully weighed and con-
sidered; and these points only should be subject to the liberum veto. This
will make the constitution as firm and the laws as irrevocable as pos-
sible. For it is contrary to the nature of the body politic to be subject to
irrevocable laws; but it is contrary neither to nature nor to reason to
require that they should be revoked only with the same formalities that
brought them into being. That is the only chain with which we can bind the
future (Poland, p. 215, emphasis mine).
How can we understand this quotation in the light of Rousseau’s attachment to
absolute sovereignty, and of his rejection elsewhere of the possibility of ‘binding
the future’? Instead of understanding fundamental law as a ‘limitation’ on the sov-
POLITICAL STUDIES: 2003 VOL 51, 387–403
© Political Studies Association, 2003. Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden, MA 02148, USA.
388 ROUSSEAU ON FUNDAMENTAL LAW
ereign will, the best way to render Rousseau’s project coherent is to use a modi-
fied enabling model of the type developed by Stephen Holmes. An enabling model
is one in which limitations on the sovereign are either constitutive of the sover-
eign, or strengthen its ability to enact its will (Holmes, 1995, p. 163). In John
Searle’s language, constitutive rules ‘create or define new forms of behavior’
(Searle, 1997, p. 33), allowing a practice to occur for the first time and ‘consti-
tut[ing] an activity the existence of which is logically dependent on the rules’
(Searle, 1997, p. 34). Constitutive rules may be distinguished from regulative rules,
which ‘regulate a pre-existing activity, an activity whose existence is logically inde-
pendent of the rules’ (Searle, 1997, p. 34). The rules of chess, as Searle and Holmes
both note, are types of constitutive rules: in Searle’s example, a rule of the form
‘a checkmate is made when the king is attacked in such a way that no move will
leave it unattacked’, is constitutive in the sense that it permits the game ‘chess’ to
be played (Searle, 1997, pp. 35–36). While we might move pieces around a board,
without rules of the ‘checkmate’ form, we could not describe ourselves as playing
chess.
In Holmes’ view, constitutional rules may properly be understood as constitutive
rules in the enabling sense: they form the possibility of action and should not be
understood as restrictions on power. Holmes argues, further, that the sovereign
strengthens himself by limiting his ability to command arbitrarily: ‘By decreasing
his power to command his subjects arbitrarily, he increases his capacity to achieve
concrete goals’ (Holmes, 1995, p. 115). Yet as the end of sovereignty, for Rousseau,
is not the strength of the sovereign’s will, but the transformation of the people with
respect to morality and justice, laws enabling the sovereign must either be consti-
tutive, or must enhance its transformative capacity.
After a discussion of prior conceptions of fundamental law and exegetical accounts
of Rousseau on this question, Rousseau’s account of the forms that fundamental
law may take is then analyzed. Both ‘political laws’ and ‘guiding principles’ should
be understood as constitutive, or at least regulative, of the sovereign. The proce-
dures by which fundamental law is both enacted and abrogated are considered;
the sovereignty-reinforcing consequences of good and enduring laws will likely
result from difficult procedures. The enabling argument is then shown to extend
to ‘restrictions’ that do not take the form of fundamental law via consideration of
the double-generality requirement.
Fundamental Law and the Enabling Model
It is important to note that the apparent conflict between absolute sovereignty
and fundamental law does not first manifest itself in Rousseau. Bodin’s Six Books
of the Commonwealth (1576) followed the coinage of the term ‘fundamental law’ by
perhaps only three years;2thus, as Holmes demonstrates, theories of entrenched
higher law and unlimited sovereignty coexisted from inception. According to
Holmes, Bodin’s king is both bound and unbound – while his sovereignty is
absolute, he is restricted by constitutional rules. Bodin’s account of ‘constitutional
law’ in Six Books of the Commonwealth is a procedural account of restrictions, as in
‘The constitutional laws of the realm, especially those that concern the king’s estate
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