No doubt, Rousseau’s recourse to an enigmatic lawgiver in the midst of a theoretical inquiry aiming to map out the normative grounds of a self-legislating political community has sparked much debate and criticism. For some, the lawgiver indicates a democratic deficit in his thought. In this view, “Rousseau could not conceive of a self-fashioning people and so he invents, literally, a deus ex machina,” a somewhat implausible conceptual device, designed to bridge the gap between will and reason, consent and wisdom, democratic legitimacy and the common good.4 According to another line of interpretation, Rousseau’s appeal to the lawgiver models how the achievement of democratic autonomy is contingent on a heteronomous intervention at a fundamental conceptual level, inviting us thereby to reflect on the limits of normative ideals and their problematic construction.5 We will look at some of these interpretations more closely in due course, especially in discussing the contemporary restatements of the paradox of founding below.
In “What Is the Third Estate?” Sieyès encounters the paradox of founding from a different angle. Unlike Rousseau’s formulation, this version of the paradox turns on the institutional and procedural presuppositions of democratic will-formation rather than its ethico-cultural conditions. The central question that frames Sieyès’s argument is the following: “what should be understood by the political constitution of a society and how to identify its just relationship to the nation itself?”6 In response, he writes:
It is impossible to create a body for an end without giving it the organization, forms and laws it needs in order to fulfil the functions for which it has been established. This is what is meant by the constitution of that body. It is obvious that it could not exist without one…. Thus the body of representatives entrusted with the legislative power, or the exercise of the common will, exists only by way of the mode of being which the nation decided to give it. It is nothing without its constitutive forms; it acts, proceeds, or commands only by way of those forms.7
Notice that in defining the constitution this way, Sieyès puts the emphasis on its enabling rather than restraining functions. Even though constitutional laws do and must bring certain limits on the exercise of power, they always do so by establishing the institutional and procedural forms in and through which the exercise of power becomes possible in the first place. In this respect, to borrow John Searle’s distinction, constitutional laws function not only or even primarily like “regulative rules,” which govern practices that exist regardless of the rule (e.g., parking is prohibited), but also, and more important, like “constitutive rules,” which make a certain kind of practice possible in the first place (e.g., the queen can move in all directions).8
Having thus clarified “what should be understood by the political constitution of a society,” Sieyès then turns to the second half of the question: “how to identify its just relationship to the nation itself?”9 In response to this question, he introduces the well-known distinction between “constituent” and “constituted” powers. The power of the government—or the power to rule in accordance with and as prescribed by the law—is a constituted power in that it is subject to the fixed forms articulated in the constitution. However, the power to articulate these forms, namely, the power to make the constitution itself, is by definition of a different order. “In each of its parts a constitution is not the work of a constituted power but a constituent power.”10 This power belongs only and exclusively to the people, who can use it at will and give the constitution whatever form it wants. “It would be ridiculous,” Sieyès argues emphatically, “to suppose that the nation itself was bound by the formalities or the constitution to which it had subjected its mandatories.”11 In its capacity as the constituent power, thus, the people is claimed to be beyond and above all institutional forms.
The paradox of democratic will-formation asserts itself precisely here. On the one hand, Sieyès has a point. If the people are to be taken as the locus of constituent power and the ultimate source of legitimacy on which the constitution rests, then their will must in some sense precede and underpin the constitution. On the other hand, as Sieyès acknowledges in his own definition of the constitution, a collective body can hardly act in a purposive way without the “internal forms” or the “constitutive rules” that enable it to do so. This makes it hard to understand how the people can exercise their constituent power. “There is no reason to be afraid of repeating the fact that a nation is independent of all forms,” Sieyès wants to reassure his readers, “however it may will, it is enough for its will to be made known.”12 But this is not a solution to the problem; if anything, this is a restatement of the problem. After all, how is it possible for the people to form and express their will outside all procedural and institutional forms, the establishment of which is of course the task of the constitution itself?
Sieyès seems to think that the solution resides in the concept and practice of representation. “Since a great nation cannot in real terms assemble every time that extraordinary circumstances may require,” he says, “it has, on such occasions, to entrust the necessary powers to extraordinary representatives.”13 But notice that the problem at hand does not primarily turn on the practical impossibility of convening the people together. It is first and foremost a conceptual problem, and the call for “extraordinary representatives” would only highlight its persistence. How can the people—abstracted from all positive forms whatsoever, including by definition the electoral laws and regulations as well—elect these extraordinary representatives, that is, the members of the constituent assembly, and give them a coherent mandate?14 It seems that beyond and above all established procedures, the people are not only incapable of exercising constituent power on their own, but they cannot even delegate or entrust it to a constituent assembly, except on pain of circularity.
In 1788 (just a year before the publication of “What Is the Third Estate?”), Madison addressed the same issue in the context of the American constitutional debates. Unlike Sieyès, however, he acknowledged the vexing nature of the problem from the outset. In response to the charge that the Philadelphia Convention of 1787 transgressed its mandate by framing a new constitution, he writes: “in all great changes of established governments, forms ought to give way to substance … since it is impossible for the people spontaneously and universally, to move in concert toward their object; and it is therefore essential, that such changes be instituted by some informal and unauthorised propositions, made by some patriotic and respectable citizen or number of citizens.”15 Madison squarely admits that an “unauthorised” move is necessary to break the vicious circle in which every act of foundation with a democratic intent is caught up. Those who get together to frame a new constitution in an assembly speak in the name of a people who could not have duly authorized them or given them a coherent mandate. In this respect, there is a sense in which constituent assemblies play a formally similar role to Rousseau’s lawgiver. In both cases, “the people” seems to emerge as a democratic agent capable of self-determination only after the fact, that is to say, only when somebody else lays down the enabling conditions of democratic will-formation, whether these conditions are construed in terms of a civic ethos or a set of procedures and institutional forms.16
Does the Paradox of Founding Involve a Category Mistake?
What do we make of the paradox of democratic founding? The foregoing exposition is meant to give the conceptual contours of the problem; yet, it does not tell us how we are supposed to make sense of it. The problem is clear in its two basic versions, but what does it really signify? For some, to put it in a straightforward manner, it does not signify anything important or consequential. This, for instance, is Hegel’s view on the topic. He thinks that the paradox in question designates a trivial issue, which hardly merits serious treatment. More specifically, he takes it as yet another example of “those confused thoughts” arising from the “garbled notion of the people”—or, which comes down to the same thing, as a category mistake regarding the