Youthfulness and Legislation: Rousseau on the Constituent Moment

Abstract

In Of the Social Contract, Rousseau argued that, for successful political founding, the social spirit that is the product of the institutions must precede over the institutions. Scholars have interpreted Rousseau’s constituent moment as an unsolvable paradox that haunts modern constitutional theory. This article seeks to challenge this view by taking seriously Rousseau’s claim that only a young nation can receive laws. By reconstructing youthfulness as a necessary pre-institutional condition for legislation, I argue that successful constituent moments can be identified within Rousseau’s works, attention to which shows that his position is not paradoxical. Youthfulness nonetheless hinges on a tension between the innocence of a community that shares a robust social bond, and the maturity evident in its dangerous desire for prosperity. Youthfulness is therefore a moment of crisis and opportunity that calls for legislation to resolve this tension. Rousseau illustrates two youthful moments – natural youth and restored youth – both in the general human history set out in the Discourse on Inequality and in his analysis of the particular cases of Corsica and Poland. By emphasizing youthfulness, this article calls for greater attention to Rousseau’s political sociology, which cannot be separated from his principles of political right.