prior probability

“To protect the social compact from being a mere empty formula, therefore, it silently includes the undertaking that anyone who refuses to obey the general will is to be compelled to do so by the whole body. This single item in the compact can give power to all the other items. It means nothing less than that each individual will be forced to be free.” Jean-Jacques Rousseau [1]

Thus far, we have defined Rousseau’s godlike “general will” (see here), and we have clarified how this concept could be put into practice (here). Today, I will explain why Rousseau’s general will is one the most seductive but dangerous ideas in all of political philosophy. First off, recall what Rousseau means by the general will and how this concept would work in reality. To recap, Rousseau’s general will is the popular expression of the common good — nothing more, nothing less — and so long as the eligible voters (all?, most?) are “adequately informed” and do not communicate with each other before voting (no free speech?), whatever a majority of the voters decide on will be an expression the general will.

But not so fast, you might say. Aside from the many practical problems with Rousseau’s radical political scheme — what does it mean, for example, to be “adequately informed”, and how can people be informed at all if they are not allowed to communicate with each other? — what about Rousseau’s biggest blind spot of all: the tyranny of the majority? How does Rousseau solve this timeless problem?

Here is where Rousseau’s evil genius is on full display: the Swiss philospher performs an Orwellian sleight of hand; he waves the equivalent of an intellectual magic wand to make the age-old problem of majority rule disappear altogether. For Rousseau, true freedom is not the freedom to pursue one’s private interests; it’s obedience to the general will! The tyranny of the majority is thus a non sequitur or logical impossibility. Why? Because by complying with the dictates of the general will, one is ultimately obeying oneself.

But Rousseau doesn’t just redefine the meaning of freedom. He also employs his new definition of what it means to be free to justify the elimination of “factions” and “partial associations”. Recall Rousseau’s definition of the general will: “If, when an adequately informed people deliberates, the citizens were to have no communication among themselves, the general will would always result from the large number of small differences, and the deliberation would always be good.” [2] Here is the entire passage:

“If, when an adequately informed people deliberates, the citizens were to have no communication among themselves, the general will would always result from the large number of small differences, and the deliberation would always be good. But when factions, partial associations at the expense of the whole, are formed, the will of each of these associations becomes general with reference to its members and particular with reference to the State. One can say, then, that there are no longer as many voters as there are men, but merely as many as there are associations. The differences become less numerous and produce a result that is less general. . . .

“In order for the general will to be well expressed, it is therefore important that there should be no partial society in the State, and that each citizen give only his own opinion.” [3]

In other words, factions and partial associations are, by definition, contrary to the general will and must therefore be banned. But as Madison warned us long ago: “Liberty is to faction what air is to fire, an aliment without which it instantly expires.” [4] Do you now see why Rousseau’s ideas are so dangerous, even more risky and sinister than Plato’s proposed system of philosopher-kings? With Plato, at least one can argue that his Republic is not meant to be taken seriously, that Plato meant for us to read his work with irony. [5] Rousseau, however, is dead serious. The Swiss philosopher would not only destroy freedom of speech (recall that the voters under his system would not be allowed to communicate with each other before voting); he would also eliminate factions and partial associations.

To conclude (for now), a strong case can be made that it is Jean-Jacques Rousseau, not Plato or Marx, who is the true villain of modern political theory. Why? Because both Plato and Marx advocated for their preferred despots, whether it be a dictatorship led by workers or one led by public intellectuals, in the open. Rousseau, by contrast, conceals his authoritarianism with his seductive talk of the general will and the common good.

