Rousseau, Theorist of Constituent Power
Oxford Journal of Legal Studies, 2016
26 Pages Posted: 25 May 2016 Last revised: 26 Sep 2017
Date Written: May 23, 2016
Rousseau has always had an uncertain relationship with the theory of constituent power. On the one hand, his distrust of political representation and support for popular sovereignty seems consistent with the idea that the people has an unlimited constitution-making power. On the other hand, if from those views about representation and sovereignty it follows that Rousseau is a proponent of direct democracy, then there seems to be no place in his thought for a theory that presupposes, above all, a separation between those who exercise a delegated authority (e.g. legislators), and those who possess an original constitution-making power (the people). In a legal order in which all laws must be directly made by the people such a separation is absent: the constituent and the legislative body are one and the same. It is therefore not surprising that Rousseau’s name is largely absent from contemporary literature on constituent power. In this paper, however, I will show that once Rousseau’s particular conception of law, as well as his distinction between sovereignty and government, are properly understood, one finds in his work not only the first major formulation of the theory of constituent power, but also a careful exploration of its implications for actual constitutional practice.
Keywords: Rousseau, constituent power, representation, direct democracy, sovereignty, social contract
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