Difference Between Legislative & Executive Branches

This article is an excerpt from the Shortform book guide to "The Social Contract" by Jean-Jacques Rousseau. Shortform has the world's best summaries and analyses of books you should be reading.

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What are the two branches of government discussed in Rousseau’s The Social Contract? What are their different roles?

In The Social Contract, Jean-Jacques Rousseau explains that a government is needed to run the day-to-day operations of a state. He divides government into two branches: legislative and executive.

Here’s his discussion of the difference between the legislative and executive branches of government.

The Legislative and Executive Branches

While the sovereign provides legitimacy to the state, Rousseau argues that it cannot handle the day-to-day governing of the state. The sovereign can’t make decisions about specific matters, as they’ll inevitably divide public opinion—a “collective will” is impossible. The sovereign therefore must create a government to run the specific operations of the state, acting as a middleman between the sovereign will of the people and individual citizens.

(Shortform note: Rousseau’s insistence on an undivided sovereign reflects his concern that any division would invite a majority of citizens to infringe upon the freedom of the minority. This oppressive majority rule over a minority is what French philosopher Alexis de Tocqueville’s (Democracy in America) calls “tyranny of the majority.” By creating a government that acts on behalf of all citizens, Rousseau ensures that the sovereign can’t devolve into this type of tyranny.)

The sovereign empowers the government to pursue the common good, the government does so by legislating and enforcing specific laws, and then individual citizens must live under those laws. This process is part of the exchange of freedoms required by the social contract: Laws limit individual freedoms but are an expression of the sovereign’s civil freedom to pursue the common good.

(Shortform note: Rousseau suggests in his later work Confessions that in addition to performing the daily operations of the state, the best government is one that creates the most moral and virtuous citizens. He brings up this idea of government as a moral educator throughout The Social Contract, emphasizing that the government must consist of wise and virtuous individuals. This suggests that the rules, systems, and limits on government power that he focuses on in this book, and which we’ll explore over the next few sections, are insufficient for a legitimate state.)

Rousseau divides legitimate government into two branches: legislators who create a constitution and executives who create and enforce specific laws. Here’s his discussion of the difference between the legislative and executive branches of government.

The Legislative

The legislators write a constitution consisting of rules for how the government functions. Their main goal when writing this constitution is to express the sovereign will of the people, preserving liberty and equality—in other words, the common good. There’s no one constitution perfect for all states; instead, the legislature must create one specific to their own state’s circumstances. While the legislators create the constitution, the sovereign alone has the right to make it into law and the right to change it (more on this in Part 4).

Rousseau explains two reasons why the legislators must exist separate from the sovereign and the executives:

They must exist separate from the sovereign because the sovereign is responsible for making the constitution into law—if the legislators could create and approve their own rules, then they would be free to act in self-interest.
The legislators must exist separate from the executives to prevent a conflict of interest; after all, the constitution consists of limits and rules executives must follow.

Representatives in a Legitimate State

Rousseau has a complicated view on representatives in government. On the one hand, he argues in book three of The Social Contract that representatives cannot speak for the will of the sovereign. On the other hand, here he suggests that legislators must create laws on behalf of the sovereign in a legitimate state.

Some scholars attempt to resolve this contradiction, arguing that Rousseau intends for the sovereign to act as a gatekeeper for potential legislation, rather than as a creator. Under this interpretation, the sovereign expresses the general will by blocking laws or government members (more on this in Part 4) instead of by writing laws themselves. This perspective resolves the contradiction: The sovereign still speaks for itself, but also requires legislators to propose potential laws.

The Executive

Once a government has a constitution, it will need executives to make and enforce laws and manage the affairs of the state. Rousseau explains that an ideal executive must follow three directives in their decision-making:

Pursuit of the common good is the first priority of any law or decision since the sovereign empowers the executives for that specific purpose.
As a second priority, the executives must maintain their own authority—that is, they need to maintain the power to deal with specific decisions because the sovereign can’t.
Executives must work to prevent self-interest from influencing their decision-making because self-interest will inevitably conflict with the common good.

Executive Standards of Legitimacy

While Rousseau provides these three guidelines for executives’ decision-making, he doesn’t elaborate on what following them would look like. For more specifics on how these executives should make decisions, political philosopher John Rawls provides two standards for ensuring legitimate use of government authority:

1) The government must create laws with just outcomes. To Rawls, “just” means the fair application of the law to all citizens.

2) The government must create laws according to existing rules and systems for government function—in other words, its constitution. A law that has a just outcome but wasn’t created in accordance with these systems is illegitimate.

Rawls’s two standards apply to all three of Rousseau’s directives for executives:

Common good: A law that applies fairly to all citizens (following Rawls’s first standard) is in service of the common good because no one is favored over anyone else.

