Rousseau and Rawls on Legitimacy and Justice
by Grace Kiersznowski
In this essay, I compare the work of the classic political theorist, Jean-Jacques Rousseau, with that of the modern political theorist, John Rawls. I argue that while the work of Rousseau provides a significant contribution to the history of social contract theory, Rawls’ work in A Theory of Justice provides a more complete account of how to secure justice in a society. To prove this, I explain Rousseau’s ideas of freedom and the general will, before diving into his theory of double generality. I then explain how Rousseau’s theory functions in a society and what it accomplishes in the legislative process. Next, I provide an explanation for Rawls’ relevant concepts of the original position, the veil of ignorance, and the principles of social justice in order to show how his work encapsulates that of Rousseau’s and expands upon it.
KEY WORDS: Rousseau, Rawls, political theory, political philosophy, legitimacy, justice
Jean-Jacques Rousseau was born in the independent city-state of Geneva in 1712. Around that time, citizens of various European nations were losing faith in the medieval forms of government, but had not yet determined a new, more desirable form to succeed it. Rousseau’s birth state of Geneva was technically a democracy, as it was governed by a general assembly elected by the citizens; however, less than 10% of the population enjoyed the status of citizenship. Therefore, it was not a democracy in the contemporary sense of the term. Nevertheless, the political organization of Geneva had a lasting influence on the political interests and writings of Rousseau. After somewhat stumbling into political theory and gaining tremendous popularity from his work on equality, he continued writing political works and developed an interest in freedom, autonomy, and justice.
Accordingly, Rousseau’s work On The Social Contract is oriented toward the question of how society can be legitimately established to maintain an environment in which people can realize freedom without becoming corrupt. At the core of this orienting question is the concern of legislating. Rousseau develops a theory, referred to as double generality, which he believes effectively establishes criteria which actualize freedom, ensure the justice of legislation, and protect the rights of citizens.
Another political theorist concerned with justice in society was John Rawls, born in Baltimore, Maryland in 1921. After experiencing the horrors of combat while fighting in World War II and learning about the senseless violence of the Holocaust, Rawls spoke out in opposition to the actions of the United States military during the Vietnam War. He considered the war to be unjust and the actions of the U.S. military to be ruthless. The war compelled him to critically analyze the American political system with the hopes of discovering what led to this egregious conflict (Wenar). In 1971, Rawls published A Theory of Justice, which outlines a framework for deciding principles which should govern state institutions at the most basic level of society. His work is now the dominant contemporary account of justice in political philosophy. While Rousseau’s theorizing is strongly related to justice, he was more directly focused on the question of what constitutes a legitimate state institution. With A Theory of Justice, Rawls shifts the focus in liberal political theory to more directly grapple with the realization of social justice. Therefore, his book focuses on trying to answer the question of how these institutions should behave once we have established their legitimacy.
While Rousseau’s theory of establishing legitimate state power through a just legislative process was foundational to social contract theory, Rawls’ theory on the regulatory principles of social justice provides greater assurance of obtaining justice in contemporary states. Rawl’s theory is more accessible for implementation for contemporary societies because it lacks logistical hurdles posed by Rousseau’s theory. In addition, Roussau’s theory only regulates the functioning of the legislature, whereas Rawls’ theory aims to regulate all basic societal institutions, such as the political constitution, the legislature, and the economy (Wenar). Finally, Rawls’ strategy to obtain justice is more nuanced and consequently, more effective at accomplishing its goal.
To argue this, I will first explain Rousseau’s conception of freedom, which will be followed by an explanation of the “general will.” Then, I will describe the concept of double generality as well as how it ensures just legislation and protects the rights of citizens. Following this, I will explain Rawl’s heuristic of the “original position” and his principles of social justice. Finally, I will argue that Rawl’s governing principles are necessary to maximize justice in contemporary society.
The “state of nature” is a hypothetical conception of the pre-civilized world commonly used by political philosophers to theorize about the development of legitimate state institutions. According to Rousseau, in the state of nature, there exists “natural freedom,” which is limited only by the force of an individual. However, he believes that people in this state were slaves to their instincts, always following their physical impulses and appetites. Only civil society provides people with the opportunity to have true mastery over their passions. Rousseau defines civil freedom of a citizen as acting in accordance with laws that one has written for oneself (Rousseau 56). Society would obviously not be able to function if everyone were able to self-legislate without constraint; therefore, Rousseau qualifies this definition by restricting the law to be prescribed by what he refers to as the “general will” alone.
