Vol. 16 No. 5 (May, 2006) pp.372-383


ROUSSEAU AND LAW, by Thom Brooks (ed). Aldershot, England: Ashgate, 2005. 464pp. Hardback. $225.00/£110.00. ISBN: 0-7546-2441-2.


Reviewed by Benjamin Gregg, Department of Government, University of Texas at Austin.  Email: bgregg [at] mail.utexas.edu


David Williams, Departments of Political Science and Philosophy, University of Wisconsin at Stevens Point.  Email: David.Williams [at] uwsp.edu


This volume, edited by Thom Brooks, reprints photocopies of sixteen already-published journal articles, original fonts and page numbers unchanged.  What is the value of compiling already published articles?  What is gained by republishing what can be located instantly on the internet or in the library?  This particular volume cannot tell us, as it does little to redeem the genre to which it belongs.  It is absurdly expensive.  Worse, it is somewhat sloppy (the editor neglected to correct typographical errors in the original articles and mislabels one section “National Law and Natural Rights” instead of “Natural Law and Natural Rights”).  And it includes two articles whose inclusion is difficult to justify.  Kristin Carpenter’s “Promise Enforcement in Public Housing: Lessons from Rousseau and Hundertwasser” unthoughtfully, uncritically, and unlearnedly uses Rousseaean technical terms (social contract, general will) merely as labels for facets of an argument for improving life in public housing by reconfiguring it architecturally and politically; it adds nothing to our understanding of Rousseau or to his relevance to contemporary issues.  Joshua Cohen’s “Reflections on Rousseau: Autonomy and Democracy” is itself a review of secondary literature, indeed one that develops no particular perspective of its own.


These misgivings about the anthology as genre do not detract from the intrinsic interest of many of the essays included.  They fall into several groups: (1) metaphysical versus postmetaphysical readings of supposedly transcendental truths in law and justice, (2) motivation to obey law, (3) rationality versus emotional affect in law and justice, (4) the politics of the general will, and (5) additional sundry issues and topics.


1. Metaphysical Versus Postmetaphysical Readings: On Transcendental Truths in Law and Justice


Robert Wokler, in “Rousseau’s Pufendorf: Natural Law and the Foundations of Commercial Society,” takes C.E. Vaughan’s side of a storied natural law debate with Robert Derathé (i.e., that Rousseau is more or less a positivist).  He notes that, for Rousseau, “Moral rights could only be established in specific communities formed by the agreement of their members” (p.249).  While true, Wokler neglects a significant qualification: the agreement must be to certain principles.  That is, not every manifestation of the will of all equates to the general will.  In this respect Derathé [*373] would seem to be right and Vaughan wrong, at least for the metaphysically inclined reader.



A postmetaphysical reader might focus elsewhere: Wokler discusses Rousseau’s claim that the social-cultural morally harms what, without the social-cultural, is morally good: the (unsocialized) individual.  No one disputes the claim that social-cultural life has some harmful features or the claim that social-cultural life has some positive aspects.  But the claim that the human individual has a moral status somehow outside and prior to social-cultural life makes no sense from the vantage of empirical social science.  Here Rousseau does not appear to be Vaughan’s positivist.


“Rousseau in Dworkin: Judicial Rulings as Expressions of the General Will,” by Richard Nordahl, explores the tension between individual rights and modern political community (in terms of a republic): “individual rights are not inimical to community but in fact are basic to it, helping ensure that all are accorded, on equal terms, moral membership in that community” (p.295).  Rousseau and Dworkin both construct political community that, at points, is anti-individualist, indeed hegemonic or authoritarian.  Rousseau asserts that persons opposing the “general will” can be forced legitimately to obey (“forced to be free”).  For Dworkin, liberal society is characterized by certain basic principles that judges properly interpret in ways that must be valid for everyone to the extent that everyone is part of a genuine association (“law as integrity”).  Neither author can avoid unintended, indeed unwanted, consequences of an attempt to imagine the good society.  Neither will compromise his respective theory to account for those many aspects of real life that confound the well-intentioned high abstractions of each theory.  In this sense, Nordahl leaves one with the intriguing impression that, despite all differences, Dworkin is the Rousseau of our day – a possibility problematic for Dworkin and Rousseau alike. 


