Contracting the Signature
It may easily be overlooked that Rousseau’s most widely read text has as a first title “Du contrat social.” The preposition in the title tends to disappear, leaving only the definite article, so that one commonly refers to “Le Contrat social,” or “The Social Contract.” The truncation is frequently required by the syntax into which the title is inserted: it is clumsy, if not altogether ungrammatical, to speak of “Of the Social Contract.” The encounter of the two prepositions interrupts the syntactic flow and creates a rift in the fabric of the sentence. Thus a curious effect is set up as soon as one speaks of Of the Social Contract: either one quotes or translates the title precisely, disregarding the faulty syntactic articulation, or else one quotes imprecisely, preserving syntactic order. It is as if, to make Du contrat social fit certain modes of reference, an excess particle had to be cut off. This uneasy fit would not be too worrisome if one could be certain that only the form of the work’s title was being tampered with. But, precisely, the title’s form should warn us that nothing is less certain.
In the foreword introducing his text, Rousseau refers to it as a “traité” or treatise. Adding this term to the title yields “un traité du contrat social,” or “un [écrit où il est] traité du contrat social.”1 Such a formula seems reassuring as to the stability of the referential system one is about to enter. This stability, however, begins to tremble once one notices that “traité” and “contrat” are basically the same word put to only slightly different uses. Indeed, “traité” in the sense of “treaty” may be used more or less interchangeably with “contrat” as meaning a convention or agreement between parties. If the “traité du contrat social” is a “contrat du contrat social,” then “contrat” is doubly in question as both that which is designated and that which designates it. The term to be defined is included within the defining term. What Paul de Man has shown to be the incompatibility between the constative and performative functions of the contract is thus in place in this text from the very first word of its title.2 The “du” of Du contrat social would mark the articulating joint of these two functions which cannot be closed by the totalizing mechanism that would be the social contract.
This remark implies another reading of the troublesome particle in the title: as the mark that exceeds or prevents a totalizing reference, it signals a certain partialness or partition and suggests the use of “du” as a partitive article. Du contrat social might thus be better translated as “Some Social Contract” or even “A Piece of the Social Contract.” What one reads would have been “tire du contrat social,” drawn from or taken from a large—we cannot say whole so let us say nontotalizable fabric or texture.
With the words contrat, traité, and tirer we remain within the semantic field of tractum, the tuft of wool drawn first into a thread before being twisted with other threads (to form the woof) and drawn through the warp. The crossing of these properly textile threads with a textual activity forms one of the most well worn and familiar of patterns. It is, so to speak, woven into the language of contract, treaty, treatise, and text. Contracting to treat the contract, then, Rousseau could hardly have avoided being drawn into a network that, on the other hand, never becomes an explicit theme or analogy. There is, in other words, no attempt to extract from the network some figure of weaving which could then serve as a model or point of reference for the contract to be defined and the contract defining it. Such a model, nevertheless, was clearly available in a text to which Du contrat social refers throughout: Plato’s dialogue The Statesman.3
There, it is the paradigm of weaving, the art of interlocking the warp and the woof, which seems to allow the interlocutors to extract the art of the statesman from all the other activities of the city and to place it in the ruling position. The royal weaver is said to command all the other arts that together produce the fabric of the city: his supreme art is to assemble the other arts, which can be classified as arts either of separation and selection or of assemblage and combination. The dialogue, an exercise in dialectics, draws distinctions and draws together in the portrait of the king. But this portrait cannot mask the necessity for the royal weaver’s art to be not yet one, not the total art that brings the city together as a whole, but two—assembling and separating. In his final traits, which combine all those of his subjects, the weaver/ruler must know how to discard as well as integrate the elements at his disposal:
—Eleatic: Is there any science of combination which, if it can help it, will construct even the meanest of its products of bad materials as well as good? Is it not true universally of every science that, so far as it may, it discards the bad materials and retains the appropriate and good, whether they are alike or unlike? It is by working them into one whole that it fabricates a product of single quality and form?
—Socrates Junior: Why surely.
—Eleatic: Then we may be sure that neither will true natural statesmanship ever, if she can avoid it, construct a city out of good men and bad alike.… Hence those who prove incapable of any share in the brave and the modest temper and the other dispositions which tend to virtue, but are driven by their native evil constitution to irreligion, violence, and crime, she expels by the punishment of death or exile, or visits with superlative infamy.4
This double art is reflected so closely in the procedure of the dialectician that from time to time he stops and asks his pupils whether their aim is to learn the traits of the weaver king or the traits of their own art. Weaving is a metaphor for ruling, which is a metaphor for writing, which is a metaphor …
Yet, as we said, despite the metaphoric field into which the tractum draws Rousseau’s text, Plato’s paradigm of weaving finds no explicit echo in Du contrat social. The double arts of assembling and separating, gathering and discarding are given no single and totalizing point of reference outside their contrary, contracting movement through the text. The movement extends beyond the text’s limits: it is not set in motion at its outset, nor does it conclude where the text concludes. Both of these limits are but arbitrary cuts made in the chain of the social contract. That the work titled Du contrat social had to be cut from a larger fabric, that the treatise is a contraction and an extraction, is remarked at either edge of the text. These pieces of Of the Social Contract, neither simply inside nor outside the treatise, would be like the fringe on a woven fabric, the slight extension of the chain or the warp necessary to prevent an unraveling along the line of the cut.
(A question we hold in reserve: If one must sign at the edge of the text, how can these fringelike extensions support a signature?)
We have already mentioned one of these pieces: the avertisse-ment or foreword from which we drew the term “traité.” It is very brief, but its brevity does not rule out a certain complexity.
Ce petit traité est extrait d’un ouvrage plus étendu, entrepris autrefois sans avoir consulté mes forces et abandonné depuis longtemps. Des divers morceaux qu’on pouvait tirer de ce qui était fait, celui-ci est le plus considerable, et m’a paru le moins indigne d’être offert au public. Le reste n’est déjà plus. (3:349; italics added)
(This little treatise is part of [extracted from] a longer work, which I began years ago without realizing my limitations, and long since abandoned. Of the various fragments that might have been extracted from what I wrote, this is the most considerable and, I think, the least unworthy of being offered to the public. The rest no longer exists.)5
The trait of the tractum insists in these several lines that confirm the partial status of this treatise extracted from a more extensive work which we had already begun to read in the title. Also, despite the conciseness and the apparently limited functionality of these lines, a note of pathos is struck which warns one to read this warning label carefully. The extraction and setting apart of a part of the social contract may not have been such a simple operation. The very least one can say is that it does not cut out a piece from some larger cloth along a clean, indivisible line, but rather the cut itself takes on a certain extension or breadth that is contained by neither the part nor the whole even though it is produced by nothing but their differentiation. This “nothing but,” in other words, is not simply nothing: the differentiation of partial text from more extensive text has been negotiated in yet another text that sets the terms of the division or extraction. And these terms describe a zigzagging pattern in the space of just three sentences.
Besides the three different inflections of tractum (“traité,” “extrait,” “tiré”), the word “plus” occurs in each sentence and each time is pulled in a different direction. From the comparative “un ouvrage plus étendu” to the superlative “[le morceau] le plus considerable,” the movement of the signifier goes counter to the movement of the signified from larger extension to smaller piece. This double movement negotiates the terms by which the smaller unit—“ce petit traité” called Du contrat social—can be considered “le plus considerable” and taken as a part to represent the whole. The displacement of a “plus éten-du” by its lesser but most considerable representative is completed and rendered irreversible by the final use of “plus” as a temporal adverb: “Le reste n’est déjà plus.”
The syntax of this latter sentence demands that it posit the very remains that it states no longer exist. The predicament can be rendered if one translates the phrase as “There remain no remains,” where, in spite of what is declared, something remains. But it is this sentence as well that gives the little hors d’oeuvre its predominant note of pathos, and one has little difficulty picturing the somewhat pitiable scene of Rousseau, his strength exhausted on a work he could not finish, forced finally to destroy the greater part of it. Besides being unlikely,6 this scene may be diverting one’s attention from the drama on the page which follows a somewhat different scenario.
