Rousseau and the Death Penalty

This is a lecture on Social Contract from last week. I’m posting it if it’s of interest to anyone and also to send the link to students, since I just couldn’t get to the end of it. It covers Books II-IV, using the discussion of the death penalty as the peg:

Attentive readers, please do not rush to accuse me of contradiction. I have not been able to avoid it verbally [dans les termes], in view of the poverty of language, but wait.

Jean-Jacques Rousseau (SC II.4.2, footnote)

Last time, we spent a great deal of time dealing with the untold history left silent in the comma above, which marks a hiatus between the fact that we are and were born free and yet everywhere are in chains. Last time, also, I emphasized a certain rationalism at the heart of Rousseau’s efforts here, a certain set of claims that go against readings of Rousseau that privilege his proto-Romanticism. In Emile, the fictionalized account by Rousseau of the teaching of the character of that name, he hopes to bring out in Emile a natural pity that does not become particularized to this or that individual, but to all of mankind in general. This pity, this sentiment, is at the heart of the educative process in that book and will be the target of some of Arendt’s most scathing sentences regarding Rousseau. In the Bloom translation, Rousseau writes: “to prevent pity degenerating into weakness,” by making him think of his “private interest” and not his “species,” “and extend[ing] it to the whole of mankind. Then one yields to it only insofar as it accords with justice… For the sake of reason, for the sake of love of ourselves [and here, we must read: a love of the part of ourselves that is humankind, not a particular], we must have pity for our species still more than for our neighbor, and pity for the wicked is a very great cruelty to men” (p. 253). Perhaps it is the cruelty of the cold still visited upon me as I type this up last night, but it is indeed cruelty of which we will speak today, particularly the cruelty of the penalty of death, which, as visited upon the wicked, is something of an anti-cruelty cruelty, a pityless cruelty that is also a sign of man’s great pity for all. I will spend much time on the passages of Book II, chapter five, “Of the Right of Life and Death [Du droit de vie et de mort],” which I will use both to get our bearings on the work and the key terms (sovereignty, law, general will, civil religion, etc.) that give it sense. We will read each and every word today of this chapter—a whole chapter!—starting from the beginning:


[1] It is asked [by whom?] how individuals [les particuliers] who have no right to dispose of their own life can transfer to the Sovereign this same right which they do not have. The question seems difficult to resolve only because it is badly put [by the presumed person who has only fictionally asked this, so, uh, take that!]. Everyone has the right to risk his life in order to save it. Has anyone ever said that a person who jumps out of a window to escape a fire is guilty of suicide? Has that crime ever been imputed to a person who dies in a storm, although he was not aware of the danger when he out? (II.5.1)


The logic here is nothing short of vertiginous, if not rigorous and canonical. We have no right to kill ourselves, but can provide that right through the contract to an association that will do much the same, by the logic that we can so easily differentiate those moments when a suicide has been wanted or not; there is no logic of the unconscious here. But while we don’t have this right to our own death, we have a right to “risk that life,” even if the whole notion of a droit or right or law has no meaning outside of the social contract itself, which means, as we will see, that a life risked and at risk is that very “life” that is “a conditional gift of the state.”


We know well now that that the social contract was to give back to those contracting freedom and equality in civil terms what they enjoyed in the state of nature [see my rather basic diagram attached]. The aporia or perplexity that social contract theorists, perhaps since Socrates’ invocation that he was to be killed by Athens and that remaining there was not a suicide, is that if each cannot dispose of their own life. And yet they transfer, or better, come upon an entity that has a right over life and death once they enter into this contract, since this was never a right to be “transferred” in the first place since one doesn’t have that right. (For those Freudians in the room, Rousseau does not admit there is a death drive, only an amour de soi that is the natural drive for life.)


