2.5 Rousseau: Communitarianism

Hobbes and Locke in their different ways were concerned to justify

particular forms of government for the purpose of protecting individ-

ual liberty. However, neither dealt in detail with the problem of how

to reconcile the interests of the community with those of individuals.

Jean Jacques Rousseau (1712–1778), in his personal life a pathological

loner, attempted to do this by claiming that social co-operation was

the highest form of individual happiness. Like Locke, Rousseau

believed that man was by nature good, but thought that people had

been corrupted by a society dominated by vested interests (‘man is

born free but everywhere he is in chains’). Rousseau believed that

individuals had natural rights but argued that, because we are social

animals, there is no conflict between the needs of the individual prop-

erly understood and the interests of the community provided that we

participate in government on equal terms. Thus Rousseau attempted

to square the circle by claiming that ‘true’ freedom lies in obeying a

democratic state. Rousseau was therefore a founder of the commu-

nitarian thought that underlies modern collectivist visions of the good

society. His thinking particularly influenced the French Revolution

with its slogan of ‘liberty, equality and fraternity’ but had only limited

influence in Britain. It is important to remember however that political

and philosophical ideals such as those proposed by Hobbes, Locke

and Rousseau had resonances and implications for their times which

30 General Principles of Constitutional and Administrative Law

may be lost to us. For example, in pre-revolutionary France, unlike

England, the monarchy and the rights-bearing landowners were in

alliance. Lockeian thinking was therefore unhelpful to the French

revolutionaries who needed a philosophy that gave power to people

without property rights. In the American revolution by contrast Lock-

ean property rights were asserted as a philosophical justification.

Rousseau presented a social contract under which the people give up

their selfish, irrational, individual wills in favour of contributing to

what he called the general will. The general will is our ‘higher’ altruistic

or more rational will. It is what an assembly of equals ought to decide.

This must be distinguished from what Rousseau called the ‘will of all’,

namely the views of a numerical majority of people each voting for his

or her own self-interest. The general will should ideally be expressed by

a vote of the whole community but in practice the lawmaker is likely to

consist of elected representatives. However, contrary to the traditional

approach taken in English law, Rousseau’s representatives are bound

by the views of those who have elected them.

When we vote for the general will we are voting unselfishly for what

we now call the ‘public interest’. Rousseau asserted that when we con-

form to the general will we are ‘free’ in a higher sense, in that our

thinking is not distorted by selfishness nor slave to our animal instincts

nor dominated by the vested interests of others. Rousseau spoke of

being ‘forced to be free’ just as bossy persons talk about what is in our

own ‘best interests’ did we but know ourselves. Rousseau said that the

general will could never be wrong but was apparently thinking of

the general will as an ideal rather than of any application of it in the real

world. Some modern lawyers such as Lord Devlin have put forward

similar views to those of Rousseau when they argue that the community

is held together by a shared morality which the law is entitled to enforce.

Even if the people can make laws collectively they cannot enforce

them directly by mob rule but must devolve power to some form of

executive government. Rousseau therefore vested day-to-day govern-

ment in a body of experts preferably chosen by the people. The job of

government was to propose laws to the people and to make decisions in

individual cases within the laws given to it by the people. In modern

conditions, however, the distinction between lawmaking and executive

government is less clear-cut. The executive has to make general rules in

order to carry out the complex tasks required of it, and the lawmaker,

which is usually an elected assembly, has neither the time nor the

knowledge to make all the laws required.

Rousseau therefore introduced the modern notion of the collec-

tive state. Rousseau’s constitution favours the collective good of the

31

Constitutional Values

majority against individual liberty and minority groups. The issues

that he raises are fundamental, in particular whether there is such

thing as the ‘public interest’ as opposed to an irreconcilable mixture

of gains and losses to individuals. Rousseau is important to modern

constitutional law partly because he shows how difficult it is to

produce democratic government in which all participate without large

sacrifices of individual liberty. For example he favoured state censor-

ship and rejected ‘mini-general wills’ such as trade unions within the

state and would restrict the freedom of expression and association

in order to promote the ‘right’ way of thinking on which the general

will depends. He also favoured compulsory state education and a state

religion. He thought that people must be roughly equal in terms of

wealth in order for the general will to operate effectively.

Rousseau assumes that the public are united by strongly held shared

values and will vote altruistically whereas decisions made by an elite or

by ‘experts’ are more likely to be corrupt and self-seeking. The

German philosopher Hegel (1770–1831) also supported a collectivist

view of the state but did not favour democracy. According to Hegel

the state is the highest creation of reason through which we can

reconcile our selfish impulses as individuals with the influences that

necessarily constrain us as members of communities such as families,

ethnic and social groups etc. The value of a person can therefore be

realised only by immersion in the state. Hegel favoured the Hobbesian

idea of an independent ruler such as the militaristic monarchy of his

native Prussia who, having in Hegel’s view no axe to grind, can be

relied upon to rule rationally. However, Hegel did not favour the kind

of totalitarian regime such as fascism that is the logical extension of

the collectivist tradition but recommended safeguards against abuse

of power such as independent courts and human rights.

Some variants of communitarianism (multi-layered communitarian-

ism) do not support the notion of a single general will embodied in

the state but favour decentralised government with power dispersed

between different ethnic, economic, social and geographical groups.

They emphasise the desirability of the constitution providing for the

active participation of citizens, both individuals and groups, in the

governmental process and reject liberalism as merely tolerating rather

than embracing diversity (see Gray, 1993; MacIntyre, 1968; Morison,

1995). This variant of the communitarian idea recognises the inherent

conflict between incommensurables and seeks a practical modus vivendi.