In Rousseau’s theory, the general will is derived from the sovereign authority of a society. As per the original social contract, each citizen must participate in the actions of the sovereign authority (i.e. legislating) and they are each subjects to the sovereign authority (Rousseau 189, 53-54). Each person that enters into association through a social contract comprises a new collective body of citizens, which has a common life. This body should act as the sovereign authority of the society. In legislating, the body is permitted to exercise the “general will” exclusively. Rousseau differentiates between the private and the general will by explaining that the private will tends toward personal preferences and interests, while the general will tends toward equality (Rousseau 59). Accordingly, citizens can, and likely do possess, private interests which differ from the common interest of the entire body of citizens. (Rousseau 55). He also notes that the general will should not be confused with the will of all, which is the aggregate of all private wills, unconcerned with the common interest as the general will is (Rousseau 61).
To ensure that the general will is not crowded out by private interests, Rousseau introduces the idea of double generality. He identifies form, the authority that enacts law, and substance, that which is enacted, as the two elements which constitute the nature of law. Because the law and the common good are directly related, it follows that both the object of the law and the will dictating it should be general (Rousseau 189). This means that the law must be written by all citizens and apply to them all equally (Rousseau 62). Under the rule of institutions which apply double generality to their legislative process, the common interest of the people unites them and generalizes the will, because the conditions agreed upon to be imposed on the citizenry will necessarily apply equally to those writing the law, and no rational person would enact laws which they are subject to that do not align with their general interest (Rousseau 63). To go one step further in ensuring the effectiveness of the social contract, Rousseau argues that if anyone acts against the general will, they should be constrained to act in accord with it by the body of citizens. In Rousseau’s own words, this forces freedom upon them (Rousseau 55).
To illustrate the concept of double generality, imagine a state in which people have unanimously assented to the rule of double generality in their legislative process. An assembly of all the citizens convenes for the purpose of writing the traffic laws which will govern their state. Imagine Citizen A desires to adopt a law which states “the speed limit for all drivers on all major highways is sixty five miles per hour, with the exception of Citizen A, who may drive at whatever speed she pleases.” Under the rule of double generality, Citizen A would not be able to pass such a law, because even if she were somehow able to persuade all of the other members of the assembly to accept this law (which would effectively make the authority that enacts the law general), the subject of the law creates a special advantage for her and accordingly is not general. The law would therefore be impossible under double generality. A written law which states “the speed limit for all drivers on all major highways is sixty five miles per hour” would be possible under double generality, because it would be reasonable for all members to agree to, as it affects every person in the same way, and it does not allow for preferential treatment.
If a relationship is formed under state institutions which apply the theory of double generality, it is a relationship two whole objects, viewed as wholes, with no division. This guarantees that the subject matter of the law is as general as the will that enacts it (Rousseau 66). Rousseau characterizes this as an admirable reconciliation between justice and interest, because as long as citizens are only subject to laws created under these conditions, they are not obligated to follow anyone’s will besides their own (Rousseau 63).
This description perfectly fits Rousseau’s definition of civil freedom. Therefore, double generality acts as a framework for just legislation, so that any law which is enacted under it must be just. Self-serving legislation is automatically filtered out so that any intrusive legislation that invades anyone’s fundamental liberties would simply never be written. Because the theory of double generality provides this framework for justice, the risk of tyranny, which is aroused by granting any sovereign authority absolute power, is entirely eliminated. In fact, Rousseau argues that the sovereign authority must have absolute power to protect the interest of the general will and secure freedom; otherwise, private and/or corporate interests could find their way into legislation, defeating the purpose of double generality (Rousseau 62).
Rousseau’s conception of double generality establishes equity among citizens, guaranteeing universally applied societal conditions, benefits, and rights. By not being directed toward any specific object, the general will maintains its natural rectitude and guiding principle of equity (Rousseau 62-63). Thus, the two criteria of double generality protect the rights of all citizens, because any legislation that is enacted must affect everyone in the same way. For, as Rousseau states, if one member of the body is harmed, the entire body is attacked (Rousseau 55). In other words, if a law invades the rights of one person, it invades the rights of every person.
Similar to the thought experiment of the “state of nature” employed by Rousseau to theorize about society’s origins is Rawls’ “original position” heuristic. The original position is the situation in which people establishing a society would choose the principles which are necessary for determining the social arrangements that shape and control the division of social goods. He refers to these principles as the principles of social justice, which regulate the assignment of rights and duties at the most basic level of society (Rawls 4). The principles should regulate all future agreements about social cooperation and the form of government to be established (Rawls 10). Therefore, both the principles of social justice and the conditions of the original position in which they are chosen are of the utmost importance for securing justice.