What is pitiable there is that the movement—put in motion by a desire—to represent the whole comes up against the obstacle of an excess of articulation that cannot be incorporated into the representative part or made to disappear with the rest. This surplus would be something like the contract of the Of the Social Contract, that is, of a text in which the issue is the contract between a particularity and a more extensive generality. We could thus say that, in or at this fringe, Du contrat social contracts itself: on the one hand, it contracts with itself, negotiating an incorporation of whole into part; on the other hand, this act of incorporation is effected only by means of a contraction or constriction of the larger extension. These are the terms that allow a work titled Du contrat social to be “offert au public.” In that work, however, what is described is a social contract that contracts itself in apparently the opposite direction: particular will incorporated into general will, part contracting itself into the whole. To put it another way, Du contrat social is the result of a contract whose terms reverse those of the social contract to be defined and described within. This reversal is the fold of a textuality that can never incorporate the surplus of its performance in what it can say about itself. A remainder will remain, even or rather especially when it is stated that nothing remains.
A Signature Surplus
This is already to read an entire program in the three sentences of the avertissement. Specifically, we are reading a textual program that exceeds and, to some extent, overturns the terms of the contract it also allows one to describe. But we have not yet exhausted all one may read there. It is implied that the contraction of the “ouvrage plus étendu” into “ce petit traité” is due to an outside constraint rather than an internal necessity, internal, that is, to the logic of the work. The outside constraint is “mes forces,” which were exhausted before I, Rousseau, could complete the whole work. The limits of Du contrat social correspond, then, to the limits of “mes forces,” whereas the unrealized “ouvrage plus étendu” would have corresponded to a desire that exceeds those limits. Such a description of a constraining exteriority fits more or less with the conventional representation of author as simply external to the work signed, somewhat in the manner of cause and effect. By remarking the place of the signature on Du contrat social, however, the avertissement renders this simple representation of exteriority inadequate to account for the notion of a forced signature, for the resignation to a force of contraction. The signature of Of the Social Contract is here described as contracted by a force exercising a limiting constraint on the extension that that signature would embrace if it were carried only by desire. But there is a problem with this description, the problem precisely of the place of the signature, which arises from the unmistakable resemblance between the signature on the text and a signature in the text, between the signing of Of the Social Contract and a signing in Of the Social Contract of the social contract.7
The air of resemblance is most striking in the following passage, which was deleted in the final version:
Let us begin by enquiring whence the need for political institutions arises.
Man’s strength is so strictly proportionate to his natural needs and to his primitive state that when this state changes, or these needs increase, be it ever so slightly, the help of his fellow-men becomes necessary to him. When, finally, his desires encompass the whole of nature, the co-operation of the whole human race is hardly sufficient to satisfy them. (155; 3:281–82)
This general description of the disproportion between a limited quantity of force and an unlimited extension of desire concurs with the particular version of that disproportion which Rousseau gives in the avertissement. There is as yet nothing too problematic at this level of resemblance: the condition of a particular man, divided by the difference between his force and his desire, is the same as the condition of every man no longer in “his primitive state.” Yet it is also this principle of resemblance between the particular and the general, between man and whole human race (le genre humain), which, it is implied, is responsible for the divisive disproportionality of a desire to embrace “the whole of nature.” With the power to conceive the generality of “le genre humain” (the power of the principle of resemblance) comes the desire to have power over that generality, a desire that quickly encounters the obstacle of one man’s limited strength.8 There are two possible exits from this impasse: some form of enslavement, in which the force of a multitude of men is made to serve the desires of one man; and the social contract, in which the parties agree that the only way they will realize their desires is through the medium of what will be called the general will. In the definitive version of this moment, which Rousseau restates in preamble to the precise terms of the contract in book I, chapter 6, the choice of enslavement has been effectively eliminated. The only alternative to the social contract is quite simply the end of the human species:
I suppose men to have reached the point at which the obstacle in the way of their preservation in the state of nature shows their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state. That primitive condition can then subsist no longer; and the human race would perish unless it changed its manner of existence. (173; 3:360)
Few readers of Du contrat social have failed to notice that the distinction of a just from an unjust social order at every point threatens to collapse around the lack of a stable referent for the general will. But it is not this internal instability that I will pursue at this point. Rather, I want to return to the question of resemblance between the signing of the social contract—an act that, in the literal or historical sense, never takes place, that is itself structurally impossible—and the signing of Of the Social Contract. As we have already remarked, the resemblance between these two acts seems at first motivated by a structure of inclusion: Rousseau’s particular condition is included within a general condition of humanity. The shift that is evoked from the equilibrium of a state in which “men’s strength is … proportionate to his natural needs” to the disequilibrium engendered “when this state changes … be it ever so slightly” joins what is perhaps the most consistent motif in Rousseau’s work, a thread that connects the earliest anthropological and political texts to the last autobiographical ones and that finally overrides their clear generic distinction.9 And this is to remark that the general structure within which the particularity of Rousseau’s signature is inscribed here—the divided condition of force/ desire—has been reinscribed under that signature with such insistence that their traits are interchangeable. Instead, therefore, of a resemblance based on a simple structure of inclusion, a double inclusion is implied in the uncanny topology of a part comprehending the whole of which it is a part. The topology is uncanny because the comprehension of the whole by the part can proceed only by a division of the part from itself, by a repetition of its mark outside that of which it is part of the inside. A coincidence of the whole with its conceptualization, which alone could remedy the division between force and desire, is deferred indefinitely along the line of this repetition. Dividing itself from itself, standing outside itself, the most familiar becomes the most estranged. Rousseau’s signature is the uncanny mark of a desire to cure the very division it remarks.
But the social contract bears no signature because it is contracted in the name of no one in particular and everyone in general. In his very precise terms, Rousseau defines an instrument that at one and the same time abolishes and reinvents the signature or, if you will, that replaces an illegitimate appropriation by force with a legitimate ownership by right. “The peculiar fact about this alienation is that, in taking over the goods of individuals, the community, so far from despoiling them, only assures them legitimate possession, and changes usurpation into a true right and enjoyment into proprietorship” (180; 3: 367). Before the social contract is signed, the proper name could only be the mark of a desire to subsume something or someone to the bearer of the name. After the social contract, the name’s right to signify ownership is guaranteed; it is given its properness but only by convention and constriction. This is to say that the condition of “having” a name is not having it but receiving it from somewhere else. One can put one’s name on one’s property because the name is not anyone’s property. Between these two versions of the name, between illegitimacy and legitimacy, the name imposing itself and receiving itself, the contract takes place in the absence of any name, in the name of the proper name in general or the idea of the proper name: the Sovereign. In the Sovereign, the concept of a generality would coincide at last with the desire to have power over that generality, which is to say over itself over which there is, by definition, no higher will that can give it the law. “It is consequently against the nature of the body politic for the Sovereign to impose on itself a law it cannot infringe… . The Sovereign, by the simple fact that it is, is always all that it must be [Le Souverain, par cela seul qu’il est, est toujours tout ce qu’il doit être]” (176–77; 3:362–63).10 By the simple fact that it is (but is it? and where is it?), the Sovereign is always all that it must be. And what it must be is all, tout. The least subtraction from the totality or limitation of its power and the whole idea of Sovereignty collapses. The Sovereign, then, cannot and need not sign any contract because a signature contracts. Subjects subscribe to the Sovereign, which subscribes to no one:
Sovereign power need give no guarantee [garant] to its subjects, because it is impossible for the body to wish to hurt all its members … it cannot hurt any one in particular. … This, however, is not the case with the relation of the subjects to the Sovereign, which, despite the common interests, would have no security that they would fulfill their undertakings [engagements] unless it found means to assure itself of their fidelity.