We know also by now that Rousseau has inverted monarchical sovereignty while retaining all of its classical traits: it is indivisible (like pregnancy, I am either sovereign or not and sovereignty by definition cannot be shared), it is inalienable, it enjoys a monopoly over all violence within a territory and so on: “Just as nature gives each man absolute power over his members [that is, his body parts, at least in theory, since no doubt on a daily basis, I find this a contestable claim] the social pact gives the body politic absolute power over all his members, and it is the this same power which, directed by the general will, bears…the name of sovereignty” (II.4.1). Rousseau’s sovereignty is of and for the people and their common good—not of a king and his particular will–which is another way of saying that it carries out and acts upon the general will. Let’s move to the second paragraph:


[2] The social treaty has the preservation of the contracting parties as its end. Whoever wills the end also wills the means and these means are inseparable from certain risks and even certain losses.


Let me pause mid-paragraph, since it’s crucial (at least that is what DayQuil is telling me): (1) the end of the social contract is the preservation of the members of the association (not the aggregation) as its end. Recall that the dictum of Aristotle, but also a whole tradition that followed him, was that politics was not just for the sake of living, but for living well. Here, Rousseau’s claim, which follows a line of thinking that forms in early modernity in such thinkers as Hobbes and Spinoza, is that politics is for the sake of living tout court, that it is to preserve a kind of life, even as that life is one of risk inseparable from living under such a state to begin with: “their very life which they have dedicated to the State is constantly [but not always!] protected by it, and when they risk it [see, it’s not constant!] for its defense, what are they doing is but returning to it what they have received from it”—that is, the life that they are now risking. One wills the end that is one’s preservation and, by Rousseau’s logic, one thus wills the risk to which it is put. Let’s continue:


Whoever wants to preserve [conserver] his life at the expense of others ought also to give it up for them when necessary. Now, the citizen [that is, the member of the association formed from the social contract, the individual who was once a man but is no longer merely so] is no longer judge of the danger the law wills him to risk [again, risk (risque): a logic of security and risk informs every line here] and when the Prince has said to him, it is expedient [expédient; not even necessary, merely useful, which leaves it not to reason but to a certain logic of utility that can only be particular and not general] to the state that you die, he ought to die [il doit mourir]; since it only on this condition that he has lived in security [and risk!] until then, and his life is no longer [sa vie n’est plus] a bounty of nature [that is, as it was in the state of nature, since we are now under the contract] but a conditional gift of the state [un don conditionnel de l’État].


Let’s explain key terms in turn: first, a law is formed by the sovereign; it is the verbal act by which the sovereign operates in terms of the general will. Where previous sovereigns, as kings and princes, had been both the providers of the law and judges over particular crimes, one lived only by decree. Here in the SC the right to give the law is by the people; the Prince mentioned is merely adjudicating particular circumstances based upon what has been directed by the people: “[W]hen the whole people enacts statutes [i.e., laws] for the whole people [there’s the point: a law is universal or it is not a law, but merely a decree, which is something directed at one or a set of particular people] it considers only itself…Then the matter with regard to which the statute is being enacted, as is the enacting [general] will. It is this act I call law” (II.6.5). The point is that the prince will provide for judges who will apply the laws to a particular set of people; the law never applies to “any man as an individual or a particular action…any function that relates to an individual does not fall within the province of the legislative power [i.e., the power of the sovereign to make the law]” (II.6.6). The laws then are applied in general by the general will: “the law combines the universality of the will and that of the object” (II.6.7). But of course, though the sovereign people may be only be able to command in the manner of general and universal laws (the so-called “rule of law” that is at the heart of liberal theories, including that of Rousseau), there is no restriction in principle just what the sovereign (that is, the association) may command; there is thus in principle no end to it, as long as the laws are promulgated in general, and so we always worry that what is de jure may get realized de facto–that sovereignty will reach its end in a form of mob rule and totalitarianism. No doubt, just what is meant by “general” encapsulates the whole problem here since once one says one wills the ends and its means, the general will wills at the same time, it would seem, particular acts that were supposed to be outside the sovereign’s province: if it wills war, no doubt it also wills the death of scores of the contracting part; again this is definitional as per Rousseau: whoever wills the end wills the means. In the name of security your life will be risked, but it is not “your” life in any case: it is—in words that I think are dictum for all of modern politics—a “conditional gift of the state.” Take each of those words in turn: life is a conditional (not an unconditional right beyond or outside the political) gift and donation of the state; we must not think this contract theory as out to protect our life since something more–the life of the moral person beyond natural life–is at stake.