Rawls outlines the conditions of the original position which are necessary to ensure that the principles chosen to regulate the basic institutions of society produce the most just outcome possible. The conditions are defined by his “relevant considerations restraint,” which aims to exclude arbitrary information, such as corporate interests, from the process of deliberating about the principles of social justice. In order to deliberate without the consideration of arbitrary information, people must do so behind a “veil of ignorance,” meaning they must assume that they have no knowledge whatsoever of their social position or natural advantages they have been born with. This ensures fairness in the choosing of principles, because it eliminates the possibility of some people having an advantage over others, as “all are similarly situated and no one is able to design principles to favor his particular societal condition” (Rawls 11). This practice protects everyone’s fundamental liberties, because under conditions of uncertainty, there are conditions that every rational person would rule out. This filters irrelevant information out of the decision making process about the principles to govern the basic institutions of society.
To illustrate Rawls’ theory more clearly, he provides the formulation of two principles, which he believes that all reasonable people would ultimately agree to in the original position. The two formulated principles are as follows: (1) each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others, and (2) social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage and (b) attach to positions and offices open to all (Rawls 53). The first principle guarantees that the fundamental liberties of all citizens are protected. It would therefore be impossible for the society to, for example, ban working unions, as this would violate citizen’s inalienable liberty of freedom of assembly. The second principle aims to protect the person who occupies the least advantaged position in society. Accordingly, a tax break which only benefits a minority of wealthy individuals would not be permitted in a Rawlsian society, because it would be an unequal policy, which does not benefit the least advantaged position. However, a progressive income tax which pays for universal healthcare, which is inherently unequal would be allowed under Rawls’ principles of social justice, because the tax benefits the least advantaged position in the society.
In conclusion, Rousseau’s contribution of the concept of double generality to the history of social contract theory is major and effectively realizes his conception of freedom, while protecting the rights of citizens. However, Rousseau’s theory is only possible in a small state in which all of the citizens could regularly convene and reasonably agree on legislation for multiple issues. It seems implausible for modern day America, for example, to attempt to apply double generality in its legislation, even on a local scale. The population is simply too large to convene regularly or to expect unanimous decisions on all issues.
More significantly, it can be seen that by filtering out considerations of social and natural endowments, the veil of ignorance adopted in the original position accomplishes the very goal that Rousseau’s theory of double generality is intended to achieve. In fact, behind the veil of ignorance, the interest of the general will would be even more secure than it would be under double generality alone. This is true, firstly, because the veil of ignorance is to be applied to determine principles which regulate all basic societal institutions, rather than applying to the institution of legislating alone, as double generality does. This means that Rawls’ theory is more complete and has a wider reach than that of Rousseau. Furthermore, the more nuanced nature of Rawls’ theory allows his method to more effectively achieve justice than that of Rousseau. Rousseau’s theory of double generality requires the laws be broadly applicable, making them less specific and effective compared to Rawl’s proposed guidelines. Rawls’ approach allows for specific subjects in laws, because if they adhere to the guiding principles of social justice, there is no possibility for the law to give anyone a special advantage that does not also benefit the least advantaged group in society. Rawls’ suggested legislative model allows for greater nuance than that of Rousseau, and accordingly, it allows for a greater possibility of writing legislation which achieves its desired end. Therefore, societies should adopt Rawls’ method for determining principles of social justice in order to maximize the potential for justice.
Rawls, John. A Theory of Justice. Revised ed., The Belknap Press of Harvard University Press, 1999.
Rousseau, Jean-Jacques. On the Social Contract, with Geneva Manuscript and Political Economy. Edited by Roger D. Masters. Translated by Judith R. Masters, St. Martins Press, 1978.
Wenar, Leif. “John Rawls.” The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta. Spring 2017 ed., The Metaphysics Research Lab at Stanford University, plato.stanford.edu/archives/spr2017/entries/rawls/.
Acknowledgements: I would like to thank Dr. Alexander Kaufman for excellent lecturing and helping me develop this paper. I would also like to thank Chris Byron for helpful comments and suggestions, encouraging me to submit my essay to The Classic Journal, and his continued support. Lastly, I would like to thank my mother, Erin Donohue, for her long-standing and continued support of my academic career.