The engagement between two parties in which only one of them signs, or rather in which everyone signs, on the one hand, and no one signs, on the other, reverses precisely the illegitimate terms of the slavery contract in which one signs for everyone:
It will always be equally foolish for a man to say to a man or to a people: “I make with you a convention wholly at your expense and wholly to my advantage; I shall keep it as long as I like, and you will keep it as long as I like. (172; 3:358)
The senseless discourse establishing the right of slavery is, writes Rousseau, “null and void, not only as being illegitimate, but also because it is absurd and meaningless [parce qu’il ne signifie rien].” The denial of any meaning essentially voids the convention pronounced by an “I” subject with a “you” object who is manifestly nothing other than an instrument for “I’s” pleasure. If there is to be a coming together in a convention of meaning, “I” and “you” cannot be subsumed into only an “I.” By itself, in other words, “I” makes no sense. There is no meaning, no contract without the more-than-one of an “I/you” articulated by their difference. As the inversion and negation of the social contract, the senseless convention of slavery is separated from the meaningful convention only so long as the Sovereign never says “I.”11
Rousseau, on the other hand, both signs and says “je.” We are asking about the place of this particular signature in the general structure of nonsigning sovereignty. What, for example, is one to make of the place of a certain “Je veux…” immediately following the avertissement in the opening clause of Of the Social Contract, which reads: “Je veux chercher si dans l’ordre civil il peut y avoir quelque règie d’administration légitime et sûre” (I mean to inquire if, in the civil order, there can be any sure and legitimate rule of administration) (165; 3:351). Everything that is to follow follows from this “je veux,” which we will not rush to pin on Rousseau in particular, even if that reference is implied a few lines later in one of the rare autobiographical remarks to be found in the text.12 Rather, we take this “je veux” to be the necessary position from which Du contrat social is forced to set out in order to arrive at the terms of the social contract, terms that “although they have perhaps never been formally set forth [énoncés]… are everywhere the same and everywhere tacitly admitted and recognized” (174; 3:360; italics added). The “Je veux chercher … quelque regie” of the incipit establishes the text’s governing rule to be the explicitation of the tacit rule. Its explicitation—that is, its framing by the terms of a text.13 But how can the tacitly or silently recognized rule be made explicit by a “je veux” that breaks the silence and thus breaks the rule that imposes silence on the “je”? It is this double exigency that situates the “je” on the enigmatic edge of Of the Social Contract, an edge that does not so much wrap around the work as traverse it from end to end, as we shall see.
The incipient “je veux” has an uneasy balancing act to perform. Where it stands, the ground that supports the rectitude of its volonté has to be carefully posed. This placement takes place along yet another fringe, which this time is internal to the work because it extends between the heading “Book I” and its first subheading, “Chapter 1.” The “je veux” in fact inaugurates three paragraphs that are within the book but outside any of its subdivisions. It is here that “je” responds to a question about its place in a treatise on politics: “I enter upon my task without proving the importance of the subject. I shall be asked if I am a prince or a legislator, to write on politics. I answer that I am neither, and that is why I do so. If I were a prince or a legislator, I should not waste time in saying what wants doing; I should do it, or hold my peace [je le ferais, ou je me tairais]” (165; 3:351). These lines distinguish a writing on politics from a doing of politics and imply even that the two activities are mutually exclusive. If one writes on politics, it is because one is in no position to do politics, and if one can do politics one does not waste one’s time talking and writing about how to do it. According to this schema, the political text would even be generated by a powerlessness to do what it says, since doing and saying exclude each other. Yet this structure is made to tremble in its final position, in the punchline: “je le ferais, ou je me tairais.” If writing on politics and political action excluded each other, then one could also reasonably expect to find a conjunctive “and” here rather than an alternative “or”: I would do it and I would be silent. Instead, the phrase as it reads implies that “doing” politics is an alternative to being silent, and thus puts politics in a category that includes rather than excludes speaking, saying, writing.
It may therefore be naive to assume that the force of the text’s incipient “je veux” is contained within some purely definitional limits of a “je veux dire,” I mean or I mean to say. What is more, it may be precisely because saying and doing cannot be definitively dissociated or predictably associated that there are politics and political texts.14 But the very least one can say is that the distinction that identifies the “I” writing on politics with a “saying” rather than a “doing” shows itself to be less than totally reliable.
The State of the Signature
In the next paragraph of the section we are examining, more solid ground is placed under the feet of “je,” who claims the birthright of the “citizen of a free State and member of the Sovereign.” One is reminded that Rousseau’s signature on this text carries the apposition “Citizen of Geneva,” and that here, as elsewhere, he signs with the name of a political, geographical state. “Je,” then, is also “Geneva” according to a metonymy of place.
There would have been, of course, another reason that Jean-Jacques Rousseau signed Du contrat social as a citizen of Geneva. Rousseau published this text, like most of his previous ones, in Amsterdam. The principal aim in doing so was to protect his work from certain strictures of the French jurisdiction. It therefore could not hurt to remind the Parisian authorities, on the title page of this text, that not just the work but its author, a foreign national living in France, was not strictly subject to French laws. It is often forgotten that it was not France but—ironically—Holland and Geneva that banned Du contrat social.15 French authorities banned only Emile, but then they also pursued its author with an arrest order (une prise de corps), thereby thoroughly undermining the notion that Rousseau’s citizenship could offer any protection from the overzealous watchdogs of public order. The circumstances of the banning of Emile and of Du contrat social are at the very least reminders that the politics of the signature in the 1760s were bound up with the situation of nation-states that did not often respect one another’s borders.
Rousseau underscores the irony of these circumstances in his polemical Letter to Christophe de Beaumont. (The latter was the general prosecutor and archbishop of Paris who had written the order condemning Emile and its author.)
A citizen of Geneva gets a book printed in Holland, and by a decree of the Parliament of Paris, this book is burned without any respect shown to the sovereign whose privilege it had obtained. A Protestant proposes, in a Protestant country, certain objections against the Church of Rome, and he is condemned by the Parliament of Paris. A republican makes objections, in a republican state, against monarchy, and he is condemned by the Parliament of Paris. It seems the Parliament of Paris has strange notions of its jurisdiction, believing itself to be the legitimate judge of the whole human race.16
What is more, continues Rousseau, these measures were taken against him merely because his name appeared on the title page of the offending book.
The same parliament, ever so remarkably circumspect in their proceedings when individuals of their own nation are concerned, neglect them all in passing sentence on a poor foreigner. Without knowing whether this foreigner was really the author of the book imputed to him, whether he acknowledged it, or caused it to be printed … they began their process by ordering him to be clapped in prison [on commence par le décréter de prise de corps). … I know not how far such proceedings may be consistent with the law of nations [le droit des gens); but I know very well that where they are carried on, a man’s liberty, and perhaps his life, is at the mercy of the first printer who chooses to set that man’s name to a book. (240; 4:930)
The point about verifying authorship might seem to be too fine.17 Rousseau, however, is not just splitting hairs about the legal status of a signature. His argument against the procedures of those who decreed his arrest on the basis of a signature is amply motivated by two kinds of considerations.
First, there is the status of a signed fiction. Beaumont and his colleagues took no account of the fact that the “Profession de foi du Vicaire Savoyard,” which was the principal target of their attack on Emile, was represented as the reported speech of an unnamed person.18 In a fragment not included in the letter, Rousseau reflects on the implications of this confusion:
What a large door one would be opening to violence and persecution if one could impute to the author in an equal fashion all the assertions he makes in his own name and all those he puts in the mouths of others. It would follow that every time he sets up contradictory discussions, one could impute both the pro and the con to him, especially when the question is not clear enough to allow for an irrefutable solution. One would be free to charge him with whichever of the two opinions would render him guilty and then, on the pretext that he did not combat the guilty opinion forcefully enough, maintain that it is the one he secretly favors. (4:1029)
He then cites examples of criticisms leveled at the author of Julie, a text that presents itself as a collection of private letters in which Rousseau would have had the role only of editor.19 But the same point could be made about any text as soon as one recognizes that there can be no certainty about the relation between intention and text. An author may disavow the opinions he or she nevertheless represents, or intend them ironically or satirically, or be unable himself or herself to affirm one intention to the exclusion of another, which is clearly the most troubling possibility for a law that has to suppose an immanence of intentionality to itself as represented by a signature. The issue of censorship is always finally about the disjunction of intentions and utterances, as Plato thoroughly understood when in the Phaedrus he condemned writing for its inability to answer any questions put to it about its meaning.20
Rousseau, it is clear, just as thoroughly grasped the implications of the absence of the author from the text.21 He complains repeatedly, both in the Letter to Christophe de Beaumont and in his Letters Written from the Mountains (which addressed the censoring agencies in Geneva), about the rampant assumptions made as to the intentions of the author of Emile and Du contrat social. That both the French and Genevan authorities moved against the author and not just the works, censoring or banning both l’oeuvre et l’homme, the work and the man, was possible only because in each case an unrestrained procès d’intention was under way. As one result, Rousseau would spend the remaining sixteen years of his life denying his authorship of any crime and trying to explain (and first of all to understand) in confessional or otherwise self-reflexive writings the meaning of his signature on his published work—as if the autobiographical signature were any less a mark of absent intention.22
On Literary Property
Authorial intentionality and the signature were (and remain) matters that positive law must seek to determine in order to give some semblance of regulating the reproduction and circulation of ideas. In France, these laws have been written with reference to the notion of “literary property.” The notion is, of course, fraught with irresolvable contradiction, but at no time, perhaps, was that contradiction more acutely in evidence than between 1723 and 1778, the dates of two important revisions to French law governing the publishing trades. Before proceeding any further to survey the state of the signature on Du contrat social, let us pause to examine the properness of the concept of “property” which both attaches to a signature and also necessarily detaches it from its proper “owner.”