Nevertheless, we are not yet done with Rousseau, not by a mile, for a major 20th century political philosopher would not only try to rehabilitate the general will by dressing up Rousseau’s dangerous idea in classical liberal garb; his work now dominates the Anglo-American sphere. (To be continued …)

In my previous post, we compared and contrasted Rousseau’s idea of the “general will” with traditional majority rule. According to Rousseau, the general will is aimed at the common good, while majority rule (the “will of all”) is just the sum of our private wills or selfish interests. Today, we will consider a more practical question: is it really possible to put Rousseau’s general will into practice? Alas, the Swiss political philosopher is vague on specifics. At most, he drops two tantalizing hints in this particular passage in Book II of The Social Contract:

“If, when an adequately informed people deliberates [délibère], the citizens were to have no communication among themselves, the general will would always result from the large number of small differences, and the deliberation [délibération] would always be good.” [1]

In other words, according to Rousseau, two conditions must be met in order to express or measure the general will: (1) the people who are voting must be “adequately informed”, and (2) eligible voters (whoever they are) must cast their votes without speaking or otherwise communicating with each other ahead of time. Say what? Don’t let the words délibère and délibération confuse you. When Rousseau uses these words, he is simply referring to the act of getting together to cast votes and not to the process of debate and discussion preceding a vote.

Nevertheless, although Rousseau is short on specifics (he doesn’t explain what he means by “adequately informed”, for example), he does drop one big logistical hint when he praises “the unique and sublime system instituted by the great Lycurgus,” i.e. the legendary lawgiver of the ancient Greek city-state of Sparta. [2] On this note, it is revealing that Rousseau praises Sparta and not Athens — or his hometown of Geneva, for that matter — for Sparta’s political model (see here) was very different from the classical extended debate model of the Athenian Assembly (here). So, what was Lycurgus’s “unique and sublime system” of voting?

In summary, Sparta had a popular assembly called the Appella, which met once a month. The Appella was a popular body because every male citizen over the age of 30 could participate in the monthly assembly and cast a vote. But the members of this democratic body did not debate or deliberate; they shouted! Or in the words of James S. Fishkin (1995, pp. 23-24), a historian at Stanford:

“Missing in the Spartan method was the entire social context of careful debate and deliberative argument fostered by the Athenian institutions of the Assembly, the citizens’ juries, the legislative commissions, and the Council. Aristotle dismissed the Spartan applaudometer as childish. Yet if we ask which model of ancient democracy we have come closer to realizing in our modern quest for direct democracy, we must concede that there are ways in which the Spartan model is closer than the Athenian to contemporary practices.” [3]

Is this Spartan shouting method of voting or “applaudometer” what Rousseau really had in mind when he wrote The Social Contract? Either way, why does the Swiss philosopher want to dispense with debate and deliberation altogether? In Rousseau’s defense, my best guess is that he did not want the voters to be fooled by demagogues or slogans, [4] for Rousseau’s general will, however it is operationalized, is meant to measure or express a special form of public opinion: specifically, public opinion on what laws or courses of action the voters think is best for the political community as a whole. (Recall that the general is supposed to aim at the common good.)

But this still leaves one remaining open and damning question. After all, people might disagree on what the common good is or what the common good requires. If so, why should the voters in the minority be required to obey the general will? In other words, whatever happened to the tyranny of the majority? Rest assured, I will address this key question in my next post. For now, however, it suffices to say that Rousseau’s ominous answer to this set of questions has haunted us ever since.

“Man was/is born free, and everywhere he is in chains. One who believes himself the master of others is nonetheless a greater slave than they.” Jean-Jacques Rousseau [1]

So, what is Rousseau’s solution to the paradox of politics? In brief, his solution has two-parts: he posits a radical and new form of direct democracy (the “general will”), and he also redefines the concept of liberty. True liberty for Rousseau is not the freedom to pursue one’s private interests. It is not the “natural liberty” of a Thomas Hobbes, a John Locke, or an Adam Smith; it is something else entirely: freedom consists of political participation and strict obedience — namely, obedience to a supreme god-like entity he calls the “general will” or volonté générale.

But this ingenious Rousseauian solution begs three key questions: (1) what is this quasi-mystical “general will”, (2) how is it measured or expressed, and last but not least, (3) why should one acquiesce to it, i.e. why obey? First off, according to Rousseau, the general will is a special kind of public opinion (cf. David Hume; see here, for example) or Spartan popular rule: it is the collective will of the people, but at the same time, Rousseau’s general will is distinct from traditional majority rule or what he calls the “will of all” (volonté de tous).

