Paradoxes of democracy: Rousseau and Hegel on democratic deliberation

1. Introduction

As relevant literature in democratic theory has observed, Rousseau offers a paradigmatic expression of what has been labelled the ‘paradox of democracy’. Introducing the enigmatic figure of the Lawgiver in Book II, Chapter 7 of the Social Contract, indeed, he suggests that citizens cannot really create good laws unless they are already governed by good laws: ‘The social spirit which is to be the work of the institution would have to preside over the institution itself, and men would have to be prior to laws what they ought to become by means of them’ (Rousseau 1997b, 71). Connolly paraphrases Rousseau as follows: ‘For a general will to be brought into being, effect (social spirit) would have to become cause, and cause (good laws) would have to become effect. The problem is how to establish either condition without the previous attainment of the other upon which it depends’ (Connolly 2004, 138). Honig speaks of a ‘chicken-and-egg circle’ that shows how ‘Popular sovereignty is always haunted by heteronomy’ because ‘The lawgiver may get the law really right, but he enables the people’s self-governance by compromising their autonomy’ (Honig 2009, 20). Accordingly, Benhabib contends that the Lawgiver establishes ‘a trade-off between legitimacy and rationality’ insofar as ‘an instance outside the united will of the people emerges whose rationality transcends the legitimacy deriving from the people’ (Benhabib 1994, 29). As Shklar remarks, then, in Rousseau, ‘the people is a beneficiary of justice in society, rather than its creator’ (Shklar 1969, 182). The conundrum is critical because it risks undermining the very foundation of democracy: how may the individuals freely convene as equal participants without being already directed by a leader, as does the rich in Rousseau’s Second Discourse? ¹ Is a general will necessary prior to the association from which it should arise? If it is, where does this will come from and who articulates it?

My goal is to prove that this paradox is not contingent on Rousseau’s own account of the state but is a structural effect of the contractarian rationality he employs. More precisely, I argue, the dilemma has to do with the difficulties that arise from the social contract’s necessity of immediately representing citizens as an undifferentiated totality, that is, as a people: even though the Genevan is known for having refused to represent the popular will, indeed, it is my contention that representation unavoidably reemerges in his Republic from top to bottom. To make my point, I elaborate on Hegel’s critical response to Rousseau. Not only does Hegel lucidly frame the theoretical grounds of the democratic paradox but also fulfils the ambitions of Rousseau’s deliberative conception of democracy without simply rejecting it.

In section 2, I begin by tracing the origin of the paradox back to Hobbes’s theory of representativity. In so doing, I use Hegel’s analysis of the concept of contract to show that the contractual construction generates a contradiction between the standpoint of authorization and that of representation. I then proceed to illustrate how the structure of representation affects the major theoretical stages of Rousseau’s social contract, thus reproducing the same inconsistency in each of them: the Lawgiver (section 3), the majority rule (section 4) and the executive power (section 5). In the conclusion, I suggest reading Hegel’s philosophy of right as a successful attempt to coherently engage with the paradox staged by Rousseau (which I briefly recapitulate in section 6) and to provide a positive answer to the key questions raised by the Social Contract. Approaching Rousseau and Hegel from this angle, I contend, provides political theorists with precious insights to delve deeper into the subject of democratic deliberation, with special regard to the crucial dilemmas related to effective political participation in a pluralistic society.

2. The problem of representation

Rousseau famously rejects the possibility of expressing the popular will through representatives: ‘the will does not admit of being represented: either it is the same or it is different’ (Rousseau 1997b, 114). But what does he mean by ‘representation’? Although he claims that ‘The idea of representatives…comes to us from feudal government’ (Rousseau 1997b, 114), Rousseau’s criticism applies in fact to Hobbes’s theory, as Robin Douglass has convincingly argued (see Douglass 2013). For Hobbes, a representative is not a delegate, in the sense that he does not present someone’s preexisting will to someone else. ² Rather, representing means bringing the will of the whole body politic into existence, such that whatever the representative does must be regarded as though it was willed by each and every citizen. Hobbes’s sovereign does not merely stand for the people but literally is the people, ³ and, as a consequence, there can be no people without representation: ‘The People is not in being before the constitution of government, as not being any Person, but a multitude of single Persons’ (Hobbes 1987, 110). Accordingly, the representative’s decision is always legitimate regardless of its content, which citizens cannot judge or resist as far as their wills are already contained in it.

As a matter of fact, however, the Hobbesian concept of representation would make no sense without that of authorization – not even in sovereignty by conquest (see Skinner 1999, 7–8). In book I, chapter 16 of Leviathan, where Hobbes provides the clearest exposition of this mechanism, he defines political authority as a relationship between a multitude of authors, namely the individuals contracting with one another, and an actor who brings their common will to presence, be it a single individual or an assembly. If this is the case, the paradoxical logic we observe in Rousseau is already visible in Hobbes and consists precisely in the dialectic between authorizing and representing: the legitimate will belongs to citizens (the representative is not even responsible for what he does, his subjects are), but it can only exist in the shape of someone else’s will. To put it differently, we find ourselves in a loop between immanence and transcendence: sovereignty is immanent in the will of each and every individual, but the power that results from it is transcendent because these wills can have no determinate object unless a further individual brings the collective will into being. In Baumgold’s words, the paradox lies ‘in the joint claims that consent is the foundation of legitimate authority and that sovereignty is necessarily absolute’ (Baumgold 2009, 207).

