Rousseau on Fundamental Law

Melissa Schwartzberg

Political Studies, 2003, vol. 51, issue 2, 387-403

Abstract: How can we understand Rousseau's use of entrenched fundamental law? Given that absolute sovereignty is of paramount importance to Rousseau, and given that he rejects the possibility of binding the future, fundamental law might be viewed as a paradoxical restraint on the sovereign. However, through a consideration of their substantive form, and of the procedural mechanisms of enactment and abrogation, these laws are shown to serve an ‘enabling’ purpose. For Rousseau, fundamental law does not constrain the sovereign will, but is constitutive of the sovereign or transforms its operation with respect to morality and justice. Fundamental law should be understood to enhance the capacity of the sovereign; this reading also explains the most familiar limitation that does not take the form of a fundamental law, the double‐generality requirement.

Date: 2003
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