Avoiding the Tyranny of the Majority: The Role of Convention in Rousseau’s Social Contract

【Abstract】

Introduction

The problem of the “tyranny of the majority”, as raised by Alexis de Tocqueville (1805–1859), concerns an apparent contradiction inherent in democratic societies: namely, that adopting collective decision-making procedures such as majority rule inevitably results in minorities being compelled to submit to the will of the majority. This, in turn, seems to contradict the very spirit of liberalism and democracy.

However, in my reading, this problem of “the tyranny of the majority” had already been addressed by Rousseau (1712–1778) in §1.5 of The Social Contract, where he considers the conditions under which a collective decision-making process might avoid infringing upon individual freedom.

This paper aims to examine what those conditions are. Before turning to that task, however, let us first consider how collective decisions are, in fact, reached in everyday contexts, by way of several familiar examples.

The Legitimate Operation of Majority Rule Requires Psychological Preconditions

Majority rule is one mode of forming a collective will, in which the minority submits to the command of the majority. Let us begin by reflecting on how this process of majority decision-making actually operates.

Suppose, for example, that in an election for class representative, the candidate you support is defeated by a single vote. How would you feel in such a situation? You would likely think, “It can’t be helped,” and accept the result — that is, the command of the majority.
Now imagine a slightly different scenario. Suppose that a student from a neighboring class, not originally entitled to vote, participates in the election and casts a vote for the opposing candidate, thereby tipping the result by a single vote. In that case, would you feel the same resigned acceptance as before? (In all likelihood, you would not.)

A trial can also be regarded, in essence, as an instance of majority rule. After all, the defendant — a single individual — is compelled to submit to the verdict, which is based on the law (established by majority decision among the populace) and the majority opinion of the judges. Notably, in a past case in the United States, the Black defendant requested a jury composed of Black individuals (as in the O.J. Simpson trial). Why did he make such a request?

What these two examples reveal is that, in the context of majority rule, a sense of solidarity or shared identity is essential if the minority is to accept the outcome voluntarily(or spontaneously). This is because human beings possess a psychological tendency: even when the same outcome (such as the result of a vote or a court judgment) is imposed, people are generally willing to submit to the judgment of those they recognize as members of their group — but are far less inclined to obey decisions made by those they perceive as outsiders.

Rousseau Recognized the Essential Role of “Convention” in Collective Decision-Making

In §1.5 of The Social Contract, Rousseau raises the problem inherent in majority rule: namely, from where arises the obligation for the minority to submit to the decisions reached by majority vote?

§1.5: We must always return to the first convention

A people, says Grotius, can give itself to a king. According to Grotius, a people must therefore already be a people before giving themselves to a king. This very act of giving is a civil act; it presupposes a public deliberation. Therefore, before examining the act by which a people elects a king, it would be appropriate to examine the act by which a people becomes a people. For this act, being necessarily prior to the other, is the true foundation of society.

Indeed, if there were no prior convention, then unless the election were unanimous, where would the obligation come from for the few to submit to the choice of the many? And by what right (droit) do a hundred who want a master vote on behalf of ten who do not? The rule of the majority of votes is itself a matter of convention, and presupposes unanimity at least once. (The Social Contract, §1.5)

Here, “king” is used metaphorically to denote any authority that issues commands — in contemporary terms, legislators elected by majority vote or the laws they enact. In essence, Rousseau is asking: what is the source of the obligation that compels the minority to obey the representatives chosen by the majority and the laws passed by them?

Rousseau’s answer is that such obligation arises from convention. To grasp the significance of this term, let us momentarily turn to decision-making rules other than majority voting — in particular, to those such as lotteries or first claims, which also serve to establish collective decisions.

Lotteries and First Claims as Forms of Collective Decision-Making Whose Validity Derives from “Convention”

⚠️This part is the core of the present argument — the reader is urged to proceed with close attention.

Consider how we sometimes determine the recipient of a prize through a lottery. Yet let us pause and reflect: why does drawing the winning lot entitle someone to ownership of the prize? In truth, there is no ultimate foundation (see note 1) for this rule. The lottery is merely a procedure that everyone tacitly agrees to — a custom rule (i.e., a customary rule tacitly accepted by all) that “makes sense” to all involved — and yet, even the losing participants accept that the person who drew the winning lot has a legitimate claim to the reward.