How so? How does one distinguish Rousseau’s so-called general will from conventional majority rule? For Rousseau, majority rule or the “will of all” is just the sum of our private wills or selfish factional interests. The general will, by contrast, is aimed at achieving the common good, i.e. at what is best for everyone:

“There is often a great difference between the will of all and the general will. The latter considers only the common interest; the former considers private interest, and is only a sum of private wills.” [2]

In other words, Rousseau’s god-like “general will” only emerges when the people prioritize the common good over their personal, self-serving interests. Now, what about my other two questions: how is the general will measured or put into operation, and why are we obliged to obey it? Stay tuned, for I shall address these all-important secondary questions in my next two posts.

Before we resume my survey of the paradox of politics, let’s recap three major motifs in Rousseau’s Second Discourse, themes that still resonate with many people, especially progressives, today:

1. Critique of Hobbes. First off, Rousseau rejects the Hobbesian portrait of man in the state of nature. According to Rousseau, men were once angels: the Second Discourse describes a bygone golden age unspoiled by any small-scale (let alone large-scale) cooperation, an idyllic world in which there is no specialization or division of labor.
2. Critique of Locke. Rousseau also rejects Locke’s classical liberal defense of property rights. For Rousseau, the first man who said “this is mine” committed the original sin of private property, for the pursuit of property not only makes us dependent on others; it is also the root cause of social inequality, human conflict, and moral corruption.
3. Critique of commercial society. Even if you disagree with Rousseau’s critiques of Hobbes and Locke (as I do), Rousseau’s Second Discourse is still worth reading. Why? Because Rousseau’s main point seems to be a valid one: we are stuck in a never-ending and pointless rat race; worse yet, the accumulation of property transmutes man into the moral equivalent of a slave, a slave to his self-interest, his vanity, and a desire for distinction.

In short, where James Madison, John Stuart Mill, and Alexis de Tocqueville warn us against the tyranny of the majority, Rousseau rails against private property, social inequality, and moral corruption. So, what is to be done? Can man be redeemed now that property is an established institution and the pursuit of self-interest, the norm? I will present Rousseau’s ingenious but treacherous proto-Rawlsian solution to the law-liberty dilemma in my next post …

In honor of Paul Walker, who died on this day (30 Nov.) in 2013.

In addition to my regular batch of scholarly papers, sundry blog posts, and podcast trancripts, two of my book-length readings are Viking-themed, part of an independent research project for a seminar on “Vikings and Warlords” at Rollins College:

• Arthur L. Herman, The Viking Heart: How Scandinavians Conquered the World, Mariner Books (2021)
• Werner Herzog, The Future of Truth, Penguin Press (2025)
• George Lakey, Viking Economics, Melville House (2017)
• Daniel Nina, Verano del 2019 [nunca ocurrió], Pasillo del Sur (2022)
• Marcus Willaschek, Kant: A Revolution in Thinking, Belknap Press (2025)

I now want to conclude my thoughts on the rule of law by presenting my preferred definition of this fundamental concept. For me, rule of law is an aspiration or ideal: no one — no matter how powerful or rich — should be able to flout the law or “buy their way out” (so to speak) if they get into trouble, or in the words of A. V. Dicey: “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” Put another way, the legal equivalents of papal indulgences are incompatible with rule of law.

Thus far, we have seen three different conceptions of the rule of law: 1. aspirational (i.e. no one is above, or below, the law), 2. procedural (the law game must be fair), and 3. substantive (the rules of the game must be clear before the game is played). The fact that the phrase “rule of law” can be defined in so many different ways poses one last (for now) puzzle. What is their common thread, if any?

Happy Thanksgiving! In my previous post, I described one possible meaning or conception of the phrase “rule of law” — the rule of law as a law of rules. On this view, the content of the ‘law’ must be clear and its meaning must be subject to judicial review.

