A careful examination of the idea of democracy suggests that democracy is not best understood as a form of government that is unconditionally responsive to the preferences of the majority. In particular, a will-based conception of democracy—which assigns effectively unlimited power to the majority—can claim support neither in the intellectual history of democracy nor in a plausible interpretation of the idea of democracy. The western democratic tradition is contractualist, and that tradition works from the foundational intuition that legitimate power derives from the consent of the governed. That intuition justifies majority rule as an important element of social choice, but it also requires the entrenchment of rights protections as an element of any acceptable set of political institutions. If entrenched rights are to provide effective protections to liberty interests, they must be enforced by an institution that is not subject to majority control; a “constraint” on the will of the majority that is controlled by the majority is no constraint. Democratic institutions must therefore include an institution independent of majority control whose purpose is to enforce rights protections against the majority.

The “democratic” character of the representative legislature is routinely contrasted with the undemocratic character of courts administered by unelected judges. Since the legislature allegedly possesses a democratic pedigree while the courts allegedly lack such a pedigree, it is argued that the courts should defer to the legislature on questions regarding fundamental social values. I argue that this view does not survive a careful examination of the history and character of representative government and the judiciary. Representative government was designed to assign decisive political power to elites whose qualities distinguish them from the average citizen. The legislature, therefore, hardly possesses an impeccable democratic pedigree. The democratic pedigree of courts exercising the power of judicial review, on the other hand, is stronger than has been generally appreciated. The democratic pedigree of the Constitution is superior to that of statutory law because the Constitution represents a more fundamental and direct expression of the public will than statutory law. The courts, in exercising the power of judicial review to enforce constitutional requirements, can therefore plausibly claim a democratic pedigree—within their areas of competence—at least equal to that of the legislature.

Abstract: This chapter engages closely with the key state of nature passages in Hobbes’s Leviathan, Locke’s Second Treatise of Government and Rousseau’s Discourse on Inequality. It shows how each text constructs strikingly distinct imaginaries of the state of nature, and begins to explore some of the real-world implications of these imaginaries.

Rousseau casts the social contract both as a genealogical account of how governments arise and a prescriptive account of how they ought to be made. He can also be read as casting the social contract in a critical role: showing how society would organize itself in certain counterfactual circumstances. A merely hypothetical contract can serve the critical role of reconciling us to our actual circumstances while at the same time specifying what reforms are demanded. Rousseau’s social contract creates a general will, volonté générale, which is not an aggregation of separate wills, nor is it simply the immersion of several selves into a “hive mind.” It is what each wills, even those who disagree with the majority, which announces what the general will wills. Especially interesting is the act by which the general will arises: Citizens abstract from their own selves and situations and surrender all their rights to the political community. And “since each gives himself entirely, the condition is equal for all, and [thus] no one has any interest in making it burdensome to the rest.” Rousseau’s social contract requires there be a civil religion intolerant of those who believe their own faith to be the unique way to salvation.

Rousseau took up the challenge of explaining the origin of social inequality. Primitive humans lived simply and independently. Their natural amour de soi – self-love – was tempered by natural pity. As families connected into tribes, and nomads settled into stationary dwellings, a new sentiment arose: amour propre, or self-esteem. People began to compare themselves to one another and to seek attention. Natural pity was eclipsed by the urge to be admired and to dominate. The introduction of agriculture brought with it private property and competitive accumulation. Human society magnified modest natural inequalities, and immiserated itself in the process. Rousseau’s thought showed a sunnier side in his Du Contrat Sociale: the social contract. He professed not to know how humanity had come to be “everywhere” in chains, but proceeded to show how that condition was legitimate. The device was the social contract, to which individuals bring their possessions in order to secure them as property.