Likewise, ownership may be determined by the act of first claim — yet here too, there exists no ultimate foundation (see note 1) for why the first claimant should rightfully possess the object. As with the lottery, the validity of this custom rule rests entirely upon a unquestioned belief held by all.

Both the lottery and first claims are thus rules of collective decision-making regarding ownership, which function precisely because all individuals involved — including the losers — accept without question that the winner is rightly entitled to the object. This voluntary (or spontaneous)+ and unquestioned psychological state, in which all members of a society accept a custom rule as natural and proper, is what Rousseau refers to as convention++. (see Note 2)

+Throughout this text, the term “voluntary” is used in places where “spontaneous” may also apply. Both voluntary and spontaneous are used here to refer to a kind of intuitive, self-evident acceptance — not the result of reasoning or discussion, but something one simply recognizes and follows without question.

++ Convention can mean either (1) custom or (2) agreement(Übereinstimmung, see Note 3), but in both cases it presupposes a psychological disposition to accept something naturally and without resistance. It is convention not only gives rise to customs but also sustains them over time. This enduring and voluntary(or spontaneous) psychological acceptance lies at the heart of the term convention.

And here we come to the most critical point:
When a convention is in place, all individuals involved — including the losing side — feel that following it is legitimate (or natural). This is because a convention arises in accordance with natural human thought, and thus no one is inclined to question it. (Indeed, does anyone seriously doubt that the winner of a lottery or a first claimant rightfully gains ownership? Surely no one does. But why is that? Because such procedures align with the intuitive logic of human thinking.)

In this light, both lottery and first claim are customary rules (i.e., conventions) for determining rightful victory within a social group—rules that have emerged spontaneously over the long course of human history, grounded in human ways of thinking. And it is precisely because lottery and first claim are conventional that the winner experiences a spontaneous and enduring sense of “right” (droit) — that the object rightfully belongs to them — while the loser, likewise, feels a corresponding and lasting sense of “obligation” (obligation) — that the object rightfully belongs to the winner and that the winner’s right must be acknowledged.

( Example: Suppose Nobita picks up a marble in an empty lot (i.e., makes a first claim). He naturally feels that the marble is now his. Meanwhile, Gian also feels — without having to be told — that the marble rightfully belongs to Nobita. This shared sense of ownership is binding on both Nobita and Gian, each confident that the other accepts it as well. Even if Gian forcibly seizes the marble, he will continue to feel that he has violated Nobita’s right of ownership, and Nobita will feel that he has been wronged. This mutual sense of right and obligation binds them both, and neither can escape it. )

⚠️ Before proceeding further, it is essential to grasp precisely what is meant here by the terms “right,” “obligation,” and “sense”—in particular, the phrase “experiences a spontaneous and enduring sense of right or obligation.” Please also refer to Notes 1–3 for further clarification.

(Related essay)  *written in Japanease
Rethinking the 'Social Contract'(1): On Hume and Rousseau’s Concept of “Convention”
Rethinking the 'Social Contract'(2): A Study of Rousseau’s Concept of the “General Will”

Majority Rule as a Form of Collective Will Formation Grounded in “Convention”

Now, given our understanding of “convention” as a customary rule grounded in human voluntariness, one that establishes rights and obligations with near-permanence, we can now appreciate the meaning of Rousseau’s statement that “The rule of the majority of votes is itself a matter of convention.”

（Ⅰ）Just as human beings intuitively accept the idea that a winner may be determined by lottery or first claim, so too do we possess the notion that one ought to follow the decision of the majority. It is precisely because majority rule is regarded as a self-evident rule — that is, as a convention — that we human beings are inclined to submit voluntarily to the outcomes it produces.

（Ⅱ）However, merely adopting the form of majority rule does not, by itself, guarantee voluntary compliance with the outcome. As illustrated in the two opening examples, people are willing to follow a majority decision only when a sense of solidarity — namely, an intuitive and shared consciousness among participants that they are equally situated and properly qualified to take part (i.e., convention(2)) — is already in place. When such a sense is absent, that willingness to comply tends to disappear. (see Note 4)
Only when all participants unreservedly accept the unity and eligibility of the voting body can the result be considered a legitimate instance of majority rule — that is, one possessing a quasi-permanent, conventional binding power. (If this condition is not met, then what is commonly referred to as “majority rule” is, in fact, not genuine majority rule at all.)