From a metaphysical viewpoint, the similarities run deeper than Nordahl concedes.  He leaves unasked the question: What informs Rousseau’s and Dworkin’s respective particular priorities, if not their respective conceptions of the good?  Rousseau claims a “universal justice emanating from reason alone” (SOCIAL CONTRACT, II.6).  In LAW’S EMPIRE, Dworkin claims of justice a “more global or transcendental authority so that they [the principles of justice] can serve as the basis for criticizing other people’s practices of justice even, or especially, when these are radically different” (pp.424-25, n. 20).  A shared Platonic commitment to a transcendental notion of justice, anyone?


Nan  Ball, in “The Reemergence of Enlightenment Ideas in the 1994 French Bioethics Debate,” explores a controversial topical issue in terms of Rousseau and so demonstrates the most fruitful way to read pre-contemporary authors: towards clarifying pressing issues facing contemporary men and women.  A metaphysical reader might object to Ball’s assertion that “Rousseau conceived of nature as more of an active, evolving force and thus rejected the [*374] concept of a universal and permanent set of natural laws that are immediately intuitively accessible to man” (p.352).  Such a reader might point to the EMILE: “the eternal laws of nature and order do exist.  For the wise man, they take the place of positive law.  They are written in the depth of the human heart by conscience and reason” (IV.473).  Perhaps Ball conflates two separate concepts in Rousseau: the state of nature and natural law.  The state of nature is not the source of our standards of right and wrong but rather a pre-moral condition that has nothing to do with normativity.  “Natural” laws are moral laws that we do not cognize in the state of nature.  Ball rightly assumes that Rousseau is sensitive to context, however (p.355).  But this sensitivity does not refute Rousseau’s supposedly eternal standards but rather implies that higher principles of justice and goodness are indeterminate and thus need specification in context.


Of interest to the postmetaphysical reader is Ball’s question: should “nature” provide normative guidance?  She reads Rousseau as advising caution: the “reasoning underlying the 1994 bioethics legislation seems to run directly counter to Rousseau’s caution against uncritically confounding predominant social customs with the ‘natural’” (p.361).  Consider two points here.  First, Rousseau may indeed counsel caution, but nonetheless he invokes norms claiming eternal and universal validity and describes them as “natural.”  In principle he would seem, then, to support the French legislators’ claim that natural norms exist and are valid and should be applied by the appropriate authorities.  The argument that application need be contextually sensitive is a qualification that does not affect Ball’s account of the French case: that the legislators are properly guided by certain “natural norms.”  Yet she thinks she can marshal Rousseau to oppose those very legislators.


Second, Ball provides abundant material to support the non-metaphysical claim that “nature” is a cultural category, a human artifact.  Nature in the sense studied by natural science has no normative implications whatsoever; nature in this sense generates or contains or is capable of no meanings.  Rather, only humans create meanings (some of which help us cope with life, for one thing), including ones that offer perspectives on social organization and integration.  To call cultural acts “natural” is, then, a profound misunderstanding.  Of course, human civilization is all about profound misunderstandings, so nothing surprising here.  But if so, then Ball’s article demonstrates the enduring hold on the human imagination of an untenable proposition: nature understood as an extra-social, extra-human, other-worldly guide to social, human, this-worldly behavior.


Arthur Melzer, in “Rousseau’s Moral Realism: Replacing Natural Law with The General Will,” argues that Rousseau owes his greatest intellectual debts to Hobbes and Hobbesian positivism.  As such, Melzer’s Rousseau rejects natural law or related conceptions of justice as a foundation for the state.  Melzer joins with this interpretation a long line of Straussians (including Roger Masters, [*375] Marc Plattner, and Leo Strauss himself) who also read Rousseau as more Hobbesian than Platonic.  Yet Melzer takes Rousseau one step further by proposing not only that Rousseau severs justice from the foundations of the state but that he also regards all such notions as nothing less than subversive.