Maintain executive authority: Rawls’s second standard of using rules and systems for governance allows executives to clearly define their own authority—and a clear definition makes it harder for the sovereign or legislators to infringe on executive authority.

Avoid self-interest: Both of Rawls’s standards apply here: By creating just laws and following the limits on executive authority established by the constitution, executives can avoid making laws out of self-interest.

The state must find executives who strive to follow these three directives so their government can exercise legitimate authority. Rousseau outlines three different systems a state might use to pick these executives:

System #1: Democracy

First, Rousseau discusses democracy: a system where all citizens act as executives, making and enforcing laws.

(Shortform note: When Rousseau discusses democracy, he’s talking about direct democracy, rather than representative democracy. Here’s the difference between the two: Direct democracy is a system of government where citizens vote on all major decisions or issues that the government faces. The most famous example of a true direct democracy is the ancient city-state of Athens. Representative democracy is a system of government where citizens elect representatives to participate in the government—this is the system most people refer to today when talking about democracy. Representative democracies include countries like the modern-day United States, France, or Singapore.)

Rousseau argues that a democratic government can rarely exercise legitimate power: In other government systems, the sovereign and the constitution place limits on the executives. However, in a democracy, the sovereign is the executive and doesn’t need a constitution on its behalf. Therefore, nothing prevents a majority of citizens from creating and enforcing laws out of self-interest. When they do so, they force their will upon the minority of citizens, no longer pursue the common good, and therefore can’t exercise legitimate power.

(Shortform note: For a deeper explanation of why democracy often collapses due to self-interest, we can look to Plato’s Republic. Plato argues that a democratic state is run by those who can persuade the most people—not those who are the smartest or wisest or most moral. Because of this, a democratic state doesn’t run by consistent moral standards—people value whatever appeals to them most, rather than what they find the most just or wise. Therefore, democratic society runs on self-interest. Plato argues that such a society will eventually collapse into tyranny when a leader can appeal to citizens’ self-interests in exchange for increasing political powers.)

System #2: Monarchy

Second, Rousseau discusses monarchy: a government with a single executive. Rousseau argues that a monarchical government is seriously flawed, and can rarely exercise legitimate power. A government run by a single individual is particularly vulnerable to the flaws, whims, and selfish interests of that individual.

System #3: Aristocracy

Finally, Rousseau explains aristocracy: a government composed of a small group of individuals, acting separately from the sovereign. Three guidelines can determine the executives in an aristocracy:

Those who have the most power or wealth
Those who inherit their power
Those who the people elect

Rousseau argues that the third guideline—determining aristocrats through elections—is usually the best choice for creating a legitimate government, as it allows for wise and skilled executives chosen by the people rather than executives who simply have power, wealth, or a certain lineage. He explains that a smaller group of talented executives function better than the large government of direct democracy without relying too much on one individual like a monarchy.

The Values of Governments

Baron de Montesquieu’s The Spirit of the Laws also compares different government types and explores what keeps them stable or causes them to collapse. However, while Rousseau argues that the key values behind any legitimate government must be liberty and equality, Montesquieu argues that different government types require different key values to be stable and effective. Montesquieu outlines four types of government and explains the key values behind each:

1) Democracy: The key value behind democracy is virtue: love of the state and of good citizenship and a willingness to make personal sacrifices for the good of the state as a whole. A stable and beneficial democratic government needs virtuous citizens because virtuous citizens want to participate in government and to keep its various institutions stable.

2) Despotism: Montesquieu’s definition of despotism is similar to Rousseau’s definition of a monarchy—a government run by a single individual with absolute power. Unlike a monarchy, however, the key value behind a despotic government is fear. If subjects no longer fear a despotic government, then they will either hold it accountable or overthrow it—the former makes the government no longer despotic, and the latter makes it fail entirely.

3) Monarchy: Montesquieu uses a different definition of monarchy than Rousseau: a government united under a single individual with effective laws limiting the power of that individual. The strength and effectiveness of these laws separate monarchy from despotism. The key value behind monarchy is honor: submission to the state and participation in its institutions out of self-interest. Honor is necessary for a monarchy because it doesn’t have the power of a despot to force obedience, but also can’t offer its subjects the same political rights as a democracy.

4) Aristocracy: Montesquieu defines aristocracy as a government run primarily by a hereditary, landed group of nobles—even if it has a monarch. The key value of aristocracy is moderation: the ability to balance the political powers of the state’s monarch, nobles, and subjects. By correctly moderating the political powers of these groups, an aristocratic government makes them all work together in a stable and effective state and prevents any group from becoming strong enough to overpower the others.

Difference Between Legislative & Executive Branches