The debate about propriété littéraire in France should be understood in a context of the censorship deemed necessary to an absolute ruling monarch.23 The point may be obvious but still bears restating that censorship must aim to suppress not ideas “as such” but their reproduction and dissemination. This distinction was enacted under the ancien regime in the indirect regulation of an author’s activity through the regulations directed at publishers. The system of permissions and privileges which evolved in France between roughly 1507 (the date of the first known privilege) and 1791 (the date at which the revolution abolished and revoked all privileges) codified restrictions and responsibilities for the publisher and concerned itself less with the author. Most important, privileges were issued to publishers and only very rarely to authors themselves. Even when a privilège was registered in an author’s name, the author was expressly forbidden to print and publish his own manuscript. He was thus obliged to contract for publication with a duly recognized member of the publishing corporation, called the Communauté. It is at this point that the interests of censorship meet up with the corporate interests of publishers. The privilege was not in fact an instrument of censorship (that function was reserved to the permission d’imprimer) but a protection for the publisher against counterfeiting. It granted exclusive publication rights over a period varying between two and ten years, and could be renewed in most cases. Both the state and the corporation had an interest in controlling the unauthorized reproduction of works. The author did as well, of course, but for most of the period with which we are concerned the only legal avenue for his or her interest was through its identification with the rights of the privilégié, that is, the publisher. The author’s rights and interests were in effect eclipsed by this identification. Between 1723 and 1778, the concept of “literary property” was debated as a means to correct this apparent oversight.
The debate concerned the transfer of an author’s property—the work—to an agent, who bought the right to print and diffuse it. The problem was that this transfer and transformation left a residue that could not easily be disposed of—the residue that is marked, precisely, by the signature. Once it was sold to a publisher, the work did not fully become his property in the way that the transfer of a title to real estate abrogates all the former owner’s rights over that land. Undeniably, something of an author’s relation to his “property” remains even after its transfer, its reproduction, and its diffusion. Defining this relation and with it the rights that could or should be protected by positive law would be the affair of that debate which, while it may have reached certain conclusions in eighteenth-century France, has hardly been ended in any definitive sense. That is, both current literary theory (or “antitheory”) and the current state of positive law concerning such issues as pornography, video reproduction, computerized “creation,” and so forth are evidence that no definition of the signature has yet resolved these questions.24
The analogy to property law suggests itself because the author is held to be, as one commentator has put it, “owner of the manuscript he has created, but owner to the greatest degree possible, to such an ‘intense’ degree … that one finds perhaps no other examples of such a reality of right, since this right originates in the very person who exercises it: the writer has created the work.”25 As this description makes plain, the analogy to property and property ownership tends to uncover the assumption that the only indisputable right to assert ownership lies in the relation expressed by a phrase such as “the writer has created the work.” By comparison, the right over real estate would have to appear arbitrary, ungrounded as it is “in the very person who exercises it” and who in this case is dependent on a state to legitimize (or at least defend) ownership.26 Yet it is precisely this understanding of the work as property in a seemingly proper, unalienated sense which would have to get lost in the necessary transfer between that sense and the ordinary sense of ownership of goods and commodities, which is the only sense in which a publisher can be said to own the work he purchases from an author.
Publishers, particularly those in Paris, sought to enforce the analogy with property. Their argument was that by selling a manuscript, the author sold as well all rights of ownership, including—most important for the publisher’s interests—its perpetuity or inalienability. The Communauté, in effect, sought to obtain a guarantee of perpetual privilege for works that were not already in the public domain. In fact, the Paris community of publishers sought to enforce their virtual monopoly on new works and to limit the scope of the public domain over against the demand of provincial publishers for stricter limits on the length and renewals of privileges. It was also argued, somewhat inconsistently, that only such a system of perpetual privilege could protect the author’s interests.27 There was thus a recognition that, after alienating or selling all rights, an author retained some interest in the future of the work bearing his or her signature. The analogy to property here met one of its limits which even the most extreme partisans of the perpetuity argument could not get around except by insisting on the identity of the interests of author and publisher. As we shall see later, an opponent of privileges and proponent of the free book market, Malesherbes, could be just as eager to understand the author’s interests as identical with the publisher’s.28
The argument over literary property points to a basic hesitation in the law between authorship of a work and ownership of a commodity. While in the matter of literary or artistic “property,” the latter could not exist without the former, the two have strictly speaking nothing essential in common, nothing that could allow the one to replace or entirely subsume the other. The “elusive nature of copyright”29 is tied to the elusive nature of a work that supports only with considerable difficulty the analogy to property. Nevertheless, even in its latest revisions, French law continues to use the classification propriété littéraire et artistique even as it concedes the insufficiency or inappropriateness of the term:
While the idea of property seems sufficient to explain the nature of the author’s patrimonial rights, while the term “incorporeal property” was indeed used by the framers of the 1957 law (art. I) [date of the last major revision of French copyright law], the notion does not seem to be able to account for a moral right insofar as it is inalienable and imprescriptible.
The author’s moral right is in reality a right of personality [droit de la personnalité]: because the work is the emanation of this personality, it generates not only a property but also an extrapatrimonial right which has all the attributes of rights of personality. The juridical nature of the author’s right is thus hybrid: a right of property as concerns patrimonial rights; a right of personality as concerns the moral right.30
This is what is known as the dualist conception of the author’s rights. It consecrates the contradiction that fomented the eighteenth-century debate and remains essentially within that contradiction. The jurist’s gloss on the two types of rights distinguishes between what is detachable and what remains attached. "As opposed to pecuniary rights which tend to become detached, the moral right is attached to the author just as the glow is to phosphorus.”31 The analogy here to a physical rather than a marketable property reinforces the idea of the inalienability of “the right of personality.” Notice that the analogy attempts to naturalize the law and to reattach the necessary detachability of the symbolic relation. Yet it belies at the same time the elusiveness of the very quality of “attachment” that the analogy can name only metaphorically, in the form, that is, of a detachment. The legal theorist, in other words, must endeavor to explain how a “right of personality” offers protection according to a supposition of indetachability which continues to elude the very language that would name that right in its proper sense.
This consideration of propriété littéraire and droit d’auteur allows us to isolate several senses in which signature is functioning for the law. Under a censorship regime (and all states exercise censorship to some degree and in some form), the signature on a book or commodity is made to function as the proper name of the subject who can be held accountable for whatever effects the law deems dangerous to its own order. Under the liberal regime of the marketplace, the signature designates a property owner to whom certain benefits accrue. As part of a text, however, whose regime is precisely not that of property or ownership, the signature detaches from the function of proper name, or rather joins that function to the other textual function of producing meaning without strictly determinable intentions. This textualization of names, which is precisely their detachability, is what the law disguises beneath the notion of an inalienable “droit de la personnalité.” The problem for any law assigning the responsibility of signatures is that its application to the domain of property cannot depend simply on the seemingly untroubled functioning of the proper name. (If it could, then how would one explain the proliferation of laws protecting authors’ rights?) Because names become textualized, however, signatures demand first to be read before any law can assign their meaning, whereas it is precisely the possibility of assigning a certain meaning or intention which reading puts in question.
