The key notion in the passage is the “social spirit.” Basically, it indicates a sort of civic ethos, or a shared orientation toward the common good. For Rousseau, such an orientation is essential to the functioning of a self-legislating political community, in which law arises from the general will of the people. The formation and exercise of the general will, in turn, are based upon the capacity of citizens to take a broader standpoint than the counsels of self-interest. Instead of sticking to the narrow perspective of their particular interests, citizens must be able to place the common good at the center of their political considerations. Notice that this capacity has both a cognitive and a motivational side. That is to say, citizens must both see the common good and actively will it. According to Rousseau, the right kind of ethos, the “social spirit,” is of crucial significance precisely because it brings together these two aspects—insight and volition, reason and will—thereby providing the citizens with an embedded understanding of the common good. Penetrating deep into their dispositions, habits, and emotions, such an embedded understanding of the common good is the lifeblood of a self-legislating political community.
This is where the paradox of democratic founding comes in. If a “nascent people” are to organize themselves into a self-legislating political community, the social spirit must have been somehow operational beforehand. For the people to make the right kind of laws, expressive of the general will, the right kind of ethos must be already in place. And yet, Rousseau observes, an ethos of this sort would only flourish in an already existing and functioning republican society. It is by virtue of good laws that citizens are educated to take a principled standpoint and habituated to attach themselves to the common good, while at the same time learning how to confine and accommodate their private interests within its boundaries. This leads to the question of whether the people can carry out the first—in fact, the most important—act of self-legislation, namely, the making of the republican constitution, if the kind of ethical dispositions required to perform this act are to develop under republican laws and institutions. It seems that for the people to underwrite their own constitution, as Rousseau puts it, “the effect would have to become the cause,” and the morals to be shaped by the constitution would have to precede its making.
According to Rousseau, there is but one escape from the paradox of founding. Only the formative and educative efforts of a “great lawgiver” can save the people from the vicious circle of democratic will-formation: “How will a blind multitude, which often does not know what it wills because it rarely knows what is good for it, carry out an undertaking as great, as difficult as a system of legislation? By itself the people always wills the good, but by itself it does not always see it…. Hence arises the necessity of a Lawgiver.”2 Acting as a political educator and attending to the morals of the people, the lawgiver sows the seeds of civic virtue and sets in motion a moral transformation so that citizens would in the future become capable of exercising the general will on their own.3
No doubt, Rousseau’s recourse to an enigmatic lawgiver in the midst of a theoretical inquiry aiming to map out the normative grounds of a self-legislating political community has sparked much debate and criticism. For some, the lawgiver indicates a democratic deficit in his thought. In this view, “Rousseau could not conceive of a self-fashioning people and so he invents, literally, a deus ex machina,” a somewhat implausible conceptual device, designed to bridge the gap between will and reason, consent and wisdom, democratic legitimacy and the common good.4 According to another line of interpretation, Rousseau’s appeal to the lawgiver models how the achievement of democratic autonomy is contingent on a heteronomous intervention at a fundamental conceptual level, inviting us thereby to reflect on the limits of normative ideals and their problematic construction.5 We will look at some of these interpretations more closely in due course, especially in discussing the contemporary restatements of the paradox of founding below.
In “What Is the Third Estate?” Sieyès encounters the paradox of founding from a different angle. Unlike Rousseau’s formulation, this version of the paradox turns on the institutional and procedural presuppositions of democratic will-formation rather than its ethico-cultural conditions. The central question that frames Sieyès’s argument is the following: “what should be understood by the political constitution of a society and how to identify its just relationship to the nation itself?”6 In response, he writes:
It is impossible to create a body for an end without giving it the organization, forms and laws it needs in order to fulfil the functions for which it has been established. This is what is meant by the constitution of that body. It is obvious that it could not exist without one…. Thus the body of representatives entrusted with the legislative power, or the exercise of the common will, exists only by way of the mode of being which the nation decided to give it. It is nothing without its constitutive forms; it acts, proceeds, or commands only by way of those forms.7
Notice that in defining the constitution this way, Sieyès puts the emphasis on its enabling rather than restraining functions. Even though constitutional laws do and must bring certain limits on the exercise of power, they always do so by establishing the institutional and procedural forms in and through which the exercise of power becomes possible in the first place. In this respect, to borrow John Searle’s distinction, constitutional laws function not only or even primarily like “regulative rules,” which govern practices that exist regardless of the rule (e.g., parking is prohibited), but also, and more important, like “constitutive rules,” which make a certain kind of practice possible in the first place (e.g., the queen can move in all directions).8
Having thus clarified “what should be understood by the political constitution of a society,” Sieyès then turns to the second half of the question: “how to identify its just relationship to the nation itself?”9 In response to this question, he introduces the well-known distinction between “constituent” and “constituted” powers. The power of the government—or the power to rule in accordance with and as prescribed by the law—is a constituted power in that it is subject to the fixed forms articulated in the constitution. However, the power to articulate these forms, namely, the power to make the constitution itself, is by definition of a different order. “In each of its parts a constitution is not the work of a constituted power but a constituent power.”10 This power belongs only and exclusively to the people, who can use it at will and give the constitution whatever form it wants. “It would be ridiculous,” Sieyès argues emphatically, “to suppose that the nation itself was bound by the formalities or the constitution to which it had subjected its mandatories.”11 In its capacity as the constituent power, thus, the people is claimed to be beyond and above all institutional forms.
The paradox of democratic will-formation asserts itself precisely here. On the one hand, Sieyès has a point. If the people are to be taken as the locus of constituent power and the ultimate source of legitimacy on which the constitution rests, then their will must in some sense precede and underpin the constitution. On the other hand, as Sieyès acknowledges in his own definition of the constitution, a collective body can hardly act in a purposive way without the “internal forms” or the “constitutive rules” that enable it to do so. This makes it hard to understand how the people can exercise their constituent power. “There is no reason to be afraid of repeating the fact that a nation is independent of all forms,” Sieyès wants to reassure his readers, “however it may will, it is enough for its will to be made known.”12 But this is not a solution to the problem; if anything, this is a restatement of the problem. After all, how is it possible for the people to form and express their will outside all procedural and institutional forms, the establishment of which is of course the task of the constitution itself?
Sieyès seems to think that the solution resides in the concept and practice of representation. “Since a great nation cannot in real terms assemble every time that extraordinary circumstances may require,” he says, “it has, on such occasions, to entrust the necessary powers to extraordinary representatives.”13 But notice that the problem at hand does not primarily