Since his 1802 essay on natural law, Hegel shows how this dilemma is intrinsic to social contract theories, as they are unable to think of ‘the absolute unity of the one and the many’ (Hegel 1999, 109). The multiplicity of citizens and the unity of their common will, which are formally identified through the rationale of authorization, remain in fact two conflicting moments that fall out of one another: ‘the positive unity, expressing itself as absolute totality, must…be added on to this multiplicity as a further and alien factor’ (Hegel 1999, 112). Hobbes makes it clear when he says that ‘It is the unity of the representer, not the unity of the represented, that maketh the person one’ (Hobbes 1998, 109). The immediate coincidence of multiplicity and unity is indeed contradictory, as Plato’s Parmenides illustrates in the famous inquiry concerning the many and the one: ‘The nature of unity is surely not also that of sameness…Because when something comes to be the same as something, it does not thereby come to be one.…If something comes to be the same as many, it necessarily becomes many but not one’ (Plato 1997, 21 [139d]). This explains the unavoidability of representation in Hobbes because the unity of many individuals can only exist beside them as a separate determination but also its paradoxicality: if such a representation falls out of the whole which it represents, then the whole is not a whole, and ‘if being is not a whole through having had the attribute of unity imposed upon it, and the absolute whole exists, then it turns out that being lacks something of being’ (Plato 1921, 369 [245c]).

Hegel’s analysis of the concept of contract in his Philosophy of Right further clarifies this puzzling structure. A contract establishes what Hegel calls an ‘identical will’, that is, a universal will expressing the identity of the particular wills that have made the contract. Their relationship, indeed, requires at least one content of the will that is identical in all of them. The contradiction lies however in the fact that such a universality leaves all particularities outside and stands before them as something different from them: ‘In contract, we had the relationship of two wills as a common will. This identical will, however, is only relatively universal – a posited universal will – and is thereby still in opposition to the particular will’ (Hegel 2014, §81 A.). As a consequence, the actuality of the contract is not the immediate identity between the particular and the universal, which it affirms when it postulates the ‘identical will’, but their absolute difference because a universal that stands in front of the particular is in turn only something particular (it is just a generalized particular determination that remains indifferent as to all other possible contents of the will).

Now, the fact that the universal will necessarily comes forward as a particular will vis-à-vis other particular wills implies precisely that someone must represent it empirically. When we apply this logic to the state, Hegel warns us, we inevitably establish a coercive bond between such a legitimate representation of universality and the individuals who have authorized it (in the literal sense that they are its authors): ‘the association is an external quality for the associated many, whose relationship with it can only be that between ruler and ruled…within which only domination and obedience are possible’ (Hegel 1999, 113). The social contract being grounded upon subjective choice, in the sense that contractors ‘relate to each other as immediate self-sufficient persons’ (Hegel 2014, §75), the generality which it posits ‘leaves the remaining, wholly universal particularity of individuals still in mutual opposition, including all of their contingency and arbitrariness’ (Hegel 1995, 90). As a result, any future identification between the individual and the universal – that have been declared in advance to be identical – is in fact purely accidental and must be artificially produced by an external command.

This is why for Hegel the only actual experience we can make of the social contract is its negation, that is, the ‘wrong’ or crime, which must be in turn negated by the coercive enforcement of the law: ‘since the individuality of the person was thus made the basis, the state became a state based…on coercion; for the individual subjects it became a third party’ (Hegel 1995, 88). This is what Hegel calls Notstaat or state of necessity, which regards the polity only as a mass of competing individual needs – as ‘civil society’ – and the government only as an exterior force that limits them – as ‘police’. Universality can thus emerge just as absolute necessity against the absolute contingency of the individuals’ subjective motives because no one is really capable of recognizing herself in it (see Huddock 1994). The social contract is consequently

the view, especially prevalent since Rousseau, according to which the substantial basis and primary factor is supposed to be not the will as rational will which has being in and for itself or the spirit as true spirit, but will and spirit as the particular individual, as the will of the single person in his distinctive arbitrariness. Once this principle is accepted, the rational can of course appear only as a limitation on the freedom in question, and not as an immanent rationality, but only as an external and formal universal. (Hegel 2014, §29 R.)

We now better see why Rousseau refuses Hobbes’s theory of representation. ⁴ Accepting it would entail for the Genevan to admit that citizens have no common will of their own and that their very unity is alien to them. Hobbes must be therefore turned upside down: not ‘the sovereign is the people’ but ‘the people is the sovereign’. Such an inversion requires nonetheless understanding how unity – the general will – can be immanent in a multiplicity of self-subsistent individual wills. The answer, I argue, is that it cannot: as Hegel’s scrutiny of the contract illustrates, Hobbes is perfectly consistent when he says that ‘A Multitude of men, are made One Person, when they are by one man, or one Person, Represented.…And unity, cannot otherwise be understood in multitude’ (Hobbes 1998, 109). As long as Rousseau continues to postulate ‘a blind multitude’ (Rousseau 1997b, 68) as the foundation of the state and bases popular sovereignty on a free contract between individuals, he cannot really get rid of the Hobbesian process of representation and is obliged to make it resurface one way or another. My hypothesis is that Rousseau splits representation into three intertwined moments and reproduces the ‘paradox of democracy’ in each of them.