The quoted phrases — “a people becomes a people” and “the true foundation of society” — reflect Rousseau’s claim that, in a democratic society, people can voluntarily accept the outcomes of majority rule, especially with regard to elections and lawmaking, only when a sense of national unity or fraternal solidarity is already in place. (see also Note 5)

（Ⅲ）Moreover, when Conditions I (the appropriateness of the decision-making procedure) and II (the unity and qualification of the participants) have, at least once, been voluntarily accepted by all those involved, the outcome of that procedure comes to be perceived as establishing legitimate rights and obligations. In such cases, even the losing side does not feel that their freedom has been violated. It is precisely because of this voluntary internalization of legitimacy that the effect of the decision tends to endure quasi-permanently.
Rousseau’s statement that “unanimity at least once” (see Note 6) should be understood in this way: it refers to the necessity of a one-time, unanimous convention concerning Conditions I and II. Such a moment of universal assent constitutes a prerequisite (Condition III) for ensuring that all those involved will subsequently comply voluntarily with the outcomes — and for enabling the resultant rights and obligations to attain lasting stability.

Now, in order for a collective decision to be considered genuinely legitimate, there remains one final condition — Condition IV — which Rousseau does not explicitly state, but which we shall explore later. Before turning to that, however, let us first examine a contrasting case: one that does not establish enduring rights and obligations — namely, victory in war.

Victory in War Does Not Create Rights or Obligations

In earlier times, it was often believed that rights and obligations among human beings arose from force — for example, through victory in war.

Grotius and others derive yet another origin of the so-called “right of slavery”(droit d'esclavage) from war. According to them, since the victor has the right to kill the vanquished, the latter may redeem his life at the cost of his liberty — a convention all the more legitimate, they argue, because it benefits both parties. (The Social Contract, §1.4)

Yet the effects of a victory gained through force — such as the supposed right to enslave the defeated — do not endure. A vanquished people may submit while the victor’s power remains strong, but when that dominance fades, they will no longer feel compelled to obey. (One should pay particular attention here to the contrast with convention: the psychological permanence of the sense of obligation is entirely absent in the case of power-based authority.)

Rousseau held that force, being by its nature unstable and subject to change over time, cannot serve as a foundation for universal and enduring rights or obligations.

Now, what kind of right is it that perishes when force ceases? If one must obey through force, then there is no need to obey out of duty; and if one is no longer forced to obey, one is no longer obliged to do so. It follows, then, that the word right adds nothing to force; here, it means nothing at all. (…) Let us therefore agree that force does not create right, and that one is obliged to obey only legitimate powers. Thus, we are brought back, once again, to the primitive question. (§1.3)

Since no man holds natural authority over another, and since force produces no right (droit), it follows that only conventions remain as the basis of all legitimate authority among men. (§1.4)

But the social order is a sacred right (droit sacré), serving as the foundation of all other rights. Yet this right (droit) does not derive from nature; it must therefore be founded upon conventions. The question, then, is to determine what these conventions are.（§1.1）

In a modern democracy, the shifting balance of power in parliament between majority and minority factions resembles the fluctuating fortunes of war. Legislative decisions reached without satisfying the conditions of convention (Conditions I–III, and later IV) are, in effect, nothing more than temporary exercises of numerical dominance. They resemble a victory of force rather than an expression of legitimate authority. As a result, the minority feels no genuine obligation to comply, and when the balance of power shifts again, the other side will simply retaliate in kind. This leads to an endless cycle of alternating domination.

By contrast, a command grounded in convention elicits in those who obey it a voluntary and enduring sense of obligation. It is for this reason that rights and duties born of convention possess stability. The true source of legitimacy in democratic command lies not in formal legislative decisions (analogous to victories in battle), but in the underlying convention.

(In my reading, Rousseau’s concept of the volonté générale (the general will), which emerges in the later chapters of The Social Contract, may be seen as a reformulation—or perhaps a rephrasing—of the earlier idea of convention, understood as a kind of collective spontaneity or voluntariness. He maintains that, in order for laws—that is, commands—to avoid infringing upon individual freedom, they must be enacted in accordance with this volonté générale. Notably, the French term volonté, typically rendered as “will,” belongs to the same lexical family as voluntary and volontairement, and thus carries the connotation of spontaneity or voluntariness.→ See also the related essay)

(Related essay)  *written in Japanease
Rethinking the 'Social Contract'(2): A Study of Rousseau’s Concept of the “General Will”

Condition IV: Conventions Themselves Must Not Be Made Subject to Collective Decision-Making

As we have seen, only convention can impose obligations on the losing party without infringing upon their freedom. From this, it follows — though Rousseau himself does not explicitly state it — that a final condition must be added to the list of requirements for legitimate collective decision-making: Condition IV, which holds that the conventional order itself must not be subjected to procedures such as majority vote, lottery, or deliberation.