Today, by contrast, I will explore the rule of law from a “procedural” perspective. In brief, by procedural, I mean the process by which we are told what the ‘law’ is. For Dicey, the general principles of law must be “the result of judicial decisions determining the rights of private persons in particular cases ….” On this view, philosopher-kings are incompatible with rule of law and must be banished once and for all; instead, general legal principles and legal rights and duties must be defined by judges in actual cases.

This procedural view poses some deeper questions: doesn’t the rule of law require a court system that can resolve disputes quickly and cheaply, and are private courts (arbitration) or informal procedures (mediation) consistent with the rule of law? I ask these questions because, broadly speaking, civil and criminal litigation today are expensive and time-consuming undertakings.

Furthermore, expense and delay are not the whole litigation story. The other problem with going to court is the variable of uncertainty. Simply put, whenever a case goes all the way to trial, it is next to impossible to predict with any degree of certainty what the outcome of that case will be. As a result, even when the parties have all the time and money in the world to fight their battles in court, they may not want to take their chances with a judge or jury. 

So, how costly, time-consuming, and unpredictable can a court system be and still be consistent with the rule of law? (To be continued …)

My next rule-of-law puzzle is definitional: what do we mean by the “rule of law” anyways? In the Anglo-American world, this ideal can be traced as far back to Henry de Bracton’s medieval treatise De legibus et consuetudinibus Angliae (“On the Laws and Customs of England”), but the term “rule of law” itself is a relatively recent one: it was coined by an Oxford don, the great A. V. Dicey, in the 19th century!

For his part, Professor Dicey identifies no less than three different meanings or conceptions of “rule of law” in his 1885 treatise The Law of the Constitution. First off, the rule of law requires a law of rules, or to quote Dicey: “no man is punishable … except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” In other words, the content of the ‘law’ must be clear and its meaning must be subject to judicial review; i.e. it is the judges who get to decide whether the ‘law’ is clear or not. [1]

Alas, today there are so many cases, laws, and regulations on the books that it is all but impossible, even for a trained lawyer, to know what the ‘law’ really is, and this observation, in turn, poses a troubling question: how can there be “rule of law” — as opposed to what I like to call the “rule of politics”, i.e. rule by the arbitrary whims of men — if we don’t even know how many laws there are in the first place?

This problem is especially acute in the United States, where legal experts don’t even know how many federal crimes there are! (See here, for example.) In fact, the problem is perchance worse than that, for even if we could use some method of “machine learning” or artificial intelligence to identify all the State, federal, and international laws that make up the U.S. legal environment, we would soon discover that many of these rules are either incomplete or vague or, worse yet, in contradiction with each other!

Is this a soluble problem, or is the concept of rule of law an incoherent one? (To be continued …)

[1] I am enclosing the word ‘law’ in single quotation marks because, at some point, we are also going to need a working definition of the concept of law. But if there is one thing that most philosophers of law do NOT agree on, it is how to define the word law.

I will resume (and conclude) my series on Jean-Jacques Rousseau and the paradox of politics next week. In the meantime, I want to share some thoughts on the rule of law. In my recent talk on Friday, 21 November, at the St Thomas University Law School in Minneapolis, I identified two deep puzzles about the “rule of law” ideal. One of my puzzles is historical; the other, theoretical or definitional.

Let’s begin with my historical puzzle first by comparing and contasting the Magna Carta (1215) with the French Declaration of the Rights of Man and the Citizen (1789). By all accounts, the Magna Carta was extorted by force. King John agreed to the Great Charter at the point of a dagger! (See, for example, the artistic rendering of the signing of the Magna Carta below.)

The French Declaration of Rights, by contrast, was adopted democratically when the Three Estates met in Paris in 1789. Yet unlike the Magna Carta, the ill-fated French Declaration of Rights proved to be an ineffectual legal document, one that failed to curb the violence of the Reign of Terror (1792-94) or prevent Napoleon’s consolidation of power in 1799.

In short, why did the “MAGNA CARTA STRATEGY” of carefully limiting royal power on such mundane matters as weights and measures succeed while the “FRENCH DECLARATION STRATEGY” of identifying supposedly-inviolable and fundamental individual rights fail? (To be continued …)