Long breather—now to paragraph three:


[3] The death penalty [la peine de mort] imposed [infligée] on criminals can be looked upon from more or less [so it’s an analogy, even if the logic of paragraph two seemed to evince no “more or less” when it came to the extent the sovereign can risk the life that is a conditional gift] from the same point of view: it is in order not to become the victim of an assassin that one consents to die if one becomes an assassin oneself …


Hence, unlike Hobbes, who at least gave you the right to try to run away since the contract was for the sake of life, one has consented to one’s assassination, to one’s murder, in short to a suicide to which you would accede, since it gives this life, this life of the murderer, a certain justice or dignity, a rational principle beyond natural life, that is, the “moral life” created by the social contract. There is all the difference between the consent that one die that is suicide and apparently the consent that one day in the name of not becoming a victim of a murder one does. Forward, now:


Under this treaty, far from disposing of one’s life (disposer de sa propre vie), one only thinks of guaranteeing it and it should not be presumed that at the time any of the contracting parties is planning to get himself hanged. (II.5.3)


Having already seen what I think is an analogy between war (where life is a conditional gift of the state) and the death penalty, Rousseau then annuls any distance in the analogy since the criminal is in fact and by right an enemy of the state, so it’s all of a piece. Paragraph 4:


[4] Besides every evil-doer [tout malfaiteur] who attacks the social right becomes a rebel and a traitor to the fatherland [la patrie] by his crimes, by violating its laws he ceases to be a member of it, and even enters into war with it. [I can never manage to jump as far as Rousseau seems to get with the next sentence; one has committed a crime, but it is so great that…] the preservation [conservation] of the State [that is, the sovereign as passive] is incompatible with his own; one of the two has to perish, and when the guilty man is put to death, it is less as a Citizen [a member of the association] than as an enemy [c’est moins comme Citoyen que comme ennemi]. [okay now I’ll skip a bit]…He must be cut off from [the state] either by exile [whew] as a violator of the treaty, or by death as a public enemy; for such an enemy  is not a moral person, but a man, and in that case killing the vanquished is by right of war. (II.5.4)


Which is to say, once one has a particular will that leads to an act against the general will, one has risked one’s life; one is “not a moral person,” and is not deserving of the pity that was said to be for mankind, which means we should ready ourselves for the pity for all that is a cruelty to the one. To repeat from Emile: “For the sake of reason, for the sake of love of ourselves, we must have pity for our species still more than for our neighbor, and pity for the wicked is a very great cruelty to men.” From here, I’ll have to cut away from my promise to read all of this chapter [though it’s almost the whole we’ll read]. Rousseau next marks out that he thinks frequent punishments show a laziness on the part of the state, for the reason I suppose that true work is not killing and such but the effort to educate those with particular wills to have their inclinations fall in line with the general will. Nevertheless, “One only has the right to put to death [I can spend forever on this, since it is the unlimited sovereign that dictates the punishments and thus the “only” is but a limitation that has no bearing], even as an example [and how far does that go?], someone who cannot be preserved without danger,” which is to say that the life risked is never that of the body politic or the state, but the risk is all on the line for the individual who contracted to form the sovereign association. Before coming back to the last paragraph of this chapter, let me quickly review the rest of our reading.