What are the problems on this score?  First, Rousseau’s own defense of the SOCIAL CONTRACT, his LETTERS WRITTEN FROM THE MOUNTAIN, specifies that the social contract must have “nothing contrary to the natural Laws” (MOUNTAIN, Letter VI).  This would suggest not only the presence of natural laws in Rousseau’s work but their indispensability in grounding his state.  Second, Melzer proposes that natural or moral laws as they follow from Rousseau’s account can only be irrelevant because they are unknowable to the vast majority of the people.  This claim relies on two passages, one from the PREFACE TO NARCISSUS and another from the FIRST DISCOURSE.  The passage Melzer cites appears irrefutable: there are but a few “sublime geniuses who know how to penetrate the veils in which the truth envelopes itself” (PREFACE TO NARCISSUS, p.102).  Yet Melzer neglects the context of the passage.  Rousseau is speaking specifically of the laws of natural philosophy – that is, science.  Later in the FIRST DISCOURSE (p.28) he makes clear that these laws do not apply to moral knowledge: “Are not your principles engraved in all hearts, and is it not enough in order to learn your Laws to return into oneself and to listen to the voice of one’s conscience in the silence of the passions?”  Finally, of this interpretation we might ask: if law and order are the sole ends of Rousseau’s politics, then why should he much prefer the social contract of the SOCIAL CONTRACT over that of the SECOND DISCOURSE?  The society established in the latter is clearly orderly; it has laws, even ones to which citizens consent.  Yet Rousseau calls it a “despotism” and legalized slavery.  The metaphysical reader would suggest that only some external and objective standard of justice undergirding his broader theory can explain Rousseau’s preference and the distinctions it entails.


The postmetaphysical reader, on the other hand, will find interest in Melzer’s reading of the SOCIAL CONTRACT as a “hardheaded political work directed primarily against the dangers of  moral doctrine” (p.232) and against natural law in particular, hence against “ideologues and moralists who . . . subvert the law through appeals to supposedly higher standards” (p.218).  Is this not the amoralism of the raison d’état entailed by Hobbes’s doctrine of sovereignty?


2. Motivation to Obey Law


John Hope Mason, in “Forced to be Free,” discusses an “impossible task” of the Social Contract: “using the voluntarist terms of contractarian theory to generate the kind of obligation which derives from what is given” (p.73).  He emphasizes socialization as an element to a possible solution to the “impossibility of reconciling voluntarist assumptions – legitimacy from individual consent – with the major insight of [Rousseau’s] social theory that what we are is to a large degree shaped [*376] by circumstances” (p.76).  And yet socialization cannot provide a solution: “Once we have left the state of nature we are all socialized in one form or another and no modern political theory can adequately ignore that.  Liberal writers, of course, do ignore it.  They imagine that their educational schemes, as much as their economic arrangements or political structures, exert no harmful influence but merely develop natural abilities and maximize individual freedom.  But their education is, in most instances, as manipulative and doctrinaire, as ideologically biased, as education in non-liberal societies” (p.78). Unless one imagines that nonliberal education is better able to generate a free society, a liberal education might seem the best possible.  But Mason condemns it as, in fact, nonliberal.  From his perspective it would seem, then, that all education, as a species of socialization, ultimately renders individuals incapable of the “voluntarist terms of . . . obligation.”  In short: human societies cannot generate, indeed they preclude, the only type of socialized human being that might unite voluntarism with obligation.  Mason argues that Rousseau wants people to obey the law, not because they have a sense of moral obligation based on an “innate principle of justice and virtue,” but rather because they would have a “feeling of dependence and belonging” stemming from the social contract and the social bonds fostered in community.  And yet these are not mutually exclusive reasons to feel obligation.  One can follow the laws of a political community both because of a sense of community and because its laws are thought to be just at the same time.  If both were true, citizens would have all the more reason to obey the laws.  Mason’s reading denies this because his notion of socialization precludes it.


A matter of continual debate is: just how democratic is Rousseau?  The thrust of Ethan Putterman’s “Rousseau on Agenda-Setting and Majority Rule” is on target: Rousseau is largely democratic in legislative spirit.  He places sovereignty in the people properly constructed and they are to ratify all legislative matters.  This is already more than what interpreters such as Judith Shklar would concede (MEN AND CITIZENS, at 181).  Putterman’s version of Rousseau nonetheless gives pause: “entrust[ing] a body other than the majority to initiate the laws while consistently maintaining that sovereignty resides in the majority” (p.127).  Could one argue that Rousseau supports not the Guys in the White Hats (a politically active citizenry) but the Guys in the Black Hats (an out-of-touch, out-of-reach expertocracy)?  Here, too, we observe Rousseau’s enduring relevance in our own time.