To take an extreme example: even a law declaring that “the loser of the lottery shall receive ownership” might be passed in parliament if public opinion were skillfully manipulated. But such a law would constitute a violation of liberty — for the rule that “the winner of the lottery receives ownership” is a convention.

Similarly, propositions such as “ownership belongs to the first claimant,” “murder is more serious than theft,” and “there are two sexes, male and female” are themselves conventions — that is, forms of habitual recognition to which people conform voluntarily (or spontaneously). They are not the kind of propositions that can be changed through argument or reconsideration; rather, they belong to a category of belief that is accepted without deliberation and not open to revision. For this reason, they must not be made subject to collective decision-making procedures. (→*7)

Only those domains in which no convention exists may properly be subjected to collective determination.
Consider, for instance, the setting of tax rates: there exists no widespread or intuitive convention as to whether the tax rate should be 10% or 20%, or how the burden should be distributed. Therefore, tax rates may be determined through discussion or majority vote, and may likewise be revised by the same means if circumstances change. In such cases, even those who “lose” in the debate or vote do not experience the outcome as a violation of their freedom. Accordingly, no tyranny of the majority arises.

Liberté conventionnelle (Freedom Based on Convention)

Thus, by submitting only to convention, individuals preserve their freedom — a form of liberty that Rousseau refers to as liberté conventionnelle(conventional liberty) in §1.6. If this form of liberty is abandoned, society inevitably regresses into liberté naturelle(natural liberty): a state governed by force, in which the tyranny of the majority readily emerges.

Rousseau’s social contract (le pacte social) is essentially a collective agreement through which the members of society commit themselves to living under liberté conventionnelle. In this sense, its true function is to prevent a regression into a world governed by force — to ensure that society remains anchored in conventions to which all members submit, voluntarily and with enduring conviction.

The clauses of this contract are so determined by the nature of the act that the slightest modification would render them void and of no effect. Thus, although they may never have been formally stated, they are everywhere the same, everywhere tacitly accepted and acknowledged — until the social pact is violated. At that point, each person returns to their original rights and reclaims their natural liberty (liberté naturelle), losing the conventional liberty (liberté conventionnelle) for which they had renounced it.（§1.6）

Conclusion

At the outset, we posed the question: how, in a democratic society, can the tyranny of the majority — that is, the suppression of minority freedom — be prevented? The answer is this: when Conditions I through IV are fulfilled in any collective decision-making process (whether by majority vote or other means), individuals are inclined to submit voluntarily to the outcome. In such cases, the freedom of the minority — those who are commanded — is not infringed upon, and thus tyranny does not arise.

In a democratic society, (A) representatives are elected by majority vote, and (B) laws are enacted by majority vote in the legislature. For these decisions not to constitute violations of individual freedom, it is essential that, at both stages, all members of the polity have reached a spontaneous and shared recognition — that is, a convention — regarding the fulfillment of Conditions I through IV.

However, when observing recent legislative debates and exchanges on social media, one cannot help but notice a growing tendency to disregard the insights of Rousseau and Tocqueville. There is an increasing inclination to enact laws without convention, relying instead on temporary numerical superiority or rhetorical force to push policies through. This, in effect, marks a reversion to the practices of absolute monarchy, in which a segment of society unilaterally imposes its will on others, thereby violating their freedom. In doing so, such practices betray the very principles of liberalism and democracy.

(End)

*1) Let us consider, here, the “foundation” of the equation 2 + 3 = 5. One might answer, “When you place 2 and 3 counters together and count them, you get 5.” But this does not constitute a true foundation. Why not? Because it relies entirely on the human sense — or intuitive perception — that the resulting group seems to be “five.” In other words, the explanation simply appeals to our felt sense that it is five. It does not go beyond this sensation to offer a deeper or more absolute justification. In the end, the equation 2 + 3 = 5 is nothing more than a conventional expression, grounded in the unquestioned human belief — or shared assumption — that “of course, that’s how it is.”