The state of nature in social contract theories tells us two stories, one about who the main political actors are, and another one about the supra-juridical normativity and principles those actors use to judge and act politically once they are in the civil state. In my chapter I focus on the latter matter by contrasting Kant’s approach to the state of nature and its role in his social contract theory as given in the Feyerabend lectures with the conceptions of the state of nature in Hobbes, Locke, Achenwall, and Rousseau. Following the thesis that pre-juridical normativity functions as supra-juridical normativity once in the state, my main question is: how is "natural", in the sense of "pre-political", normativity generated? With this I am referring not only to the source of normativity, but mainly to how pretensions of normativity arise when people interact in the state of nature, and if these are or are not regulated by a moral-legal order independent from that interaction.

The Feyerabend lectures on natural right is Kant’s first clear statement of a view on punishment that balances retributivist and deterrence concerns. Kant’s earlier views, shown by other course lectures on ethics, were largely focused on deterrence. As Kant developed his view of human autonomy, he shifted his reasoning about punishment to include concern for the honor and dignity of the victim as well as the criminal, including right of criminals to be treated no worse than they treated others.

Even though Shelley’s time in Switzerland in 1814 and 1816 adds up to just four months, during which he wrote surprisingly little, the alpine nation played an outsized role in his cultural canonisation. This article bases itself on a variety of published and manuscript texts by members of the Shelley circle and their contemporaries in order to review both tours, arguing that the poet was eager to find in Switzerland the living signs of a republican paradise and to view that country as romance rather than reality. The Alps provided the poet with powerful images of the natural sublime, which he associated with intellectual beauty and revolutionary necessity. On the other hand, despite his deepened appreciation of Swiss philosopher Jean-Jacques Rousseau, the poet remained far more sceptical of Switzerland’s mythic liberty and virtue.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

The chapter explores the concept of the individual as a democratic citizen who voluntarily exercises rights and authority, and can both legitimize and delegitimize the government. It suggests that Western secular cosmological dualism, which separates the world from man, has led to the development of the modern individual, capable of introspection, autonomy, and agency. This dualism creates a divide between the physical human body and the autonomous human mind and spirit. It has facilitated the simultaneous growth of natural sciences and humanities. The chapter examines how this secular imaginary, based on the separation of Nature and man since the seventeenth and eighteenth centuries, is reflected in the philosophical discourses of influential thinkers like Hobbes, Descartes, Locke, Rousseau, Hume, and Kant. They explored the potential of this separation to evolve human agency in politics and to derive universal rights from Nature to safeguard individual freedom in society and politics. This dual cosmology also led to the development of social sciences and varying views on voluntarism and natural determinism, as seen in Freud’s psychoanalytic theory. Finally, it shows how Nature has become a cultural resource through art.

In this chapter, Ezrahi analyzes the influence of philosophers like Hobbes, Spinoza, Locke, Vico, and Rousseau, as well as the Federalists, on the shift from a medieval monistic cosmology based on God to a modern dualistic cosmology, emphasizing dynamic Nature and human agency. These thinkers played a pivotal role in shaping a political order and obedience independent of divine authority, turning to Nature as the source of laws and a check on human actions. This transformation led to the emergence of new concepts, such as the state, freedom, and equality, despite their being imaginative. Hobbes pioneered the use of metaphors and empirical sciences in civic affairs. Spinoza adopted a detached scientific perspective, viewing human emotions and drives as natural phenomena. Locke presented empiricism and probability to inform political decisions through an understanding of human judgment. Vico proclaimed that political systems are based on collective political imagination, facilitating the construction of institutions and political processes rooted in commonsense. Rousseau further developed the dichotomy of Nature/Culture, highlighting its impact on politics, education, and ethics. The American Revolution marked the merging of objective Nature and human agency, giving rise to the idea of employing science to manipulate Nature.

Chapter 2 discusses the adaptations that Grouchy made to her initial draft of the Letters on Symapthy between 1786 and 1789. It explores her interest, during this period, in the affair of the trois roués, a court case that had captured the attention of her uncle Dupaty and Condorcet. This constituted her first sustained exposure to the political injustices of ancien régime. By engaging with the work of these two men, and the ideas of other eighteenth-century natural rights thinkers, Grouchy developed her own ideas as to how injustice could be combatted. This resulted in various additions to the Letters. Building on her original ideas about sympathy-based morality, she elaborated her own definition of natural rights. She went on to argue that these rights, and justice as a whole, could only exist in society when a minimal degree of social and economic equality was guaranteed by the state. This Chapter argues that this was the period when the Letters changed from a moral treatise to a text concerned with political theory.