3. Representation reloaded 1: The Lawgiver

The figure of the Lawgiver, on which the discussion concerning the ‘paradox of democracy’ has mostly focused, is only the first occurrence of the reemergence of representation in Rousseau’s Social Contract. Rousseau acknowledges indeed that a multitude of citizens can have no unity of purpose in itself because, except for the constituent ‘identical will’ that has established their association, each individual keeps her own subjective motives. The multitude ‘does not know what it wills’ (Rousseau 1997b, 68) qua multitude. Articulating a general will thus requires an act of representation in the literal sense: any legislative process must render present something that is absent in the multitude. ⁵ This means that citizens can only express such a will provided that someone shows them what they want, thus objectifying their unity outside of them – including the ‘existential’ unity of mores because citizens have no ‘deep-rooted customs’ (Rousseau 1997b, 77) at this stage and for Rousseau only ‘legislation does give rise to them’ (Rousseau 1997b, 141), not the other way around.

The idea of taking the popular will as a foundation thus exposes itself to the paradox of infinite regress: saying that the general will belongs in citizens requires an external standpoint to account for the correspondence between what we say is the general will and its empirical manifestation. Put differently, if from an empirical point of view citizens can only express what Rousseau calls the ‘will of all’, for each of them casts an individual vote, then a further decision must determine the common factor that epitomizes the generality of this sum of separate wills; if we suppose that this decision is made by the general will itself, we need a further justification and so on. Meckstroth explains the impasse of popular foundation as follows: ‘either the authority of that foundation is independent of the people’s choice, in which case it is inconsistent with democracy, or else it depends on that choice, in which case one needs a further foundation to assure us it is what they have chosen’ (Meckstroth 2015, 19). The Lawgiver puts an end to such a regress precisely because he proposes determinate contents that fill the otherwise empty space of the popular will. As much as Rousseau denies that he is a representative, then, the Lawgiver does represent the totality of citizens by putting their general will into shape.

The paradox staged by the Lawgiver is inherent in the many-one dialectic, as we saw. Rousseau is aware that the will of the people is not identical with the wills of the multitude because postulating the immanence of the political will in citizens demands postulating the transcendence of the viewpoint that declares such a will to be immanent in them. Not by chance, he induces us to believe that the Lawgiver comes from elsewhere and leaves him out of the body politic: ‘This office which gives the Republic its constitution has no place in its constitution’ (Rousseau 1997b, 69). What this figure indicates is that an original act of institution is required as a condition for the emergence of the general will and that such an act cannot be identified with the citizens’ self-rule (i.e., with the general will). Although he stresses that the Lawgiver ‘has nothing in common with human empire’, for ‘he who has command over the laws [should not] have command over men’ (Rousseau 1997b, 69), Rousseau is in fact obliged to acknowledge that men must be already governed by someone to freely give themselves a government. To prevent this paradox from neutralizing the autonomy of democratic deliberation, however, he confines it to the sole moment of foundation (see Connolly 2004, 138–39): ‘At the birth of societies,…it is the chiefs of republics who make the institution, and after that it is the institutions that form the chiefs of republics’ (Rousseau 1997b, 69).

At this point, it might be legitimately objected that, unlike Hobbes’s sovereign, Rousseau’s Lawgiver has not been authorized to represent the will of the whole people. As a matter of fact, he does not really make the laws and only the popular assembly can validate them: ‘only the general will obligates particulars, and there can never be any assurance that a particular will conforms to the general will until it has been submitted to the free suffrage of the people’ (Rousseau 1997b, 70). To this purpose, the majority rule is necessary. We may however ask whether voting by majority really fixes the problem. If citizens are unable to determine the common good and need an enlightened individual to show it to them, how could the majority of them know whether this individual’s suggestions are good or bad? If they had such a discernment, why would they need a Lawgiver? If we assume that citizens are not yet constituted as a general will at this stage, we will never know whether the Lawgiver was a charlatan or a wise man (see Honig 2009, 12–39): the majority may well have approved bad laws or rejected good ones. In any case, it is plausible that citizens will pass most of the Lawgiver’s proposals, for the simple reason that he must have already persuaded them – or the majority of them – to regard him as a Lawgiver. The suffrage is likely to be just the ratification of a decision that has already been made outside of the popular assembly.

4. Representation reloaded 2: The majority rule

The majority rule is the second occurrence of representation and the true basis of the first one. To understand how the majority implies a representative process, let us suppose that after the foundation of the Republic citizens no longer need a Lawgiver and determine the common will by themselves in popular assemblies, as Rousseau suggests. How do democratic suffrages work? Rousseau describes them as follows: ‘When a law is proposed in the People’s assembly, what they are being asked is…whether it does or does not conform to the general will, which is theirs; everyone states his opinion about this by casting his ballot, and the tally of the votes yields the declaration of the general will’ (Rousseau 1997b, 124). But the problem arises again: if the general will cannot just be the ‘will of all’, is it not possible that only a few citizens see what it really is, or even that no one does? They risk remaining stuck in a potentially endless debate, which Rousseau abhors. ⁶ As a matter of fact, this difficulty does not depend on their immaturity but on the fact that they keep expressing only a sum of individual opinions: Rousseau’s citizens continue to be ‘blind’ not because they are culturally underdeveloped but because they keep acting as a multitude. The problem of how to unify them has not been solved by the Lawgiver but is still in place.