This problem has its source in what might be called the pseudoanonymous regime of the text’s signature. Between the law of the proper name and the space of reading, the author designated by the signature is “there as anonymous party.” The author is positioned by a certain effaceability of his/her name with regard to the text it signs. The difference between the designated author and his/her effacement in the mode of an “as if” is the difference, once again, between the book as commodity or legal entity and the work as nonproperty. That is why Rousseau is able to expose the error that arises when this effaceability is forgotten by proposing to consider the intentions of a book’s publisher. The passage occurs in the fragment on proceedings against writers from which we have already quoted:
As regards the text, the author is there as anonymous party [l’au-teur est là comme anonyme], even though the public may presume that this author is the author of the book; but if such presumption sufficed in court to condemn a man in a free country, then where would liberty and justice have gone?
I am not saying that one may print with impunity any bad book provided that one is not the author; I am saying that while the publisher may be held responsible for the evil caused by the opinions he publishes, one cannot nevertheless impute those opinions to the publisher himself unless he has expressly adopted them. From this there follows an essential difference in procedure. (4:1029)
Clearly, the idea of imputing to the publisher himself the opinions he publishes is beyond the presumptions of even the archbishop of Paris. The point is that the author, like the publisher, is not author of everything published under his name, which must efface itself in order to permit the text’s deployment. Rousseau’s argument exploits the inadequacy in the legal definition of literary “property” which recognized a publisher’s “ownership” with more consistency than an author’s “authorship.” Rousseau puts in question the very concept of literary “property” or ownership as empty of any meaning except that of the commodity when he draws a wholly unacceptable consequence from its premise: if the work is a “property,” then it returns to its owner, that is, the publisher; and if it cannot return to its owner, it is because it returns properly to no one.32
Whatever tenuous order the notion of “literary property” managed to maintain within the debate that was ongoing in France, its pertinence was wholly beside the point with regard to the more or less unregulated book trade across national borders, a trade that resembled more often piracy. There were no international conventions governing the reprinting in one country of works originally published in another. “Counterfeit” French editions of books published, for example, in Amsterdam (where the press was accorded more freedom than in France) were common and their sale was uninhibited.
In 1754, Rousseau began dealing with Marc-Michel Rey, a Genevan publisher established in Amsterdam, for the publication of the Discours sur l’inégalité. The two were close collaborators by 1760, the year Rey undertook the considerable task and risk of publishing Julie. The risk was that a Parisian publisher would offer for sale a counterfeit reprint of the work before the original edition (or the part of it authorized to be imported into France) could be sold out. At the end of October 1760, the books were ready for shipment. Rousseau sent one of his advance copies to Malesherbes, who was directeur de la librairie (responsible for the issuance of privileges, the administration of censorship, etc.), along with the not-so-subtle request that “this collection not leave your hands until it has been published. By then I am sure that its success will not tempt any one to counterfeit it and even more sure that you will not permit it.”33 Malesherbes understood the hint and replied that, on the contrary, he considered “counterfeit” editions entirely normal, and he replied to Rousseau to this effect:
As for the counterfeiting that you seem to fear, I disagree with you over the principles that rule in this matter. No country prohibits the counterfeiting of a book printed in another country. There are two completely different interests [deux intérêts tout différents] to be considered: that of the publisher and that of the author. The publisher’s interest cannot provide any reason to prohibit the reprinting in France of books printed in Holland unless it were also prohibited in Holland to print books that have already appeared in France. And for that to happen there would have to be some kind of treaty among nations [Il faudrait qu’il y eût pour cela une espèce de traité entre les puissances]. Not only is there no such treaty, but foreigners and specifically the Dutch reprint everything that appears in France; it would thus be absurd for France to have any scruples about using reprisals.
Notice that Malesherbes, a free-market liberal, first distinguishes “two completely different interests,” the publisher’s and the author’s, and then proceeds to deny that the publisher’s interest can be taken into account given the state of generalized book piracy among nations. He next acknowledges the author’s interest to be finally indistinguishable from the publisher’s, thereby confirming inadvertently the contradiction we have already remarked:
As for the author’s interest, it is only right that in every country in the world an author receives every advantage possible from his work; and that is why he is given the privilege for his work, or, what amounts to the same thing, the privilege is given to the publisher [ou ce qui paraît être la même chose, on donne ce privilège au libraire] that he chooses and designates.34 (Italics added)
This letter concludes with the advice that Rousseau should choose a publisher in Paris and sell him the rights to the “counterfeit” edition of Julie.
In his response to this letter, Rousseau protests that such an arrangement is unethical since he would be selling the same rights twice over and, in effect, stealing future revenue from Rey’s pocket. No doubt such a protest would have been considered at best naive, at worst disingenuous. And indeed, Rousseau finally did (with Rey’s consent) resell the rights to Julie to the Parisian publisher Robin. The latter’s edition was severely expurgated (of some hundred pages) by French censorship at Mal-esherbes’s instigation and over Rousseau’s objection.35 The disfiguring of this text was one of Rousseau’s bitterest experiences before the 1762 banning and public mutilation of Emile. It must be read as contributing to the context of the “mad” declaration made in 1774 disavowing reprints of his works. It is also echoed in the warning addressed to Christophe de Beaumont that where such procedures are permitted, “a man’s liberty, and perhaps his life, is at the mercy of the first printer who chooses to set his name to a book.”36
But Rousseau’s reply to Malesherbes has a place in our discussion of the “state” of the signature for another reason. His letter inscribes authors’ rights and publishers’ rights in the context of international political economy. In so doing, he replies to Malesherbes’s observation that “there would have to be some kind of treaty among nations” and to the blind assumption that, in the absence of such a treaty, a kind of unregulated parity was de facto the case. The letter nails Malesherbes’s complacent acceptance of a state of affairs that, Rousseau argues, not only benefits the French book trade at the expense of its neighbors but shores up a system of arbitrary repression by allowing it to hide from its internal contradictions. Our lengthy quotations from this letter will allow us finally to return to Du contrat social and to a similar inscription within its borders of international affairs.
It is with the notion of droit des gens or law of nations37 that Rousseau introduces his reflections:
I will first remark that, on the subject of le droit des gens, there are many unrefuted maxims that nevertheless will always be vain and without effect in practice because they presume an equality between nations as well as between men. As concerns the first, this principle is wrong with regard to both their size and their form, and it is thus also wrong as concerns the relative right of the subjects that derive from one and the other … le droit des gens, which depends on the statutes of human institutions that have no absolute term, varies and must vary from nation to nation. Large nations impose on smaller ones and exact their respect; at the same time, they need the smaller states and need them more than the smaller states need the larger ones. They therefore must give up something equivalent to what they demand. Considered in detail, advantages are not equal, but they cancel each other out. This is the origin of the true droit des gens, established not in books [non dans les livres] but among men. Some nations have honor, rank, power; others have ignoble profit and petty utility.38
The “true droit des gens,” the one that is not to be found in books because it varies from one nation to the next, is an unequal exchange of “advantages.” As concerns book trade between two such unequal partners, Rousseau predicts that only an internal change in one or the other system of government could permit the establishment of a uniform policy regulating their exchange:
The freedom of the press established in Holland requires rules for the policing of the book trade which differ from those that apply in France, where such liberty does not and cannot occur. Even if one wished, by means of treaties between states, to establish uniform policing and the same regulations in this matter between the two states, either these treaties would soon be without effect or one of the two governments would change form, given that in every country the only laws that are observed are those that derive from the nature of the government.
Once again, the droit des gens is described as limited to useless treaties, good on paper but without effect in practice. Rousseau traces the impracticability of an international treaty in this matter to the arbitrary power of a censorship policy that tolerates too easily its own contradiction when the result is to its advantage.
Book sales are enormous in France, almost as great as in the rest of Europe altogether. In Holland, the book trade is almost nil. On the other hand, proportionally more books are printed in Holland than in France. Thus one could say that, in a certain sense, consumption is in France, fabrication is in Holland … that where the Frenchman is a consumer, the Dutchman is but a factory hand [facteur].… Such is the relative state of this part of commerce between the two powers; and this state, imposed by the two constitutions, will always recur no matter what one does. I well understand that the French Government would like to see fabrication occur in the same place as consumption: but this is not possible, and it is the government itself that prevents it by the rigors of censorship.