3. Rationality versus Emotional Affect in Law and Justice


According to Christopher Kelly, “Rousseau and the Case For (and Against) Censorship,” Rousseau proposes that the lawgiver creates popular, willing compliance with his regime (i.e., popular consent to just institutions) by creating shared, nonrational, perhaps affective feelings that lead the populace to identify with the lawgiver.  Self-interest is not the only reason why people might freely comply with a regime.  Religion and [*377] music offer ways of “reaching” people when reason does not.  While one can imagine the lessons that might be conveyed by religion, it is hard to imagine the lessons conveyed by music.  Even the lesson of a sense of order is largely absent of content; order can come on any number of terms.


Rousseau, in the EMILE, acknowledges that there are two distinct modes of thought.  One is “reason,” typical of the “masculine” mindset; the other is more intuitive or feeling, more “feminine” in nature (on Rousseau’s sexual politics, compare Schwartz 1984).  Rousseau suggests that, to think well, humans need both: the “feminine” provides the substance of first principles (written on everyone’s heart, but not equally accessible to all, as a matter of differential socialization); the “masculine” performs useful tasks with this substance.  So perhaps music, religion, and language are all used to help connect with this intuitive knowledge, for those persons whose “masculine” side is insufficiently available.  This account might connect more of the dots. 


Kelly opens up additional perspectives.  For Rousseau, an “attempt to do away with all risks of fanaticism by eliminating nonrational persuasion will leave no practical alternative to rule by force” (p.150).  Is there no grave danger that “nonrational persuasion,” or “politics by popular imitation of the elite,” allows for some of the kinds of fanaticism that supported Stalin, Hitler, and Mao (solitary lawgivers all)?  Further, is not Rousseau’s distinction between languages that supposedly are “closer to the heart” (or feelings) and languages purportedly “closer to the head” (or rationality) nonsensical?  Do not all languages accomplish the same tasks, confront the same limits as language, and equally possess both emotive power and the capacity of formulate abstract propositions?


In “Narratives of Hierarchy: Loving v. Virginia and the Literary Imagination,” Martha Nussbaum shows how Rousseau’s EMILE illuminates human compassion’s distinct capacity to inform the realization of legal justice.  First, in legal circumstances ranging from the civil (e.g., the proper constitutional meaning of legal equality) to the criminal, the EMILE offers arguments as to why understanding on the part of the social and political elite (such as judges) is a sine qua non of doing justice.  Because any self-understanding is limited and fallible, justice involves taking into account self-understandings foreign to the elite adjudicators, including those of the defendant, the wrong-doer, the accused.  Second, the EMILE argues for what modern liberals call “pluralism”: the notion that what we moderns share with each other is no longer religion, race, language, or history but only the capacity to understand that others can have preferences different from our own, preferences that others regard in the same way we regard our own.  The Rousseau of this reading is a great modernist, not an anti-modernist.


And yet are there not intractable problems in using pitié as a means by which to get people to understand one another?  In pitying one another, do we [*378] not set ourselves above others?  Do we ever feel pity for those above us?  Do we feel pity for those of our own status?  Perhaps we do not really view these people as our equals but rather as the “unfortunate.”  If so, we are unlikely to identify with them in the way Rousseau and Nussbaum might hope.


4. The Politics of the General Will


In “What is the General Will,” Gopal Sreenivasen answers: the “constrained deliberative decision of the community” (p.23).  He suggests that John Rawls and Jürgen Habermas are engaged in furthering Rousseau’s project by multiplying the constraints necessary to produce an outcome most consonant with the common interest.  What might Rawls and Habermas say to this assertion?


