Abstract

ABSTRACT Because Rousseau identifies popular sovereignty with the enactment of fundamental laws, he seems to conflate popular sovereignty with constituent power: the people are sovereign because they constitute the state, without actually ruling it. However, he assigns the lawgiver, or (‘legislator’) an antecedent task that has a more obviously ‘constituent’ character – the task of constituting the people itself, as a political subject and political unity. Thus Rousseau’s lawgiver offers a template for understanding the relationship between popular sovereignty and constituent power. Accordingly, I make three arguments concerning the ‘constituent’ role of the lawgiver. Firstly, I argue that Rousseau’s lawgiver belongs within a ‘realist’ tradition of constituent power, which understands the people not as the bearer of constituent power, but as its product. Secondly, since the lawgiver’s task is to alchemise peoplehood by bequeathing the people a ritual life, this helps us understand how constituent power remains ‘live’ within the social life of the republic. And thirdly, since the lawgiver effects a rupture in political time of which Rousseau judges the people itself incapable, its role is to compensate not only for the people’s incapacity to reason, but more importantly, its incapacity to act.