According to one of the French Government’s maxims, there are many things that cannot be permitted but that it is all right to tolerate. From this it follows that one can and must tolerate the importation of a certain book whose printing must not be tolerated… . However, when a book is printed in Holland because it could not and should not be printed in France and then is reprinted in France, the Government goes against its own maxims and acts in contradiction with itself. I would add that the idea of parity that authorizes this contradiction [and here Rousseau is responding directly to Malesherbes’s assumption that France and Holland steal equally from each other] is illusory, and the consequence it draws from that notion, although correct, is not equitable. Since both France and Holland print for consumption in France, and since counterfeit editions of French works are not permitted entry into the [French] Realm, the reprinting in Holland of a book printed in France does little harm to the French publisher, whereas the reprinting done in France of a book printed in Holland ruins the Dutch publisher.
Recall that this letter is dated 1760—before the crisis of Emile and the prise de corps. Rousseau thus had already acquired a clear understanding of the principal limitation on any constitution of political rights beyond national borders, given the fundamental inequality, or difference, between national entities. Indeed, Malesherbes even suggests in his reply that Rousseau should treat the subject at greater length: “the observation you make as to the reciprocal advantages of large and small states is the basis of a very profound work. … But this subject cannot be treated in letters. Moreover, I have only a glimpse of such great theories. It would be up to a man of your stature to look into them more deeply.”39 Instead, Rousseau writes Du contrat social, which, as we shall see, stops short of any contractual definition of international relations. In fact, it gets arrested at the border. Yet the exchange with Malesherbes on the question of international book trade already analyzes why the contract cannot be extended over the border. But that is not all: from that border, a contradiction can be glimpsed within the sovereign nation—the contradiction of a sovereignty that “by the simple fact that it is, is always all that it must be,” a sovereignty that governs by the fiction of its totality, as if it had no borders with difference. This is the fiction as well, then, of Du contrat social. But it can seem to stand up and stand alone only until one reaches its farthest edge.
Concluding the Contract
The final chapter of the final book of Du contrat social bears the title “Conclusion.” Here the text comes to an end, but whether it can be concluded that Du contrat social has been closed (as one says of a contract after both parties have signed) is not at all clear.
Après avoir posé les vrais principes du droit politique et tâché de fonder l’Etat sur sa base, il resterait à l’appuyer par ses relations externes; ce qui comprendrait le droit des gens, le commerce, le droit de la guerre et les conquêtes, le droit public, les ligues, les négociations, les traités etc. Mais tout cela forme un nouvel objet trop vaste pour ma courte vue; j’aurais dû la fixer toujours plus pres de moi.
(Now that I have laid down the true principles of political right and tried to give the State a basis of its own to rest on, I ought next to strengthen it by its external relations, which would include the law of nations, commerce, the right of war and conquest, public right, leagues, negotiations, treaties, etc. But all this forms a new subject that is far too vast for my limited view. I ought throughout to have fixed it closer to me.)
Three closures converge in the end: the state, enclosed within the perimeter of its borders with other states; the “moi” whose view can be extended only as far as this perimeter; and the text at whose perimeter the coincidence of the other two comes to be remarked. State, self, text: all are here brought to the brink where some external relation would have to be posed if one were to go any farther; all withdraw back into an interior but only after it has been remarked that the rest remains. The border is drawn by this gesture of taking one step over the limit and then withdrawing. The border is not reached until it is breached. The conclusion is thus double-edged, so to speak: the last chapter of the work that has been put in place—the state grounded on its basis—would also be the first chapter of a work that can have no single ground, whose basis is not a positive ground (or a territory) but a relation of forces between, for example, smaller and larger powers. It is a border as well then between, on the one hand, that which can be thought of as having borders and as being contained or defined by them and, on the other hand, a relational field of differences where borders are crossed, transgressed, redivided.
This other fringe, at the other end of the text, extends beyond the work’s fabric and repeats the pattern put in place by the phrase from the avertissement: “Le reste n’est déjà plus.” The conclusion of Du contrat social is double-edged because in order to say it excludes external relations, it must overstep its own limits and include the exclusion it excludes, much as “there remain no remains” says more than it means to say. A note by the editor, Robert Derathé, suggests that the usual means of dealing with this troublesome ambiguity of the “Conclusion,” its included exclusion, has been to redraw the text’s borders—to exclude, in other words, its last chapter. “Historians have given so little attention to this concluding chapter that it is common to call the last chapter of the Contrat social the preceding one on civil religion” (1507, n. 1). This omission follows more or less the same logic that severs a particle from the title of the text so as to insert it in a referential syntax. Like the “Du” of the title, the last chapter is the mark of a textuality that a stable system of reference must ignore or leave out, just as the theory of a stable national government will have to ignore the extraterritorial grounds or “appuis” of the state’s existence: its interstate commerce, its internationality, which is also to say its intertextuality.
The extra mark, however, may also be ignored if one resets the textual boundary on the far side of the “Conclusion,” rather than on its near side. Derathé, in effect, proposes the latter solution as a corrective to the contrary tendency. “It is in this chapter, however, that Rousseau summarizes the second part of the Institutions politiques, in which the State would have been studied in its external relations, the first part having been consecrated to the State or the principles of political right” (3:1507, n. 1). Yet, whether one disregards a part of the text that is there or projects a part of the text that is not there, one is still in flight from the same ghostly presence. Its exorcism seems to require either a withdrawal inward or an expansion outward if one is to settle finally on some sense of the thing that keeps turning itself inside out.
Fixing attention on the “Conclusion,” without looking elsewhere for a more resolute form in which to contain it, one finds that this ghostliness insists and insists all the more as one approaches the last word before the end, the word “moi.” And thus it is finally, in the end, the most familiar that has become the most strange.
As in the avertissement, where a lack of strength or “forces” is said to cut short the work, the last lines of the “Conclusion” invoke a physical limit that has forced the text into a partial or incomplete form. Because all that would remain to be considered about the state’s external relations “forms a new subject far too vast for my limited view,” I can look no further and have had to stop here. This is the meaning that is implied, but it is not quite what is said in the final sentence: “J’aurais dû fixer [ma vue] toujours plus pres de moi,” not “I have had to,” but rather I should have, I ought to have fixed my sights ever closer to myself. The past conditional inflection (the tense of regret or remorse) cannot altogether be made to fit the notion of a forced constriction because it says that I should have kept my sights fixed closer than I have done in fact. I have already gone beyond the limits I should have remained within, the limits of the “moi.” The strangeness or ghostliness would reside in the inexplicable distance from which “je” looks back, regretfully, on the “plus près de moi” without being able to explain how it has been led so far away from itself. Rather than a restriction that would have been imposed by the “moi’s” limitation, this final phrase intimates that “je” has been carried outside its own limits, the “près-de-moi” or the proper, into some faraway region that cannot be brought under the self’s purview. It is as if, by its final words, “je” were admitting that at some point it had lost sight of itself, become a stranger.
At some point, but where? At what point did “je” step out of the circle “pres de moi”? One possible answer is close at hand: at the immediately preceding point where the state’s external relations are envisaged as the support—the appui—that remains to be put in place. “I should have kept my sights fixed closer to me” would thus mean: I should never have even glanced at “all this,” I should never have opened the question in this “Conclusion.” I should have drawn the line “plus pres de moi” and observed the limit imposed by my myopia. This reading fits with what we have said about the “Conclusion’s” double gesture of overstepping and then withdrawing from a border. It would also explain why readers have generally found it so easy to ignore this chapter, as if it were already half erased and partially withdrawn.
