Rousseau, Theorist of Constituent Power

26 Pages Posted: 25 May 2016 Last revised: 26 Sep 2017

See all articles by Joel I. Colón-Ríos

Joel I. Colón-Ríos

Victoria University of Wellington - Faculty of Law

Date Written: May 23, 2016

Abstract

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

Suggested Citation

Colón-Ríos, Joel I., Rousseau, Theorist of Constituent Power (May 23, 2016). Oxford Journal of Legal Studies, 2016; Victoria University of Wellington Legal Research Paper No. 128/2017. Available at SSRN: https://ssrn.com/abstract=2783527

Joel I. Colón-Ríos (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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