Chapter 1 focuses on the first draft of Grouchy’s Lettres on Sympathy, the only text to be published under her name in her lifetime. In contrast to commonly received historical wisdom, it argues that Grouchy did not, in fact, begin writing this treatise between 1791 and 1793. Rather, it suggests that it was first composed around 1786, in response to an Académie française competition to produce the best elementary moral treatise on the duties of the man and the citizen. It goes on to reconstruct the contents of the original text. Her aim, in this first draft, was non-political: she wanted to demonstrate how individuals, rather than regurgitating a catechism, could learn to discern moral truths for themselves through a reasoned reflection on the sentiment of sympathy. She predominantly engaged with the ideas found in the moral, pedagogical, and epistemological works of Rousseau, Smith, and Locke. Despite the circumstances of its eventual publication as an accompaniment to her translation of Smith’s Theory of Moral Sentiments, it is argued that Grouchy demonstrated significant disagreements with Smith, and instead hewed closely to the ideas of Rousseau.

This chapter delves into the concept of legitimacy and introduces the readers to key debates on regulatory legitimacy. The concept of legitimacy has been extensively studied by scholars from various academic disciplines, including political theory, legal theory, political science, sociology and management studies. The resulting body of scholarship has, however, tended to remain in disciplinary siloes, making the study of legitimacy difficult to navigate. Chapter 11 offers first an exploration of different legitimacy claims that justify why individuals recognize an authority and its rules as legitimate. The chapter then moves to regulatory legitimacy.

During the 1750s and 60s, Rousseau formulated perhaps the most influential philosophical and political arguments for sentimentality and the tableau. Against the claim of early capitalist ideologues that society was no more than a rational balance of individuals’ material ‘interests’, Rousseau imagined the mythical origin of society as a theatrical scene or musical performance, in which self-regard or vanity (amour-propre) competed with sympathy and tenderness towards others. The balance between these could be tipped away from individualism through the persuasive power of sentimental music and drama, shaping public opinion by absorbing audiences in its affecting tableaux. This vision proved its political effectiveness in eighteenth-century opéra comique and nineteenth-century Romantic melodrama. On the other hand, Rousseau’s denial of rights over public sentimental feeling to women, though contested, in the long run weakened sentimentality by making it into a private, domestic commodity – as shown by the history of another genre Rousseau inaugurated, the romance.

Rhetoric was embedded in French Catholic education, and in revolutionary Paris rhetorical skills proved essential for any politician who wanted to command the assembly. Fabre d’Eglantine was an actor and director All expert in manipulating the political action behind-the-scenes. His play Philinte propounded Rousseau’s ideal that theatricality should be avoided in human life. Hérault de Séchelles by contrast drew on training by the classical actress Clairon to become a successful political orator, not ashamed to theorise the art of persuasion. The Marquis de Condorcet was a constitutional theorist who believed in truth, but lacked the performance skills to persuade others. The Comte de Mirabeau demonstrated outstanding skill as an orator and politician in the first years of the revolution, making no show of high personal morality, in contrast to Maximilien Robespierre who, partly in reaction, set himself up as a man of total sincerity. He bypassed the Assembly to control events through the more intimate forum of the Jacobin club. His sense of personal conviction owed much to Rousseau.

Chapter 27 emphasises the importance of French sources in shaping Goethe’s thinking on all fronts. The formative role of French began in his early years, owing not least to the French occupation of Frankfurt, evolved during his time as a student in Leipzig and Strasbourg, and was supported throughout Goethe’s adult life by his voracious reading. The chapter considers Goethe’s attitude, by turns admiring and ambivalent, to the Enlightenment philosophes, Voltaire, Diderot and Rousseau, and highlights the significance of the liberal journal Le Globe for Goethe towards the end of his life.