Also important is the issue of where the “truth” of “true selves” (and “true wants”) lies.  Sreenivasen’s answer – “wants that the person has ratified through his own reasoning and that also correspond to his critical interests” (p.9) – conflates self-determination with “true” or “authentic.”  Thus when Sreenivasen claims that “Habermas’s discussion is even more specifically related to Rousseau’s enterprise insofar as it is explicitly informed by attempts to develop a theory of critical interests” (p.35), one wonders where in Rousseau he finds this critical standpoint.


Sreenivasen also distinguishes between the “objective condition” (promoting the individual’s critical interests) (p.38) and the “subjective condition” (the individual accepts that this is so – i.e., he or she accepts that there is consent regardless of its content) (p.38).  He believes that their combination is at the heart of the general will as the simultaneity, indeed identity, of obeying oneself and obeying the political community.  He says he does not know how to do so, but nonetheless recommends Rousseau’s example.  But isn’t this example just the problem: that it, too, fails to do the necessary work?


Sreenivasan offers two interpretations of the general will, one procedural and one substantive or “objective” (p.36).  The procedural account is “one in which common critical interests are simply defined as those determined by means of a suitably specified procedure” (p.36).  The objective one “holds that critical interests are what they are independently of whatever any individual or community thinks they are” (p.36).  He leaves unanswered this large question, even as he writes, “I suspect that his stronger commitment is to the objective notion” (p.36).  Would Rawls and Habermas be sympathetic?


Arthur Ripstein (“Universal and General Wills: Hegel and Rousseau”) identifies one very important goal shared by Hegel and Rousseau: to find a form of association that defends and protects the person and goods of each associate, by means of which each is united with all, obeys none but himself, and remains as free as before associating.  They share a vision of political community in which the individual member is, as Hegel might say, with himself even as he is in community.  This vision involves the philosophical and institutional question of what it is for someone to be judged by [*379] his or her own standards (p.43) and the supposition that it is illegitimate to coerce people solely for the sake of others.  Against this common vision, the authors’ respective articulations and presuppositions differ.  Ripstein treats these as differences-in-articulation of a common vision.


Ripstein also argues that Rousseau’s general will lacks content.  Yet Rousseau never says that the general will can be filled by any particular content or that it is arbitrary.  The general will must promote freedom, equality, and justice and must be aimed at the common good.  This is admittedly indeterminate — but indeterminacy is not the same as arbitrariness.  Something can be indeterminate and still have content.  Two kinds of indeterminacy may be distinguished here: relative and radical.  Radical indeterminacy finds no content.  This cannot be Rousseau, since he specifically attaches the general will to certain substantive ideas.  Relative indeterminacy implies that the values in question are true but admit of different applications in different situations, as circumstances demand.  In this respect Hegel misreads Rousseau, mistaking relative indeterminacy for radical indeterminacy.  Rousseau does imply the indeterminacy of his goals but he is not indifferent to content; the goal — good government — does not change even as the means do.


In “Rousseau on Proportional Majority Rule,” Paul Weirich estimates the general will even as he declines to define it.  Can he nonetheless know what it is that he is estimating or does the general will remain a black box?  Is he caught in a contradiction insofar as he characterizes the general will as being ontologically dependent on the outcome of an election while at the same time saying that the majority vote is justified by its correspondence to the general will?  Perhaps Weirich does not mean to suggest that the general will is ontologically dependent on the majority will.  We know Rousseau intends no such thing because he distinguishes clearly the general will from the will of all.  If Weirich is instead suggesting that the majority (both in ideal and imperfect voting conditions) is likely to approximate this ideal, important questions remain.  While the general will may exist as an idea, how, without reference to concrete terms, are we to know whether it has been approximated?  How are we to know whether or not we are approaching the general will without some kind of notion of what the general will is?


Perhaps the general will exists partly as an idea, partly as a concrete will: an idea insofar as it must conform to the substantive idea of justice, and concrete insofar as it must be willed to be real and legitimate.  If so, one might view skeptically Rousseau’s belief that once we have a sound conscience we can recognize whether the people’s will corresponds with what the general will should be.  By what standard could we consensually agree on how to distinguish between a sound conscience and an unsound one?


