The Social Contract
Book II, Chapters 8-12
It is not only difficult to find a good lawgiver, but also difficult to find a people who are suitable for good laws. Rousseau suggests that a state must receive laws relatively early in its existence. If the attempt to give laws is made too soon, the people will not be ready to receive guidance. If the attempt is made too late, the people will have become stuck in their prejudices and will resist the improving influence of good laws. In rare cases, a revolution may permit an older state to regain its freedom under new laws, but such revolutions can only occur once.
Rousseau also remarks that a state must be of moderate size--neither too big nor too small--if it is to do well. In a large state, administration becomes burdensome and costly. Rather than one central government, there will have to be many levels of regional government, with each additional level costing the people. Furthermore, a large government will be less swift and precise in maintaining law and order, and a state spread out over a great area with different customs and climates will be hard-pressed to create one law that is fair to all. On the other hand, a state that is too small is constantly in danger of being swallowed up by neighbors who are in constant friction with it.
There must also be a balance between the number of people and the extent of territory in a state. If a small number of people own a great territory, they will not be able to maintain it all, and will be in constant danger of invasion. If a great number of people own a small territory, they will need to rely on goods from other states to sustain them, and will constantly be tempted to invade their neighbors. There is no magic number to determine the right ratio of population to territory since a great deal hinges on the kind of land, the kind of people, and so on.
The final condition Rousseau lists for the establishment of laws within a state is that it must be enjoying a period of peace and plenty, since the formation and establishment of laws leaves it momentarily vulnerable.
Bearing in mind all the above recommendations, Rousseau notes that there aren't many states fit to receive laws. One case of particular note, however, is Corsica. Rousseau remarks: "I have a presentiment that this little island will one day astonish Europe."
All laws should pursue the principles of freedom and equality. By "equality," Rousseau does not mean that everyone should be exactly the same, but that differences in wealth should not unbalance the state. Within the guidelines of these general principles, however, there is a lot of room for maneuvering. Each state has different needs and interests, and there is not one "right" way that all states must follow. Each state should have laws that harmonize with its natural circumstances.
Rousseau distinguishes four different classes of law. (1) Political Laws, or Fundamental Laws, which are the main subject of The Social Contract. These determine the relationship the body politic has with itself, the fundamental structure of the state. (2) Civil Laws, which deal with individuals in relation with each other or with the body politic as a whole. (3) Criminal Laws, which deal with cases where the law is broken. And most importantly, (4) the morals, customs, and beliefs of the people. These determine the quality of the people and the success of the more rigid, written laws.
The end of Book II deals primarily with the people that make up a state. Rousseau is wise not to be overly dogmatic in the recommendations he makes. Instead, he notes that different people will have different needs and will require different laws. A people living in the mountains might be better off setting up a pastoral way of life, while a people living by the sea might do better with seafaring and naval trade. Throughout The Social Contract, Rousseau's recommendations are meant only on a general, and not a particular, level. For instance, the sovereign and the laws only have authority on those matters that affect the body politic as a whole. In Chapter 11, he suggests that the only absolute requirement for good laws is that they should in all cases preserve liberty and equality.
Liberty (or freedom) is the basic premise around which The Social Contract is structured: Rousseau's principal question is how people can preserve their liberty in a political union. Equality, it seems to him, is a necessary condition for the preservation of liberty. The Discourse on Inequality hammers on the idea that property, and material inequality, are the root cause of human misery and evil. And again, in Chapter 11 of The Social Contract, he argues that gross material inequality can put liberty up for sale. The poor would be willing to sell their freedom and the rich would be capable of buying it. Both the very rich and the very poor would value money more than liberty. Thus, Rousseau asserts that some level of material equality is necessary to ensure that liberty comes before profit.
Nonetheless, Rousseau is equally insistent on defending our right to private property. While he is against overly eager capitalism, he does not join socialist or communist thinkers in recommending the abolition of private property altogether. If everything we did were for the benefit of the state, we would no longer be free. Rousseau would presumably accuse communist states (there were none around during his time) of pursuing equality to such an extent that it takes precedence over liberty. Equality is important as a necessary condition for liberty, and it works against itself if it enslaves the people it is meant to liberate.
There seems to be an interesting tension in Rousseau's discussion of law and its impact on people. Though he insists that laws are a defining characteristic of the social contract, and are thus necessary to ensure human freedom, he also concedes that very few states are ready for such laws. Does this mean that very few states are ready for freedom? He explains that some states are not yet civilized enough to receive laws and some states are too deeply set in old prejudices to adapt to new laws. In Chapter 12, he asserts that morality is more important for ensuring the well-being of a state than any of its explicit laws. However, he also suggests that morality is something that comes about with the creation of laws: laws and life in civil society are what make a person moral. Thus we run into a paradox of sorts: a people needs to be moral to some extent in order to receive laws, but they can only become moral when they have laws.
When Rousseau talks about laws and civil society making a person moral, he is contrasting civil society with the state of nature, where we exist in a pre-moral, instinctive manner. It is not entirely clear how things stand with barbarian civilizations or people living in absolute monarchies. They are not in the state of nature, nor do they enjoy civil freedom. Because they live in society and must be rational, they must have some sort of moral life, but Rousseau is not clear how this morality manifests itself. Clearly, though, it is rarely sufficient to raise them up into the civil freedom of a republic.
One of these rare cases Rousseau mentions is Corsica, and it is an interesting case. In 1764, two years after he wrote The Social Contract, Rousseau was invited to draw up a constitution for Corsica. This constitution was never implemented, since France invaded and annexed the island in 1769. In that same year, ##Napoleon## was born in Corsica. Though hardly as Rousseau had envisioned it, Corsica did indeed "astonish Europe," as this little man became Emperor of France and marched his armies all the way to Moscow. And though not of the sort Rousseau might have imagined or esteemed, Napoleon made himself into a lawgiver, and his Code Napoleon remains a vital legal precedent from parts of Europe to once French-controlled Louisiana.
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