Now, the only way to determine the common will of such an association is the same as before: a further will must represent it, which in this case is the will of the majority. The majority rule provides indeed an empirical parameter recognized in advance as the unappealable manifestation of the general will ⁷ : ‘when the opinion contrary to my own prevails, it proves nothing more than that I made a mistake and that what I took to be the general will was not’ (Rousseau 1997b, 123). This means that a particular view – a particular content of the will shared by a certain number of voters – is a priori legitimated to articulate the universal view. In other words, a part stands for the whole. ⁸ If there was no such rule, there would be no univocal criterion of deliberation for Rousseau.

This interpretation may seem at first untenable because Rousseau’s intention is in fact to play the majority against representation. Majority decision should secure the citizens’ legislative autonomy for the simple reason that it requires everyone to vote freely. Putterman observes for instance that ‘neither does Rousseau intend nor does his constitutional plan allow for representation’ (Putterman 2003, 460) because the general will ‘is entirely vested in the majority’ (Putterman 2003, 461) and ‘majority rule is possible even in the presence of agenda-setting experts’ (Putterman 2003, 459). This argument is however misguided. As in Hobbes, representation here has nothing to do with appointing delegates or officers and does not consist in fulfilling a mandate concerning determinate affairs: quite on the contrary, it consists in being empowered to determine the indeterminate will of the entire people. ⁹ To this purpose, as we saw, a previous universal act of authorization is necessary and Rousseau is explicit in this regard. Having accepted the majority rule through the original contract, citizens have unanimously authorized the majority to enunciate the will of the whole, no matter what choices shall be made in this or that voting session and independently of the empirical composition of the majority itself: ‘The law of majority rule…presupposes unanimity at least once’ (Rousseau 1997b, 49), but, ‘Except for this primitive contract, the vote of the majority always obligates all the rest’ (Rousseau 1997b, 124). The majoritarian will, in other words, still relies on the foundational ‘identical will’. Although Rousseau says little as to how the laws are to be proposed to citizens, ¹⁰ then, Putterman is right to say that commissioners and experts do not run the risk of representing the people’s will, but this is precisely because Rousseau assigns this task to the majority.

Two important consequences follow. Firstly, we must acknowledge that the principle of authorization was actually operative since the beginning: the Lawgiver was not authorized to represent the people, but the majority which he managed to persuade was! He could not bypass the majority rule but could ‘create’ a majority to orient deliberation. Secondly, we have to admit that even after the Lawgiver has left, some kind of Lawgiver must always operate in the polity, for the majority is not really self-sufficient as Rousseau pretends: someone is required to guide the assembly and form majoritarian consensus – parties and party leaders, for example – thus providing particular contents that articulate the will of the whole. The Hobbesian nexus between authorization and representation, which the Lawgiver seemingly avoided, is fully working in Rousseau: legitimacy depends on an a priori valid standard – the majority – unanimously designated to represent everybody, such that the general will coincides with a particular view that necessarily separates itself from citizens to objectify them as ‘one’ people (see Lee 2001).

This means that the general will is not really different from the ‘will of all’, as Hegel reproaches Rousseau with:

What is universal about the Concept is indeed not just something common against which the particular stands on its own; instead the universal is what particularizes (specifies) itself, remaining at home with itself in its other.…The distinction…is strikingly expressed in Rousseau’s well-known Contrat social, when he says that the laws of a State must emerge from the general will (the volonté générale), but that they do not at all need on that account to be the will of all (volonté de tous)…. Rousseau would have achieved something sounder if he had kept this distinction in mind all the time. (Hegel 1991, 240–41)

5. Representation reloaded 3: The executive power

The third and most problematic occurrence of representation is the executive power. Rousseau concedes that the government is a representative power, but, in principle, not in a Hobbesian sense. Having distinguished between the will and the force that realizes it, the government is only authorized to enforce the sovereign will, not to enunciate it, a responsibility that concerns exclusively the popular assembly: ‘The people cannot be represented in its legislative power, but it can and must be represented in its executive power’ (Rousseau 1997b, 115). Whereas Hobbes’s representative is the sovereign, then, Rousseau’s Prince is just a minister of the sovereign ¹¹ : ‘The Government receives from the Sovereign the orders which it gives the people’ (Rousseau 1997b, 83). As soon as we further explore the concept of executive power, however, we see that it does not really work the way Rousseau would like it to.