One more thing.  Weirich speculates that Rousseau might have borrowed his notion of l’utilité publique from Claude Helvétius (p.119).  While Rousseau [*380] indisputably read DE L’ESPRIT, Weirich fails to acknowledge that he hated it passionately.  A large part of his PROFESSION OF FAITH responds directly to the “evils” of its teachings.  In both his LETTER TO D’ALEMBERT and his POLITICAL FRAGMENTS he rejects the notion that pleasure has anything to do with the good.  The origin of l’utilité publique may be Montesquieu’s PERSIAN LETTERS (Letter 29) and is quite unconnected with the later utilitarianism of Helvétius and his English progeny.


5. Additional Sundry Issues and Topics


Christopher Kelly, in “‘To Persuade without Convincing’: The Language of Rousseau’s Legislator,” classifies Rousseau’s thoughts into subject matter (philosophy, letters, the arts).  One might ask, however, if classification gets to the essence of Rousseau’s distinctions as to what should and what should not be censored.  It seems unlikely that he would make categorical distinctions as to what should and should not be censored on the basis of what genre of learning the work might fall into.  He may instead be concerned with the content of doctrines, asking, for example, if the work in question promotes or hinders the ideas of justice and the general will.  If it hinders, censorship may be justified or even obligatory; if it promotes, censorship would seem unjustified.  This reading is admittedly more Platonic than anything else, and finds support in the strong Platonic overtones of the LETTER TO D’ALEMBERT and the “Essay on Theatrical Imitation.”


Further, contra Kelly, the issue of the author’s social responsibility – specifically with regard to the question of self-censorship – is not marginal.  Consider the recent uproar among Muslims over the Danish caricatures of Mohammed, or decades ago the fatwa against Salman Rushdie because of his SATANIC VERSES, but also: enduring questions of authorial responsibility in such areas as journalism, war-images, pornography, and so forth.  Kelly might well seek insight on such matters from Rousseau.


Melissa Schwartzberg, in “Rousseau On Fundamental Law,” offers an “enabling model” of fundamental law, a characterization of Rousseau’s approach particularly effective in describing why it is that Rousseau’s sovereign seems to enjoy such wide discretion: “The sovereign, properly understood, is constitutively incapable of willing what is wrong; the fundamental law of utility is an enabling rule designed only to direct the general will to morality and justice” (p.181).  This makes sense because the sovereign is the general will, and the general will must, by definition, be just.  Of Schwartzberg’s thesis – that absolute sovereignty and fundamental law appear to be mutually exclusive yet are not, if fundamental law enables rather than constrains the absolute sovereign will – one might ask: is it possible that a particular kind of rule only enables and never constrains?  The answer depends on a careful distinction between the “sovereign” and the empirical embodiment of that sovereign.  The sovereign for Rousseau is the general will; it is not self-enacting but requires a people to will it: the “general [*381] will is always upright . . . but it does not follow from it that the people’s deliberations are always equally upright” (SOCIAL CONTRACT, II.3).  Thus the sovereign enables yet at the same time constrains the people when they are not sovereign (namely, when they will something other than justice).


But if “enable” means “limitations on the sovereign are either constitutive of the sovereign, or strengthen its ability to enact its will” (p.176, citing Stephen Holmes approvingly), then “enable” does not limit but only facilitates.  And is it not possible that at least some acts of enablement are also, simultaneously, limiting?  For example, if a public policy of affirmative action enables underrepresented minorities to gain admission to universities and professional schools, or to receive competitively bid governmental contracts, does it not also limit the enabled in some ways? After all, to qualify, one must be a member of certain groups and such membership is “limiting” in the sense that, in this context, the individual is defined in one way (hence qualifies) and therefore not in any other (a black woman, for example, qualifies perhaps as black or female but never as “citizen,” “patriot,” “expert,” “brilliant” – and hence is “limited” here to being a “black” or a “woman” or both).  Even a sovereign is limited by this or that understanding of sovereignty and even the absolute sovereign cannot define itself in certain ways. In short: the very notion of “absolute sovereignty” can only be metaphor; it can only mean a sovereign of greater power in distinction to one of lesser agency.  But the concept is incoherent if interpreted as meaning an unlimited sovereign (absolute understood as unlimited).