But such a reading also functions as a kind of protective railing because it supposes that the edge is overstepped only at the last by the final step, which it would suffice to withhold in order to remain within a safe radius close to home. What is being guarded against, perhaps, is the full realization here at the end, after the fact, that from its very first step, from the moment “je” opens its eyes and says “Je veux chercher …,” it has left “moi” behind and is already in the mode of an estrangement that could be “toujours plus pres,” always closer. The question of external relations which seems to arise only at the end would in fact have been deferred from the outset; its definitive adjournment would be but the culmination of an initial deferral. The break that occurs here, instead of closing the state at its border, projects back from the edge and reopens the question of relations to and within difference which has been put off until it can be abandoned. The whole fabric of Du contrat social thus unravels from its far edge, returning to this side of the first step into the shadowy region of external relations, political institutions, the back and forth movement of their texts. The first step, that is to say a certain desire, a certain “Je veux …”
Du contrat social would have taken place between the initial “je” and the final “moi,” a contract passed, therefore, between "I” and “me.” Unlike the Sovereign, however, which passes a contract with itself and therefore does not need to sign, there where the contract breaks off and breaks down along its raveled edge, Rousseau signs or attempts to sign. But how can “I” sign in estrangement from “myself”? Or rather is not the signature the first and thus the strangest mark of that estrangement—at once closest to me and yet already without any common measure, “so near and yet so far”? My signature is a ghostly trace of my absence, a reminder not only of the limits on “mes forces” or “ma vue” but of the finitude that is “me.” I sign, therefore, by withdrawing the signature: “J’aurais dû la garder toujours plus près de moi.”40
There is, in effect, a postscript to the “Conclusion” of Du contrat social, a passage in the Confessions where Rousseau mentions his abandoned Institutions politiques.
Of the different works which I had on the stocks, the one I had long had in my head, at which I worked with the greatest inclination, to which I wished to devote myself all my life, and which, in my own opinion, was to set the seal upon my reputation [et qui devait selon moi mettre le sceau à ma réputation] was my Institutions politiques. … What kind of government is best adapted to produce the most virtuous, the most enlightened, the wisest, and, in short, the best people … I thought that I perceived that this question was very closely connected with another, very nearly although not quite the same. What is the government which, from its nature, always keeps closest to the law [toujours le plus près de la loi]? This leads to the question, What is the Law? and to a series of questions equally important. I saw that all this led me on to great truths conducive to the happiness of the human race, above all to that of my country, in which I had not found, in the journey I had just made thither, sufficiently clear or correct notions of liberty and laws to satisfy me; and I believed that this indirect method of communicating them was the best suited to spare the pride of those it concerned, and to secure my own forgiveness for having been able to see a little further than themselves [d’avoir pu voir là-dessus un peu plus loin qu’eux]. (417–18; 1:404–5)
There are several echoes—or ghostly reminders—of the final lines of Du contrat social: “toujours le plus pres de la loi” echoes “toujours plus pres de moi,” but also a certain nearsightedness is contrasted with the farsightedness mentioned in the final lines. And that is not all. Rousseau refers to his unwritten Institutions politiques as the work “qui devait selon moi mettre le sceau à ma réputation”—which would, that is, authenticate and confirm his reputation: seal it and sign it. The work that could never be finished is the one whose extension beyond the limited part would have required leaving home, crossing the borders of a “moi,” entering into an estrangement from oneself. There, from the place of strangeness, Rousseau could have sealed his name. Instead, there is the unsealed signature “Rousseau,” which we must recognize in its fugitive trait as it withdraws from the border with the other.
1See Oeuvres complètes, 3:1431, n. 1, for other references to the “traité du contrat social” in the correspondence.
2De Man, “Promises,” in Allegories of Reading (New Haven, Conn., 1979].
3There are references to this dialogue in bk. II, chaps. 7 and 8, and bk. Ill, chap. 6, as well as in the “Manuscrit de Geneve,” bk. I, chap. 5.
4Trans. A. E. Taylor (New York, 1971), 308 D-E, 339–40.
5Trans. G. D. H. Cole (London, 1973), 164. Further references to this translation are included in parentheses in the text.
6To be sure, one cannot produce evidence that Rousseau did not destroy something of this larger work that he several times refers to as Institutions politiques. Such an action would, however, have gone counter to his habits, which tended toward an accumulation and conservation of the least fragment. What is more, a number of fragments concerning political institutions do survive and have been collected in the Oeuvres completes. Finally, there is as well the “Manuscrit de Genève,” the first version of Du contrat social. One of its most important sections, “De la société générate du genre humain,” was never integrated into the final version. On the question of destroyed manuscripts, see 3:1431, n. 3.
7Geoffrey Bennington has remarked that the aporia of performance of the contractual promise described by de Man (“Promises,” in Allegories of Reading) draws into it the very possibility of a signature. “The immediate effect of this aporia is to threaten any possible empirical ‘happiness’ of the performance of the contractual promise by splitting open the instant in which any such performance must be assumed to take place. De Man writes, ‘every promise assumes a date at which the promise is made and without which it would have no validity’ (273); but the aporia in the structure of the contract makes such dating (and its corollary, signing, not mentioned by de Man) strictly speaking impossible.” Sententiousness and the Novel: Laying Down the Law in Eighteenth-Century French Fiction (Cambridge, 1985), 161.
8Farther on in the same part of the text, one reads: “It is clear that the word genre humain creates in the mind only a purely collective idea that supposes no real union among the individuals who constitute it” (283).
9It is this motif of a lost original unity that comes apart under the deconstructive pressure of the supplement as applied in Of Grammatology; see in particular 229ff.
10See Bennington, 158–59, for a reading of this phrase as announcing a solution to the “problem of the undecidability of descriptive and prescriptive senses of the word ‘law.’”
11Paul de Man has shown why this constraint cannot be respected and how the “je” of the lawgiver must lend its voice to the mute sovereign (Allegories of Reading, 273–75).
12There has been no thorough census of the use of “je” in Du contrat social. The available concordance, by Michel Launay and Gunnar Von Proschwitz (Paris, 1977), unfortunately does not index this pronoun, which falls into their category of omitted “utilitarian words[!] of one or two letters” (25).
13In paleography, incipit and explicit designate the first and last words of manuscript parts.
14See de Man, Allegories of Reading, 277: “The redoubtable efficacy of the text is due to the rhetorical model of which it is a version. This model is a fact of language over which Rousseau himself has no control. Just as any other reader, Rousseau is bound to misread his text as a promise of political change. … To the extent that it is necessarily misleading, language just as necessarily conveys the promise of its own truth. This is also why textual allegories on this level of rhetorical complexity generate history.” Most attempts to account for Rousseau’s influence on the Revolution neglect this “rhetorical complexity” and its power to generate history. For this reason, Carol Blum, in Rousseau and the Republic of Virtue, for example, is forced to fall back on conjectures about patterns of psychological identification which remain thoroughly contingent.
15Both Emile and Du contrat social were condemned and publicly burned in Geneva on 18 June 1762; in Holland, where the privilege had been issued, the sale of Emile was banned on 29 June and that of Du contrat social on 20 July; in France, the condemnation of Emile would seem to have been possible because, although the title page named a publisher in Amsterdam, it was well known that the work had been clandestinely printed in Paris (see below, chap. 3). As for Du contrat social, which was printed in Amsterdam, the Parisian authorities were able only to prohibit its entry into the country. All of these measures, of course, only slowed somewhat the dissemination of both works. On these circumstances, see Marcel Françon, “La Condemnation de l’Emile,” Annales de la Société Jean-Jacques Rousseau 31 (1946–49). For an account of censorship in France during the period, see Nicole Herrmann-Mascard, La Censure des livres à Paris à la fin de l’Ancien Régime (1750–1789) (Paris, 1968).
16The Miscellaneous Works of Mr. J. J. Rousseau, vol. 3 (London, 1767; rpt. New York, 1972); the French text is in 4:929.
17In chapter 3 below, we discuss from a different angle this complaint that the Paris authorities neglected the formality of verifying whether Jean-facques Rousseau was indeed the author of the book titled Emile.
18At one point, when Beaumont does notice the fictional device, he gets it wrong and attributes a passage to the Vicar which was not, in fact, spoken by him. Rousseau points out his error, severely rebuking such negligent reading habits; see 4:948–49.
19We perhaps read this attribution too quickly if we take it to be “merely a fiction.” De Man radicalizes the doubt about the author’s authorship of such a text when he writes: “Taken literally, Rousseau’s assertion that he does not know whether he or his fictional characters wrote the letters that make up Julie makes little sense. The situation changes when we realize that R. is merely the metaphor for a textual property (readability). Further inferences then become apparent, for example that R. is similar to N. in his inability to read Julie and that it is impossible to distinguish between reader and author in terms of epistemological certainty” (Allegories of Reading, 203).