As a matter of fact, the Genevan himself acknowledges that the distinction between a legislative and an executive function is tricky, for it appears to be at once necessary and inessential: necessary, because the popular assembly can only deliberate about general matters, not manage every single case; inessential, because the government cannot be a real power separated from popular sovereignty, otherwise there would be two sovereigns in the state. If sovereignty is one and indivisible, Rousseau claims, then the government’s acts must be ‘mere emanations’ (Rousseau 1997b, 58) of the unique power of the people and ‘the Prince’s dominant will is or should be nothing but the general will’ (Rousseau 1997b, 85). Rousseau has therefore established a difference that is not a real difference: the people must divide itself into the universality of the will and the particularity of its determinations, but this division is at the same time acknowledged as illusory and negated. In a way, this is an important acquisition. As Hegel underscores, the rational concept of the state can be found for the first time in Rousseau, precisely because it emerges as the will’s capability of returning into itself from its being different from itself, that is, as freedom: ‘The principle of freedom emerged in Rousseau, and gave to man, who apprehends himself as infinite, this infinite strength’ (Hegel 1955b, 402). The Social Contract, in other words, embraces the modern citizens’ sacrosanct demand to freely determine their own destiny as a community of equals and to rationally recognize the law without submitting to any alien will.

But ‘freedom only has depth when it is developed into its differences and has attained to the existence of these differences’ (Hegel 2010, §541 R.), and the Genevan is unable to adequately handle such a development. Since he does not really tolerate the necessary moment of differentiation, in which he sees only a loss of freedom, he does not contemplate any possible coexistence of sameness and difference and limits himself to expelling what he perceives as an incongruity by reasserting the people’s immediate identity with itself. Now, we know that this kind of identity can only take the form of a sum of undifferentiated wills, as it is established through the unanimous constituent act. At the same time, however, citizens cannot live perpetually in such a condition of reciprocal indifference because it would imply a general will whose object is yet another general will and so on ad infinitum without ever particularizing itself: this is why democracy is impossible for Rousseau, at least if we take it in the literal sense that the whole people should not only legislate but also govern. The impossibility of democracy proves indeed that the difference between citizens and rulers is ineliminable. The Lawgiver, as we saw, provides the basic paradigm of this structure. But, as long as Rousseau considers this as a false difference and tries to remove it through the formalistic identification between the people and the executive, that is, through authorization, his Republic is threatened by a contradiction: this difference reemerges as an alien force that resists any reduction to the initially postulated unity and actually turns the state into the contrary of unity, that is, into pure division. The will and its determination, universality and particularity, sovereignty and execution, the people and the government end up being opposite realities that absolutely exclude each other precisely when they are said to be absolutely identical: in Rousseau’s word, ‘The instant the People is legitimately assembled as a Sovereign body, all jurisdiction of the Government ceases, the executive power is suspended,…because where the Represented is, there no longer is a Representative’ (Rousseau 1997b, 112). Conversely, this means that when the government is operative, no people can really exist outside of it: the government is the people and the popular will is entirely expressed by the governing action without the citizens’ involvement being necessary.

The executive power is therefore representative in a perfectly Hobbesian sense and, far from eliminating the difference between citizens and rulers, Rousseau has in fact turned it into an outright separation: the universal will of the people can only present itself as a particular will vis-à-vis the subjects, that is, as the particular determinations of a governmental decision that has been legitimized in advance. This makes the executive power no less irresistible than Hobbes’s sovereign (see Steinberger 2008). Interestingly, Rousseau himself admits that in his Republic, there is no room for any institutionally regulated way of resisting the government: ‘the government makes a constant effort against sovereignty…, and since there is here no other corporate will to resist the will of the Prince and so to balance it, it must sooner or later come to pass that the Prince ends up oppressing the Sovereign’ (Rousseau 1997b, 106). This follows from the premises, for when the Prince commands, it is as though the whole people did and there can be no other political will besides this. Resisting would contradict the original ‘identical will’ that has made it possible to authorize the majority and the government, for it would entail saying that the general will is different from the general will. Again, the fact that citizens can be forced to be free means simply that they can be obliged to comply with such a foundational unanimity, which is the only way Rousseau manages to understand freedom. He is thus doomed to fall into the trap he wanted to avoid: in principle, he argues, ‘The Sovereign may well say, I currently will what a given man wills or at least what he says he wills; but it cannot say: what this man is going to will tomorrow, I too shall will it; since it is absurd for the will to shackle itself for the future’ (Rousseau 1997a, 57). But what happens in reality is the exact opposite: Rousseau’s affirmation of the citizens’ free will demands the simultaneous affirmation of a further free will (the government’s) that stands in opposition to it. The actuality of the concept of popular freedom is thus governmental arbitrariness, that is, the ruler’s unconditional entitlement to freely determine the particular contents of the general will. For Hegel, as Patten observes, this means that ‘Far from being the only account of political legitimacy which takes seriously the value of individual freedom, contractarianism risks undermining the very attitudes and capacities that make up free agency’ (Patten 2001, 173).

Now, it might be objected that citizens can resist and control the government through frequent assemblies and ‘popular right of remonstrance’ (Cohen 2010, 173), but this argument is weak in both a conceptual and a constitutional sense. From a strictly constitutional point of view, we already know that when citizens are assembled, the government is dismissed. Since the citizen–ruler difference is negated, indeed, there can never be a situation in which the people and the government face each other to discuss determinate matters: being one and the same thing considered from two different angles, each must disappear whenever the other comes to the fore. Citizens can thus only elect or change the government through the vote of majorities, but not interact with it in a properly political sense: when the government is in charge, there are only separate individuals in front of the governing body, not a politically constituted people. In Hegel’s words, ‘what stands opposed to the government as the actual universal will is only the non-actual pure will, the intention’ (Hegel 2018, 320) because the government faces only a depoliticized mass of individual opinions.

