Rousseau, Constituent Power, and the Referendum

Abstract This chapter argues that Rousseau’s social contract theory had a ‘positive’ collective aspect that provides the basis of a constitutional theory where the concept of constituent power plays a central role. Unlike other social contract theorists, Rousseau did not frame the main objective of the social contract negatively (i.e. protecting individuals from the state) but as that of creating a self-governing community. The chapter explains the ways in which Rousseau’s conception of a sovereign people who adopts rules of a fundamental nature and of a limited government that executes them, anticipated the theory advanced by Sieyès and considers the place of ‘the Legislator’ in that approach. Finally, it maintains that Rousseau’s notion of generality, as a condition of law’s legitimacy, can help us make sense of current debates about the limits of political power and about the desirability (or necessity) of referendums for the ratification of different types of constitutional decisions.