Rousseau’s Social Contract begins with breathtakingly ambitious declarations about freedom and justice. Yet the project comes to an abrupt end, and the manuscript remains a fragment. Given that Rousseau sees daring arguments to their end elsewhere, why was this particular project – one so close to the core of his thought – abandoned? On the surface, the Social Contract appears beset by contradictions, but it pursues its conclusions toward an intricate and audacious coherence, giving an account of ancient political orders to overcome what Rousseau understands as misapprehensions associated with the Enlightenment. Yet it is not the Enlightenment, but Christianity that inaugurates the break with and confusions of ancient political distinctions. An attempt to confront this origin directly shatters Rousseau’s penultimately profound coherence. In remarkable congruence with patterns of figurative language developed in Descartes, Rousseau seeks to both ground and energize his account of political life by deploying diverse, often distinctly modern aspirations and metaphors in order to escape the Christian interruption of proper political ordering and concludes he cannot do so.

Rousseau has long been understood as a theorist of inequality – though attention to Rousseau has been largely directed to his 1754 Discourse on the Origin of Inequality. While scholars are, naturally, right to address this central work, they would do well to consider what can be learned from other works, including The Social Contract (1762). In this text, readers often neglect a passage that Rousseau himself highlights: that “the end of every system of legislation … comes down to the following two principal objects, freedom and equality” (II.11). This chapter explores Rousseau’s understanding of freedom and equality with special attention to the latter as manifested in the problem of economic inequality. In doing so, further, it details how his thinking about freedom and equality were shaped by the ancient sources of Plato and Plutarch – his two favorite ancient thinkers. In both ancient sources, it turns out that economic equality is essential to achieving either political freedom or civil harmony. This essay, thus, not only details the centrality of economic equality to Rousseau’s political thought but also provides a serious account of how he came to this position.

This chapter focuses on Rousseau’s underappreciated treatment of voting and electoral laws. It argues that these are a worthy and essential part of the Social Contract – a matter of political life and death. First, Rousseau sees universal suffrage as necessary for establishing a political community, for selecting its form of government, and for discerning the general will. Second, electoral reforms are the primary mechanism for reducing the speed of political decline and “death.” The chapter brings together Rousseau’s remarks on the design of electoral districts, the manner of voting (i.e. timing, place, secret vs. open, order of casting ballots, thresholds), and the aggregation of votes, drawing primarily on his examples of flawed but enduring republics such as Rome, Sparta, Venice, and Geneva. Instead of reconstructing Rousseau’s blueprint for the perfectly just republic, the chapter shows how frequent and appropriate electoral reforms allowed these republics to outlive even their less corrupt contemporaries.

The success of Rousseau’s political vision depends on citizens placing the common interest above their private interest whenever the two conflict. Rousseau says very little about how citizens could be motivated to do so in the Social Contract, however, which gives rise to questions about how the text relates to his other works. This chapter challenges liberal-egalitarian interpretations of Rousseau that draw on Emile to extract a model of modern citizenship for the Social Contract and instead argues that the Discourse on Political Economy is the most informative text for understanding the theory of republican citizenship required to make the Social Contract project viable. In doing so, it elucidates the moral psychology underpinning Rousseau’s proposals for cultivating political virtue, before responding to the objection that this cannot have been what he had in mind for his native Geneva, which he claimed to have taken as the model for the Social Contract.

Although equality lies at the heart of his political theory, Rousseau also argues that physical and natural inequalities are inescapable and significant. How can people who are naturally unequal become political equals? This chapter considers three possible mechanisms by which political equality could “substitute” for inequality – through education, by convention, and via deliberate opacity – and supports the third. Drawing on the account of a range property made famous by John Rawls, the opacity mechanism enables political equality among those with sufficient judgment to serve as citizens (relegating others to the status of subjects) but does not peer closely into disparities among them. However, unlike other social-contract accounts, the justification for opacity in Rousseau’s thought rests on his distinctive concern for the destructive potential of amour-propre.

Like all revolutionary processes, those that led to Latin American independence were highly volatile and experimental in nature. Often accompanied by extreme violence, even open warfare, the formation of the new Latin American states in the early nineteenth century required imagining new states, institutions, and laws. The need, often urgency, to transform colonial domains into various independent units frequently coincided with the desire to end (or at least modernize) the Ancien régime. Yet the wish to supersede the past did not guarantee rupture. Instead, it initiated a period of questioning more often than answering, of experimenting more often than finding solutions. After describing the context in which the independence took place, this chapter surveys some of the questions that had to be answered, mostly by identifying debates that required settling and the difficulties entailed in achieving this goal. It examines who had the power to declare independence, how to identify the territories that would become new polities, how the national territory and citizenship were defined, how new republican structures should be formed, and elections conducted, and the legal changes all these developments entailed.

This book is the result of a collective effort by a group of scholars from Latin America, Europe, and the USA, who together wished to write a legal history that would center on the common experiences of Latin American societies over a long period, which began before Europeans invaded the continent and continue to date. The aim was to identify a narrative that would observe common trends, manifest the dramatic shifts that had occurred throughout this period, and insert these findings into a wider perspective. This in turn would reveal that debates taking place in Latin America were often linked to discussions transpiring elsewhere, to which they both contributed and from which they received input and inspiration. Our first aim, therefore, is to craft a pan-Latin American narrative and insert it into a global perspective. Our second aim is to propose a new methodology that places at the center questions rather than answers, processes rather than results, and contexts rather than descriptions of solutions. We also want to demonstrate the multiple levels on which law operates and how deeply it is embedded in social, political, cultural, and economic processes.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

This chapter examines the ways in which the sovereign, monocultural, and monist state that was dominant in Latin America starting in the nineteenth century has mutated over the last thirty-six years. It begins by offering a description of the initially dominant model and then introduces the multicultural liberal and radical intercultural models that replaced it by politically and legally recognizing the cultural diversity that characterizes Latin American societies. The chapter then explores the discursive and practical challenges generated by illegal normative systems (such as those managed by guerilla or paramilitary groups, or criminal organizations), and by extralegal normative system (such as the regulation of private property in peripheral urban neighborhoods) which compete with the sovereignty of states and official law. The constitutional bloc, the Inter-American Human Rights System, and bilateral or multilateral treaties signed by Latin American states further pluralize legal creation and weaken the concept of absolute state sovereignty. This chapter characterizes these developments as instances of either weak or strong legal pluralism.

After many years during which indigenous laws were mostly absent from narratives of Latin American law, presently, legal historians wish to integrate them. However, to do so requires answering the question of what we know about indigenous laws and how we can approach them. Writing the history of indigenous laws from precolonial times is especially challenging not only because of the diversity of human groups that occupied the continent, but also because of the disparity of available sources, ranging from material vestiges and pictographic documents to texts produced in indigenous writing systems. Furthermore, the colonial period has left us with a wide range of alphabetic texts, diverse in authorship, languages, formats, degree of accuracy, and sources selected, that describe precolonial law. Indigenous peoples, mestizos, and Spaniards also wrote historical narratives and accounts of deeds and services; furthermore, they participated as litigants in lawsuits in which they expressed their vision of law and justice. What does this evidence tell us about precolonial normative orders and the way in which they intersected with colonial law after the Iberian imperial conquests? To answer this question, this chapter proposes an interdisciplinary approach, surveying what has been done, and what could still be done.