From a conceptual point of view, postulating that the assembly enables popular control on the government implies postulating that it suffices for citizens to gather to be a people. Put differently, it means pretending once again that the general will is immanent in the will of all, as though ‘the act by which a people is a people’ (Rousseau 1997b, 49) lied in the very moment of their empirical association without any form of governance whatsoever being required for such an act to take place. We saw earlier that this hypothesis is untenable, for citizens need to be oriented by a Lawgiver for the general will to emerge, but in the executive power, we find the highest expression of this ambiguity: not only the Lawgiver can never really leave the Republic, but his function is necessarily taken on by the government. A dominant idea of the good polity must shape the general will through the formation of a majority if the advocates of this idea want to be elected as the legitimate executors of the very same popular will which they have in fact brought into existence. ¹² This means that the government in charge has basically carte blanche. Of course, a new majority in the assembly can discharge the government and elect a new one, but this requires a new ideological narrative to form such a majority through a successful action of persuasion in order for its partisans to be enthroned as the new executive manifestation of the people’s will. In other words, today’s Prince is always yesterday’s Lawgiver, because the citizens’ wills must be directed and shaped by an individual or a group of individuals who are to be subsequently elected in the government: there is no such thing as an autonomous will of the people that faces the government, for a governmental action must already be in place as a condition for the institution of the executive power. ¹³ In the concept of executive power, we can thus appreciate the full reality of the ‘paradox of democracy’, which consists essentially in the majority-Lawgiver circularity.

This mechanism becomes clearer if we consider again that Rousseau’s Lawgiver does the same thing that parties do today. The party or coalition of parties that gets to be legitimized by popular majorities are empowered to shape and execute the general will at the same time (although they are private associations, indeed, parties are not ‘parts’ because they cannot enforce partial views but can only be authorized to articulate a general view). As Grimm puts it, rulers ‘shift the state decision-making process to the party level and then assert it through their representatives in the bodies of the state. Political parties thus have exercised their influence before the constitutional separation of powers can take effect’ (Grimm 2016, 249–50). Any real separation between the legislative and the executive is impossible in this context, but in a very different manner than Rousseau could anticipate. Whereas he merely intended to subordinate the government’s prerogatives to the citizens’ control, the logic he implements favours in fact the autonomy of a governing class that separates itself from civil society and becomes the true manager of the political will: ‘while will masquerades as a property of the sovereign realm, government assumes responsibility for its actual formation and maintenance’ (Johnson 1999, 87). Even the formation of new majorities in the popular opinion, which we may be tempted to regard as dissent against current rulers, is in fact possible only if there is a permanent political personnel whose diverse groups oscillate between being Lawgivers and executors.

As Hegel puts it, then, the idea of realizing the universal interest through the authorization of the government ‘achieves the opposite of its intended purpose, and the election comes under the control of a few people, of a faction [Partei], and hence of that particular and contingent interest which it was specifically designed to neutralize’ (Hegel 2014, §311 R.). Within such a framework, the paradox becomes even more transparent. The government is the only possible manifestation of universality but also its negation because it is haunted by partiality: it is

the kind of government which is a determinate will and which is opposed as a result to the universal will. It therefore cannot present itself as anything other than a faction. It is only the victorious faction which is called the government, and exactly because it is a faction, there is the immediate necessity of its overthrow. (Hegel 2018, 320)

6. From paradox to dialectical contradiction

The ‘paradox of democracy’ is not just a ‘paradox of political founding’ (Connolly 2004, 138), for it incessantly recurs in Rousseau’s Republic. We saw how the Genevan strives to get rid of it by portraying it as a simple matter of chronological order: before and after the Lawgiver. In theological–political terms, we may say that while at the moment of foundation ‘It would require gods to give men laws’ (Rousseau 1997b, 69), once the Lawgiver has gone the people alone is supposed to be ‘the voice of God on earth’ (Rousseau 1997a, 8; 2005, 185). All along his political theory, his effort is to whittle the transcendence introduced by the Lawgiver down to the immanence of popular deliberation, whose procedures are entrusted to the majority and must be preserved by the executive. This effort proves however unsuccessful, for not only the government’s action is irreducible to mere execution but it also gets to be absolute in virtue of the absoluteness of the popular will which it should apply but in fact brings into being (see Steinberger 2008).

Bertram has accurately highlighted that there are two conflicting accounts of the general will in Rousseau, for it is described both as the result of the citizens’ democratic deliberation and as ‘a transcendent fact…that is quite independent of any opinion they might happen to have on the subject’ (Bertram 2012, 406). Although he acknowledges that ‘the democratic and the transcendent conceptions of the general will…fit together’ (Bertram 2012, 410), however, Bertram does not sufficiently explain how. We now better see that this apparent alternative is in fact an unresolved opposition whereby the immanent moment of unanimity dialectically requires the transcendent moment of representation. ¹⁴ This opposition is structural, as the majority-Lawgiver circularity shows. When the political will is assumed to be immanent in the citizens’ opinions, indeed, it is necessary to transcend them if we want to objectify such a will as theirs; when we take it to be a transcendent standard, instead, we need an immanent principle of determination if we want to make its popular recognition possible. We may refer to these two sides, respectively, as government and consent. Rousseau refuses however to think of their actual relationship and simply limits himself to turning them into the mirror of one another. As a result, he triggers an infinite goal kick, which Hegel would call ‘bad infinity’: positing the inalienable will of citizens (the universal contract) demands a moment of governance that is alien to it (the Lawgiver); this urges Rousseau to go back to popular immanence by subordinating the Lawgiver to democratic deliberation (the legislative power); the only way to determine the legislative’s will is however to establish a further transcendent paradigm (the majority), which again must be grounded upon an immanent act of authorization (the universal suffrage); authorization ultimately reproduces transcendence because it puts the articulation of the universal will in the hands of a separate governing faction (the Lawgiver/executive power) that is ceaselessly obliged to stage a universal constituent moment (elections) even though its decisions are in fact indifferent as to the citizens’ consent.