20“It always needs its father to attend to it, being quite unable to define itself or attend to its own needs” (275e).
21In another unused fragment of the letter, he even seems to imply an identification with Socrates’ fate at the hands of the state censors: “Ils ont crucifié mon maître et ils ont donné la ciguë à un homme qui valait mieux que moi” (They crucified my master and gave hemlock to a man more worthy than I) (1016).
22E. S. Burt, in her forthcoming book Rousseau’s Autobiographics, argues forcefully that this writing must always occupy an undecidable position between fiction and a truthful genre (history or philosophy) and that it has to overturn any attempt to fix the writer’s intention. I am particularly indebted here to Burt’s reading of Malesherbes’s Mémoires sur la librairie et la liberté de la presse, which uncovers the mechanisms of censorship’s inability to end the scandal of unassignable intentions.
23Historians of “literary property” do not always observe this condition; see, for example, Pierre Recht, Le Droit d’auteur, une nouvelle forme de propriété: Histoire et théorie (Gembloux, Belgium, 1969), 26–47. There is an enormous bibliography on the questions of literary property, copyright, droit d’auteur, etc. Francis J. Kase has selected and annotated part of it in Copyright Thought in Continental Europe: Its Development, Legal Theories and Philosophy (South Hackensack, N.J., 1967). In the introduction, he writes: “The history of the development of copyright thinking brought a variety of theories all of which attempted to explain the nature of copyright and determine its place in the legal system. These theories usually center around either the results of the author’s activities, the personality of the author, or the nature of the author’s activity. The elusive nature of copyright and the very fact that copyright legislation needed a long time to materialize [Kase was writing in 1967, soon after revisions to copyright law in most of Europe, England, and the United States] have resulted in widely differing schools” (4–6]. He then identifies ten principal theories with which jurists have attempted to pin down this “elusive nature.” For the particular period that concerns us, I have consulted Claude Colombet, Propriété littéraire et artistique, 2d ed. (Paris, 1980); Marie Claude Dock, Etude sur le droit d’auteur (Paris, 1963); Henri Falk, Les Privilèges de librairie sous l’Ancien Régime: Etude historique du conflit des droits sur l’oeuvre littéraire (Geneva, 1970); Herrmann-Mascard, Censure des livres à Paris.
24As just one example, Senator Edward Kennedy has recently introduced in Congress proposed legislation (the Visual Artists Rights Act) that would “prevent the intentional mutilation or destruction of [an artist’s] work and provide for resale royalties.” Schuyler Chapin, chairman of the Independent Committee on Arts Policy, and Alberta Arthurs, the group’s president, in endorsing this bill, describe it as maintaining the “connection between a visual artist and that artist’s work,” a connection that is severed by the market, which treats such works as “ownable pieces of property.” “Art,” write Chapin and Arthurs, “is more than a piece of property that some one or some institution owns. And, yes, it is even more than a valuable commodity with one of the highest rates of return on the market. Works of art are much more than that. In some real way they belong to no one because they belong to all of us… . The issue is something larger than marketplace friction. It has to do with that connection between artists and their work that we want to recognize. It has to do with knowing that the artist is the indispensable element here” (New York Times, 29 October 1987; italics added). The question is why, if this element is “indispensable,” the “connection” to it can be severed in so spectacular a fashion. This is the problematic of the signature.
25Falk, 92; italics added.
26One is reminded here of chap. 9, “Du domaine reel,” in Du contrat social, concerning the legitimation of property: “Each member of the community gives himself to it at the moment of its foundation, just as he is, with all the resources at his command, including the goods he possesses. This act does not make possession, in changing hands, change its nature, and become property in the hands of the Sovereign; but, as the forces of the city are incomparably greater than those of an individual, public possession is also, in fact, stronger and more irrevocable, without being any more legitimate, at any rate from the point of view of foreigners [sans être plus légitime, au moins pour les étrangers]” (178–79; 3:365). We will return below to this problem of the “point of view of foreigners,” that is, to the state’s external relations.
27Diderot made this argument in Lettre sur le commerce de la librairie, ed. Bernard Grasset (Paris, 1937); 87, where he writes as someone who has “more or less exercised the double profession of author and publisher.” This text also returns repeatedly to the analogy with property; for example: “Does not a work belong to an author as much as his house or his field does? And can he not forever alienate their ownership? Should it be allowed, for whatever cause or pretext, that the one to whom the author has freely transferred his right be robbed of that right? Does not the substitute deserve all the protection of this right which the government grants owners against all other sorts of usurpers?” (63). This particular edition of the Lettre is interesting as well for the introduction and marginal notes by Bernard Grasset, the Paris publisher, who in 1936 wanted to enlist Diderot’s testimony against proposed legislation by the Popular Front government which would have shortened the period of copyright protection. Grasset has little difficulty demonstrating that issues of propriété littéraire have evolved only superficially in two hundred years.
28In September 1761, less than a year before the condemnation of Emile, both positions suffered a setback when the Conseil granted the claim of La Fontaine’s heirs to block publication of his works by unauthorized publishers. This decision was to serve as precedent for subsequent legislation recognizing a droit d’auteur that cannot be abrogated by publication contracts. The law of 1778 would specify, however, a term after which works entered the public domain.
32In a letter dated 24 July 1762, Rousseau already makes many of the same points about authorship: “Is it certain that J. J. R. is its Author? Is it even certain that he is the author of the book that bears his name? Cannot the name of a man be falsely printed on the title page of a book that is not by him? … If this procedure were legitimate, then the freedom of every good man would be at the mercy of any printer. You will say that the voice of the public is unanimous, and that the one to whom the book is attributed does not disavow it: but, once again, before sullying the irreproachable honor of a good man, before attacking the freedom of a Citizen, one should have some positive proof … the book’s Author does not claim to be the author of the profession of faith; he declares that it is a text he has transcribed in his book… . Thus, if one must punish he who is named on the title page of the book in which is found the profession of faith for having published it, it is as editor and not as author.” Conespondance complete, ed. R. A. Leigh, (Madison, Wis., 1969), letter 2028, 12:96–97.
33Ibid., letter 1126, 7:261.
34Ibid., letter 1133, 7:269; italics added.
35See Correspondance complète, letters 1126, 1133, 1152, 1244, 1303, 1304, 1327, 1350.
36Rousseau’s fantasy in Les Dialogues of the “faithful impression” carried out by a loyal dépositaire of his works has an obvious connection to this apprehension about misprints and forgeries; see below, chap. 4.
37Jus gentium in Roman law. While juridical theorists debated whether there was a real difference between droit des gens and natural law, there was general agreement on its sense as the law applied to foreigners and to foreign states. It is in this latter sense that Rousseau consistently uses the term; see Robert De-rathé, Jean-facques Rousseau et la science politique de son temps (Paris, 1970), 387–90.
38Correspondance complète, letter 1152, 7:297; cf. the fragment “Du bon-heur public,” where Rousseau was also thinking in terms of dependence of nations on each other: “that the happiest nation is the one that can most easily dispense with all others, and that the most flourishing nation is the one that others can least dispense with” (III:512). Paul de Man’s reading of Du contrat social sets out from a reading of this fragment (250 ff.).
39Correspondance complete, letter 1161, 7:312–13.
40In “Des Tours de Babel” Derrida considers the trait of the proper name to be the translation, the contract in the transcendental sense: “The debt does not involve living subjects but names at the edge of the language or, more rigorously, the trait which contracts the relation of the aforementioned living subject to his name, insofar as the latter keeps to the edge of language. And this trait would be that of the to-be-translated from one language to the other, from this edge to the other of the proper name…. The topos of this contract is exceptional, unique, and practically impossible to think under the ordinary category of contract: in a classical code it would have been called transcendental, since in truth it renders possible every contract in general. … The translation contract, in this transcendental sense, would be the contract itself, the absolute contract, the contract form of the contract, that which allows a contract to be what it is” (185–86). In effect, Rousseau’s Contrat breaks off at the point where its terms would have to be translated.