However, multi-layered communitarianism does not explain how, in a

complex society, disagreements can be resolved. Rousseau’s general

will would brook no rival to the state and would therefore suppress

32 General Principles of Constitutional and Administrative Law

smaller groups that might create mini-general wills at odds with the

community as a whole. In Hobbesian terms these rival groups would be

analogous to individuals at war with each other in a state of nature.

2.6 Hume: A Common Law Approach

David Hume (1711–1776) provides a more flexible and open-ended

communitarian approach for which the common law provides a

vehicle. He thought that government is a matter of practical compro-

mise driven by our psychological need to co-operate with each other

and built on custom and greed for material possessions. Law is a tool

of government, and ideas such as justice and appeals to ‘the ancient

constitution’ are imaginative myths useful for persuading people to

obey the law, just as are the courtroom panoplies of robes and

honorific titles, a theme which was later taken up by Walter Bagehot in

the particular context of the British Constitution. Hume said ‘since ‘tis

impossible to change or correct anything material in our nature, the

utmost we can do is to change our circumstances and situation and

render the observation of the laws of justice our nearest interest’

(Treatise of Human Nature, p. 537).

Hume therefore advocated a pragmatic society based on co-

ordinating individual interests with those of the community but with-

out the mystical overtones of Rousseau or the authoritarian aspects of

Hobbes. Hume’s approach therefore favoured the common law which

he described as a happy combination of circumstances, according to

which the law is developed pragmatically by the courts in the light of

changing social practices and values. He relies on the common law

as harnessing the common sense reasoning and attitudes of the com-

munity in order to achieve the same objective as Hobbes, that of

resolving disagreement. Like Hobbes, Hume did not believe there are

objectively valid moral and political principles but thought that long

term self-interest and our natural imaginative concern for others

would lead us towards developing principles of co-operation such as

justice and fulfilling expectations.

2.7 Liberalism and Utilitarianism

Liberalism, is based on the idea that human beings are valuable as

equal beings and are responsible for deciding our own goals in life.

According to Lord Steyn, the basic premise of UK law is a liberal one.

33

Constitutional Values

‘Parliament does not legislate in a vacuum. Parliament legislates for

a European liberal democracy founded on the principles and tradi-

tions of the common law. And the courts approach legislation on this

initial assumption’ (R. v. Secretary of State ex parte Pierson [1997] 3

All ER 577 at 603). However, his Lordship immediately went on to

recognise that this can be displaced by a ‘clear and specific provision

to the contrary’, thus recognising the supremacy of the ‘general will’ of

the majority expressed through Parliament. The starting point is all

important since it determines where the burden of proof lies. Do our

constitutional arrangements start with individual liberty and require

the government to justify its interference or do we assume the right of

the majority and have to make a special case for individual rights?

2.7.1 Liberal individualism

Lord Steyn seems to conflate two kinds of liberalism. In one, ‘liberal

individualism’, the individual is valued for his or her own sake and is

free to pursue a personal understanding of the good life provided that

this does not harm others (there are of course large questions here as

to what counts as harm which are outside the scope of the present

book). Thus Kant (1724–1804) argued that an individual must be

treated as an end in itself and not as a means to an end such as the

public welfare. The role of the law is to provide a framework of

procedures for resolving disputes but it is not for the state to impose

its vision of the good life on individuals. The state has a right and duty

to protect its members, and citizens arguably have a duty by virtue of

our dependence on others to co-operate with society’s reasonable

demands. Subject to those limits, liberalism would limit the freedom of

the individual as little as possible, and, as Allan (1999) argues, only to

achieve goods which are common to all.

Nozick (1974) goes further arguing that the fact that I am born into

a community does not give me any moral obligation to obey its

requirements since I have no choice but to accept its power and also

that doing good to others because I am forced to do so is morally

worthless. Nozick supports the idea of a minimal ‘night-watchman’

state which does only those things for which compulsion is essential

such as keeping order and enforcing contracts. According to Nozick

no one should be sacrificed for the benefit of others without their

consent. Any attempt by the state to force people to help each other,

for example by raising taxes for welfare services is, according to

Nozick, a violation of their rights and essentially slavery and theft.

34 General Principles of Constitutional and Administrative Law

Similarly taxation for the purpose of redistribution or providing public

services is a form of theft. Nozick concedes that the state can

legitimately tax for the purpose of its basic function of protection,

using the money so raised to pay for the protection of those who could

not afford to pay for themselves. He argues that taxation for this

limited purpose is not redistribution but a form of compensation,

whereby I am paying the state not only to protect me but as my agent

in order to compensate other people who have to give up some of their

freedom in the interests of my safety.

2.7.2 Liberal utilitarianism

The other version of liberalism, liberal utilitarianism, is a subjective

view of the good life no different in this respect from, say, Islam or

communism. Liberal utilitarianism is one of a group of utilitarian

theories. Utilitarianism claims that the goal of government is to

achieve ‘utility’. This means the greatest amount of general well-being

or ‘the greatest happiness of the greatest number’. Thus utilitarianism

attempts resolve all problems in terms of measurable units of human

welfare. There are several versions of utilitarianism which differ from

each other in respect of how to maximise welfare. They all seem to

share the assumption that the individual is valued not for his or her

own sake but as a vehicle for happiness.

One version of utilitarianism propounded by the great law reformer,

Jeremy Bentham (1748–1832), measures utility by people’s actual

demands and interests. It is egalitarian in that each interest counts

equally in the calculation and the preferences of the decision maker are