  1. First, while arguing for the fundamental rule of law, Rousseau urges in Book II for a “republic,” by which he means “any State ruled by laws,” which would fit Aristotle’s vision of a proper aristocracy and a polity where “the public interest alone governs and the public thing counts for something. Every legitimate government”—that is, any guided by the general will—“is republican” (II.6.9).


  1. Despite the fact that men will be forced to be free, Rousseau makes this striking claim in Book III: “In the strict sense of the term, a genuine democracy never has existed and never will exist. It is against the natural order [even if no politics is ever an outgrowth of the natural order] that the greater number govern and the smaller number be governed. It is unimaginable [I could spend forever just on this word usage, since it was unimaginable before that one would enter a contract willing one’s own death, which surely is something I could imagine] that the people remain constantly assembled to attend to public affairs” (III.4.3). Indeed, in words that to me are every bit as crucial as the opening lines, he writes “If there were a people of Gods, they would govern themselves democratically. So perfect a government [that is, I would think, a government that is at the same time the sovereign] is not suited to men” (III.4.8). If I seem to slip into a certain sarcasm regarding these claims, that is not the case: I see Rousseau as trying to hold together a number of claims canonical up to this day.


  1. The democratic problem is based in part on the problem of the law giver introduced in Book II: “How will a blind multitude, which often does not know what it wills [even as Rousseau constantly avers what he knows that it doesn’t or can’t will, such as suicide] because it rarely knows what is good for it [e.g., suicide?], carry out an undertaking as great, as difficult as a system of legislation?” (II.6.10). Enter the lawgiver (législateur), who is “the mechanic who invents the machine” of the political for a population that hitherto would be an aggregation. He is merely a magistrate, not a sovereign, since he merely produces laws for the people, who will somehow become able to ex post facto will the law, given their meager state. After all if we have been in chains and have been obeying for so long, how would we ever take up the mantle of sovereignty? We will have gone from no power (as we are in chains) to obtaining an absolute one. Let’s see what Rousseau says about this:

Anyone who dares [ose] to institute a people must feel capable of, so to speak, changing human nature; of transforming each individual who by himself is a perfect and solitary whole [that would be part of an aggregation, or indeed still within the state of nature] into part of a larger whole from which that individual would as it were receive his life and being [en quelque sorte sa vie et son être]; of weakening man’s constitution in order to strengthen it; of substituting a partial and moral existence for the independent and physical existence we have all received from nature. (II.7.3)


Again, we get a donation, a giving of life through the institution of the state, where we receive a higher-than-natural life, a rational and moral one that is the true life and being that nature by itself could never provide. Despite what will come, this is Christian through and through. You can see—or some who have studied him can see—just why I mentioned Kant the other day. Can I also add that this voice of the law giver is theological: we can’t imagine a people of Gods, but we can, Rousseau says, a “a true miracle” that this voice of reason provides to the body politics. He then discusses what people are fit for governance: (1) they have a union of origin, interest, or convention, but have “not yet borne the true yoke of laws” (II.10.5); (2) Does not have a deep rooted culture or superstitions; (3) is not about to be overrun in an invasion; (4) is a place where everyone knows one another; (4) has necessary resources; (5) neither too rich or too poor; (6) one “which has the stability of an ancient people and the docility of a new one. (II.10.5-6). Books III and IV, then, largely attend to the job of the different types of governance, with the maxim that that the state that needs to govern least governs best.


Finally, Book IV ends with a chapter on civil religion, with which Rousseau attempts to think through how to inculcate a people, not just by the “secret” mission of the original lawgiver, with an ability to think about more than their partial inclinations. This section remains scandalous, since Rousseau’s suggestion is not far from what we’d take to be modes of propaganda, though at the time of his writing it was the far most controversial element since it suggests that Christianity was useless in providing for social patriotism and solidarity. This would seem to be the upshot of a religion promising otherworldly bliss, even as I would argue that Rousseau himself promises a more-than-natural life (the moral life) that is a gift of the state and reason. What is also notable is that, as many commentators note, Rousseau until these final pages avers not a word on just what laws an association should put in place, though he also accepts, against his earlier claims that everyone should know one another and have some union of interests and such, that there would perhaps be religious pluralism and thus the need to tolerate different views on matters of the holy. Thus we get Rousseau providing his first non-abstract vision of just what one of the laws would be.