It is therefore incorrect to say that Rousseau ‘presses us to begin the work of democratic politics in medias res’ (Honig 2007, 2) and helps us to avoid ‘binary paradoxes that shuttle us back and forth between decision and deliberation’ (Honig 2007, 14). Instead, what he does is exactly bouncing us back and forth between opposite moments which he cannot reconcile. His attitude is the false dialectic of which Hegel speaks in his lectures on Plato, whereby the intellect tries to get out of trouble by distinguishing between different points of views that remain nonetheless reciprocally indifferent and thus interchangeable:

As in each thing we demonstrate unity, so do we also show its multiplicity.…It must thereby be said that something is one in quite another respect from that in which it is many. We thus do not here bring these thoughts together, for the conception and the words merely go backwards and forwards from the one to the other; if this passing to and fro is performed with consciousness, it is the empty dialectic which does not really unite the opposites. (Hegel 1955a, 64)

Now, this contradictory movement, that is, the fact that the universal will appears to be both immanent and transcendent without being either, points us towards the very configuration of the concept of the state. The ‘paradox of democracy’ is indeed not a logical mistake, but an essential theoretical structure, and it is precisely because he sees it only as a mistake that Rousseau falls prey to a vicious circle where the multitude and the people ceaselessly negate each other. To conclude, I would like to briefly outline how Hegel escapes this infinite oscillation by positively assuming the paradox that Rousseau rebuffs as a dialectical contradiction.

7. Conclusion

Although it is not possible to go into detail, it is useful to address some of the key points of Hegel’s philosophy of right that relate to the issues I have discussed. Hegel acknowledges indeed the impossibility of unilaterally theorizing either the identity or the non-identity between the particularity of citizens and the universality of public rule: his analysis of the contractual rationale, as we saw in section 2, shows that both sides necessarily coexist in the social contract even though it remains trapped in their unresolved conflict (in Rousseau, for instance, the attempt to stick to the undivided oneness of the people engenders the twoness of the individual–government opposition). Put differently, multiplicity and unity cannot be kept separate, for it is not possible to posit one without the other, but this does not mean that they are the same thing. We therefore need a new concept that dialectically incorporates this contradiction and ceases to regard it as a simple impasse: this concept – which in the Hegelian terminology can be said to be the Aufhebung of the social contract, not merely its destitution – is what Hegel calls ‘sovereignty’. We can however understand it only if we disentangle this word from its ordinary contractarian definition. ¹⁵ As a matter of fact, sovereignty for Hegel can only be predicated of the constitution, not of a subject (be it individual or collective), and results from a process of mediation between the unity of decision-making and the diversity of the citizens’ interests and opinions. We may call this process ‘the absolute unity of the one and the many’, as Hegel defines it in his 1802 essay on natural law, or ‘the identity of identity and non-identity’. The state must tolerate within itself the contradiction of being one and many, for it is capable of differentiating itself and becoming other than itself while remaining identical to itself. Sovereignty is thus the reality of the concept of freedom as self-sufficiency and self-determination.

To articulate this concept, a constitutional arrangement is required that is quite different from the Rousseauan one. In the first place, the two moments of multiplicity and unity, which cannot be declared in advance to be identical, must be established as distinct finite determinations, namely the popular assembly (Ständeversammlung) and the government (Regierungsgewalt) within the legislative power (gesetzgebende Gewalt). Whereas for Rousseau ‘the legislative exists for itself as the absolutely supreme power’, Hegel acknowledges ‘That the functions of the universal interests of the state should be, in their necessary distinctness, also organized separately from each other – this division is the one absolute moment of depth and actuality of freedom’ (Hegel 2010, §541 R.). The function of the assembly is ‘to bring into existence…the public consciousness as the empirical universality of the views and thoughts of the many’ (Hegel 2014, §301), such that, ‘Viewed as a mediating organ, the Estates stand between the government at large on the one hand and the people in their division into particular spheres and individuals on the other’ (Hegel 2014, §302). The government, instead, has ‘The task of upholding, within these particular rights, legality and the universal interest of the state, and that of bringing these rights back to the universal’ (Hegel 2014, §289). The roles of these organs are thus irreducible to those described in the Social Contract. Firstly, because the assembly expresses only the particular, not the universal, which is promoted by the governing body. Secondly, because, far from saying that the government is the executive emanation of the popular assembly, only their actual separation enables them to face each other and work together. Thirdly, because the government is not a representative power, as it does not include or shape the general will of the many and its legitimacy does not proceed from any act of authorization on the part of either the assembly or the single individuals.