In “Rousseau’s Theory of Natural Law as Conditional,” John Noone describes Rousseau’s approach to natural law as “natural in the sense that in a given set of circumstances man by a combination of simple reason and conscience can know what is right and wrong, just and unjust.  However, its obligatory character is conditional” p.214).  Of the conditional nature of natural law Noone asserts: “If the only rules which bind men are wholly of human origin, it is difficult to see either the relevance or justice of invoking God as some sort of cosmic umpire” (p.198); “Though conscience is innate its efficacy can be curtailed by socially induced passions and obscured by a socially  generated pseudo-conscience” (p.201); “It is only within society that distinct ideas of justice and injustice arise” (p.204); and “If justice requires the strict enforcement of the law, then in the state of nature there could not have been any natural justice because there was no institution capable of enforcing natural law throughout the world” (p.205).



Noone goes a long way to explaining the variance of interpretations of Rousseau as regards the natural law.  On the one hand, in the state of nature there is no natural law; in civil society, it is very much in place.  (Melzer mistakes Rousseau’s characterization of the state of nature for his sentiments regarding natural law altogether.)  On the other hand, the notion of a “conditional” natural law is a thoughtful concession to the complexity of reality and human [*382] experience.  There is no binding natural law for persons either pre-rational or in a condition without order.  And justice applies only once there is order.


So what are the merits of this volume?  What do we learn about Rousseau as a legal theorist?  Reading as an ensemble the essays collected here demonstrates the originality of Rousseau’s thought; that he has much to say on issues, both foundational and practical, of law and justice; that he says them in ways rich and ambiguous enough to generate widely divergent, sometimes even contradictory, readings.  The essays of this volume provide legal scholars reason enough for re-visiting the man himself.



Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge: Belknap.


Helvétius, Claude-Adrien. 1758. DE L’ESPRIT. Paris: Durand Librarie.


Montesquieu, Charles de Secondat. 1964 [1721].  PERSIAN LETTERS. Indianapolis : The Bobbs-Merrill Company, Inc.


Rousseau, Jean-Jacques. 1979 [1762].  EMILE, trans. Allan Bloom.  New York: Basic Books.


Rousseau, Jean-Jacques. 1994.  POLITICAL FRAGMENTS, ed. Christopher Kelly and Roger Masters.  Hanover: University Press of New England.


Rousseau, Jean-Jacques.  1997 [1751].  DISCOURSE ON THE ARTS AND SCIENCES, in THE DISCOURSES AND OTHER EARLY POLITICAL WRITINGS, ed. Victor Gourevitch.  Cambridge: Cambridge University Press.


Rousseau, Jean-Jacques. 1997 [1752-1753].  “Preface to Narcissus” in THE DISCOURSES AND OTHER EARLY POLITICAL WRITINGS, ed. Victor Gourevitch.  Cambridge: Cambridge University Press.


Rousseau, Jean-Jacques. 1997 [1762].  THE SOCIAL CONTRACT, ed. Victor Gourevitch.  Cambridge : Cambridge University Press.


Rousseau, Jean-Jacques. 1997 [1764].  “On Theatrical Imitation: An Essay Drawn from Plato’s Dialogues” in ESSAY ON THE ORIGIN OF LANGUAGES AND WRITINGS RELATED TO MUSIC, ed. John Scott.  Hanover: University Press of New England.


Rousseau, Jean-Jacques.  2001 [1764].  LETTERS WRITTEN FROM THE MOUNTAIN, ed. Christopher Kelly and Eve Grace.  Hanover: University Press of New England.


Rousseau, Jean-Jacques. 2004 [1758] LETTER TO D’ALEMBERT AND OTHER WRITINGS FOR THE THEATER, ed. and trans. Allan Bloom, Charles Butterworth, and Christopher Kelly. Hanover: University Press of New England.


Rushdie, Salman. 1988. THE SATANIC VERSES. New York: Viking. [*383]


Schwartz, Joel. 1984. THE SEXUAL POLITICS OF JEAN-JACQUES ROUSSEAU. Chicago: University of Chicago Press.


Shklar, Judith. 1969. MEN AND CITIZENS: A STUDY OF ROUSSEAU’S SOCIAL THEORY. London: Cambridge University Press.


© Copyright 2006 by the authors, Benjamin Gregg and David Williams.