But perhaps presaging another lack of imagination—one that the 20th century and all manner of latter day technics subjectivizing each us perhaps provides—he argues that governments should be modest in religion, given that one can never know the internal thoughts of a given people. We have witnessed, in multiple variants, just how limited this conception would turn out to be. In any event, like Nietzsche after him, Rousseau sees the religious as particularly good at instituting and maintain civil power. As such Rousseau’s civic religion will bolster our inclinations toward what reason dictates by affirming the existence of both God and the afterlife, while arguing that in that afterlife the good will be rewarded and the wicked punished; we are not far from Plato’s Myth of Er and frankly any religion given by the powers that be. But Rousseau is also clear that beyond these beliefs, any church that refused salvation for another church would cease to be citizens of the state. As such we have, as always in Rousseau, a double tradition coming out of his work: a push for methods (the civic religion) of coercion now found anathema, along with a striking pluralism seeming before its time. But I wonder—and I just push this forward as a question—if always pulling apart the individualism and the communitarianism in Rousseau as two strains at odds is but a simplistic way to read the past in terms of the debates of the present.


In any event, having now dubbed the state itself sacred through this civic religion, we can now come back to the death penalty. As he writes later: “To die for one’s country is to be a martyr, to break the laws is to be impious, and to subject the the guilty to public execration is to deliver him to the wrath of the Gods; sacer estod.” (IV.8.18) Having written about this in a book, I will leave aside the old Roman notion of the homo sacer and those left to the wrath of the Gods, not least since we will find ways to discuss this through Arendt in ways more helpful for figuring out just what she is up to.


Now to the last paragraph. Let’s remind ourselves that in the right over life and death, the old sovereign (that is, the monarch) always had the right to kill and to let live, via the pardon. But in Rousseau’s case, the government has the right over life and death, applying the law that the sovereigns provide. Here we get Rousseau and Jean-Jacques (the reference to the way in which R. always comes back to the unfathomable singular being of J-J) and a confession that confesses nothing (forgive the length in this small pièce de théâtre on forgiveness):

[7] As for the right to pardon, or to exempt a guilty man from the penalty prescribed by law and imposed by a judge [again, not the sovereign, since a particular act never falls under the general laws the citizens provide], it belongs exclusively to the one which is above judge and law; that is to say to the sovereign. [There is an absolute asymmetry here: the sovereign can’t rule over the particular except in this exception of circumstances, the pardoning of the one when their own judges had found such guilt that the person isn’t even in the association; they are pardoning one who has been expelled to the state of nature.] And even the Sovereign’s right in this is not altogether clear [!] and the occasions to exercise it is rare. In a well-governed state there are few punishments, not because many pardons are granted, but because there are few criminals; When the state is in decline the large number of crimes ensures their impunity….Frequent pardons proclaim that crimes will soon no longer need them, and anyone can see where that leads [again, I love this imagination of Rousseau: can anyone indeed see this?]. But I feel my heart murmur and check my pen; let us leave these questions to be discussed by the just man who has never lapsed, and never himself been in need of a pardon. (II.5.7)


Here we find the pardon, indecidable between pity and cruelty: pity for the man; cruelty to those who have pardoned, a self cruelty in a chapter that again and again denounces any cruelty to the self, if not the other (recall: “pity for the wicked is a very great cruelty to men”). We reverse the usual order: a pardon is not for the sake of pity, but is a cruelty, while pity (for all) is what drives la peine de mort, a last and lasting inversion of terms from the one who inverted the sovereignty of the monarch in the name of a people.