This way of understanding deliberation has direct consequences on the very category of representation. We saw how the difficulties in which Rousseau’s social contract stumbles are essentially related to a logic of representativity, whose first formulation is Hobbesian, that paradoxically causes the legitimate political will to be alien to its authors insofar as it presumes to bring their totality to presence. For Hegel, instead, it is only possible to represent the particular within the whole, not the whole itself, exactly because otherwise its determination ought to be contradictorily articulated by a particular individual or group. This means also that representatives represent someone before someone else, that is, they represent citizens before the members of the government and the Prince: they are the people’s delegates in the proper sense – a function which the social contract renders pointless – as they are entrusted with definite responsibilities related to particular spheres and interests and not with pure generality. Representation and decision-making are consequently two constitutionally different processes, for the assembly presents a plurality of partial views and is in no way entitled to enunciate the general will in the form of laws. Accordingly, representation is performed through a series of mediating bodies, namely the estate of landowners associated in the first chamber and the corporate organizations of civil society reunited in the second chamber. Only these communities enter the popular assembly, not the indeterminate will of the whole people in general:

This runs counter to another prevalent idea according to which, if the private estate is raised to the level of participating in the universal interest via the legislative power, it must appear therein in the form of individuals, whether representatives are elected to fulfil this function or whether every individual is in fact to have a vote himself.…The state is essentially an organization whose members constitute circles in their own right, and no moment within it should appear as an unorganized crowd. (Hegel 2014, §303 R.)

Whereas the social contract makes the citizens’ participation in the determination of the common good inessential and in fact impossible because it ‘involves separating civil and political life from each other and leaves political life hanging, so to speak, in the air’ (Hegel 2014, §303 R.), such a mediation between the particular and the universal is the deliberative context in which society’s plural spheres effectively take part in the common interest as long as they constantly recognize themselves as different moments of the constitutional life: ‘By virtue of this participation, subjective freedom and fancy and their universal opinion show themselves in an existent effectiveness and enjoy the satisfaction of counting for something’ (Hegel 2010, §544). In this sense, popular consent does not merely consist in a formal act of authorization for the future but is actively brought into play in the singularity of decision-making through determinate practices of collective agreement. If this is the case, only such an interaction between the assembly and the government can be said to be the real governance of the polity, which cannot be univocally attributed to the sole governmental power or Regierungsgewalt. The fact that the function of government bears the viewpoint of universality, indeed, does not imply that it is self-subsistent: quite on the contrary, its activity would be abstract and despotic if it neglected the never-ending task of engaging with the assembly because it is only in this manner that it truly attains universality as much as the particularity of the Estates is truly such only within this same work of mediation. This is why in his 1830 Encyclopaedia, Hegel no longer refers to the process of deliberation that involves the Estates, the governmental power and the Prince as ‘legislative power’ but simply as ‘government’ (Regierung).

In light of these points, I argue, Hegel provides the conditions for truly articulating the law as the free will of the people, which in Rousseau remains just an aspiration undermined by inner oppositions: as a matter of fact, he remarks, ‘it was the achievement of Rousseau to put forward the will as the principle of the state, a principle which has thought not only as its form…but also as its content, and which is in fact thinking itself’ (Hegel 2014, §258 R.); his hypostatization of the individual will brought him nonetheless to understand the universal will only as external generality. The philosophy of right must instead conceive the people as the perpetual movement of its self-differentiation and self-recognition. Only in this sense is the state sovereign, as ‘sovereignty is the ideality of every particular authority’ (Hegel 2014, §278 R.):

The basic determination of the political state is the substantial unity or ideality of its moments.…In this unity, the particular powers and functions of the state are both dissolved and preserved. But they are preserved…only in such a way and to such an extent as is determined by the Idea of the whole;…they are its fluid members, just as it is their simple self. (Hegel 2014, §276 R.)

As much counterintuitive as this may sound, then, the Hegelian Prince does precisely what Rousseau wanted his Prince to do but could not adequately think: he does the will of the people, in the sense that his decisions subjectively take charge of something that has already been objectively decided in the government’s deliberative process and, at the same time, brings the citizens’ abstract differentiation into particular standpoints back to the concrete unity of a self-conscious act of the will. This means also that, should the Prince refuse to abide by the deliberative activity that guarantees the incessant reproduction of the people’s normative principles, it is the very constitutional framework that resists such an arbitrariness and makes it ineffective because ‘by constitution we must understand the determination of rights, i.e. of freedoms in general and the organization of their actualization’ (Hegel 2010, §539): there is no multitude before the Prince, but a people organized in self-regulating communities that reflect directly on the legislative procedures and are actually able to orient them. Political participation is thus effectively ensured on the basis of concrete ethical spheres and not merely associated with individual opinions.

It is quite evident that the Hegelian constitutional proposal can be no model for us. Our democracies are indeed unquestionably bound to face challenges that Hegel cannot address – from global governance to the current transformations of labour, from the struggles related to gender and racial equality to the climate crisis and so forth. The Hegelian response to Rousseau’s deliberative model of democracy can however offer us valuable theoretical categories to dig deeper into the question of difference and plurality, which is, more vital than ever today when it comes to democratic participation.