The last post look at some reasons why there has been a tendency for those to be concerned with liberty (particularly in the more individualistic senses in which that word is used) have often criticised Rousseau as an advocate of subordination of individual liberty to the the political body which represents the social whole, or claims to do so. The main point I have in opposition to that, from the point of view of an individualistic conception of liberty, is that Rousseau was centrally concerned to distinguish between the social whole, when organised as the general will, which makes laws, and the political body that governs the social whole. The point of criticism directed against Rousseau is the point he is most particularly aware of as a danger, the danger that the political body will be confused with the general will. These criticisms were directed against Rousseau in his own lifetime, and he indignantly repudiated them. The problem with Rousseau here, to some degree, is that he liked to express himself in a provocatively paradoxical way (we are forced to be free, man is born free but lives everywhere in chains) which have often been taken as justification for a transformation in which the individual completely subordinates the will to the total legal and governmental authority of the political body, in order to be ‘free’ in a sense which ignores the importance of being free from the power of the political body, or the social whole.
In some of this, I was addressing some of Hayek’s less careful moments in his reading of 18th century political thought, though Hayek does sometimes recognise the value of Rousseau’s conception of law, and that Rousseau makes a distinction between the general will as legislator and the government. eve in his most careful moments Hayek fails to notice how close Rousseau’s conception of law can be to his own. In his anti-Rousseau moments, Hayek even condemns Rousseau as an advocate of rationalist law made up by the state from abstract principles rather than ideas of justice shared within a community, which is the proper source of law for Hayek. He puts Rousseau into an absurdly sweeping line up of villains who are apparently behind an increasingly over mighty state because they put forward interlocking ideas about pure rationalism in philosophy, top down planning in politics, and a conception of law as just the facts established by the will of the state. Really this kind of sweeping generalisation is absurd, and should not be the basis of anyone’s view of law, politics and liberty. Anyway, Hayek does not seem to have been a careful reader of Rousseau on law. I think what he probably does is take the chapter on the ‘Legislator’ in The Social Contract, and assumes that it is about some isolated rationalist genius making up laws to suit his own system.
The trouble with this is that Rousseau does not suggest anything like this, he suggests that the ‘legislator’ creates a system out of the existing pattern of laws, customs, morals and so on. The legislator is more the systematiser as the person who tidies up and makes more coherent the customs and morals of a political community. Rousseau always attaches the most extreme importance to maintaining the customs and common principles of justice as they exist in everyday awareness. The Rousseauesque legislator does not create, he is more like the idealised version of Hayek’s judge who discovers law by comparing existing law and previous judgements with the particular facts of a case. Rousseau’s legislator and Hayek’s judge are one hand. That is open to debate, but it is worth taking that absolute statement as a stating point, certainly in preference to the sorry trivialisation of an already weak argument in Hayek, at the hands of his most strident fans. That is the argument which regards legislation in Rousseau as the product of arbitrary political will. The examples of legislator that Rousseau takes are the law givers of ancient republics (Lycurgus in Sparta, Solon in Athens, Numa in Rome) and religious leaders (Moses for the ancient Jews, Mohammad for the first generation of Muslims, Jean Calvin in Rousseau’s city of Geneva). These are all very different examples, for some of them their very existence is a matter of doubt, though for others their life was a very real and well recorded process (Mohammed and Calvin).
If we are going to criticise Rousseau for anything it should be from the point of view of rationalistic state made law, of what Hayek calls legislation as opposed to law properly speaking. Hayek’s interest in ‘law’ has good motives behind of concern for liberty and feeds into worthy attempts to think about how law can be properly formed. It is a failure though. The enthusiasm for law as custom was shared by Karl Marx, and is not a all specific to those tinker sin classical liberal and libertarian spectrum. Rousseau was great at what was really a late attempt to rescue customary law, as Hayek was great at trying to think about the revival of liberalism in its original form in an increasingly statist, administrative and regulatory world. In both cases, the theory of law is inadequate to a political community of the present, and rests on an over idealisation of some political communities of the past.
To be continued