Similarly, there is no basis beyond a felt sense for the rule that ownership can be acquired through winning a lottery or making a first claim. It is merely a conventional rule, grounded in the human tendency to believe that “of course, that’s how ownership is determined” or that “it just feels natural to think so.” (→ related essay)

*2) Convention, as discussed by Hume in A Treatise of Human Nature (§3.2.2), provides a useful starting point for understanding its meaning. There, Hume argues that the sentiment — that is, the psychological force — that compels one to keep a promise does not arise from the promise itself, but rather from the convention that underlies it. For a more detailed exposition, the related essay may be consulted. Briefly put, the actual force of obligation lies in the overwhelming self-evidence of the convention, and in the discomfort one experiences when deviating from it. This sense of self-evidence and discomfort is akin to the feeling of absurdity evoked by asserting that 2 + 3 = 6, or that ambulances are red. The reason that convention possesses such overwhelming self-evidence — as will be discussed later in the main text — is that it arises in accordance with unconscious and spontaneous patterns of human thought. No further elaboration is necessary here. By contrast, a promise is merely a formal acknowledgment of the convention; it carries no inherent psychological force of its own.

Judging from how the term convention is used in The Social Contract, it is plausible to infer that Rousseau held a conception similar to Hume’s. As discussed later in the main text, Rousseau — particularly in §§1.1 and 1.4 — locates the source of legitimate authority in civil society not in something like a contract, but in convention. Moreover, just as Hume characterizes convention as a tacit agreement, Rousseau likewise states, in §1.6, that the clauses of the social contract are “everywhere the same, everywhere tacitly accepted and acknowledged” (elles sont par-tout les mêmes, par-tout tacitement admises & reconnues). From this similarity in language, it may be inferred that Rousseau, too, placed importance on an unconscious and spontaneous implicit order — that is, a conventional order. (A similar interpretation of Rousseau’s convention — as a kind of unconscious agreement — is also presented in the related article by Hideo Tanaka cited in the references.)

Based on the above considerations, it may be reasonably concluded that Rousseau’s concept of convention is broadly Humean — that is, it is characterized as an unconscious and spontaneous alignment. It is therefore not unnatural to interpret Rousseau as grounding the social contract not in something like a promise or contract, but in this convention, which possesses a stable emotional force or binding power. In this sense, Rousseau’s social 'contract' may be understood as a 'commitment' to follow a conventional order.

*3) It is important to note two points. (i) First, the term convention as used in this paper should not be confused with “agreement” in the ordinary sense — that is, as political compromise or deliberative consensus. Instead, it refers to something closer to what Wittgenstein called “Übereinstimmung” — a tacit and pre-reflective alignment of judgments, rooted in shared human practices. This is not something people arrive at through negotiation, but something they simply follow, often without even being aware that they are doing so. Indeed, the sense of legitimacy one feels when ownership is determined by lottery or first claim is not a matter of “agreement” in the usual sense, but of Übereinstimmung — a pre-reflective alignment or concordance of judgment. It is precisely this Übereinstimmung that forms the basis of legitimate(légitime) authority(autorité) in civil society (see §1.4).

(ii) Accordingly, convention is not merely a matter of social custom.What is meant by convention here refers to a durable social fact — one that is strongly bound to human cognitive dispositions and resistant to change.(→see Note 7) For example, whether one stands on the right or left side of an escalator is merely a social custom. Similarly, slavery was not grounded in human cognition or natural recognition; it, too, was merely a social custom — one in which coercion had become habitualized.

One further point should be noted: (iii) The term convention as used here does not refer merely to an internal feeling or impression. Rather, it denotes a practical social fact — one in which members of society unconsciously conform to certain rules or patterns of behavior, and in doing so, repeatedly enact them. As such, a convention is not purely internal but can be observed externally through the actions of the individuals involved.

In short, a convention possesses two aspects: internally, it takes the form of Übereinstimmung (pre-reflective agreement or alignment); externally, it manifests as custom (habitual practice).

*4) In the case of lotteries, a violation of Condition II can be illustrated by the following scenario. Suppose the lottery organizer keeps the unsold tickets for themselves, and the winning ticket turns out to be among them. Would the general pool of ticket buyers feel that the prize was legitimately awarded? Of course not. Formally speaking, the winner is undeniably the official recipient of the first prize — but they fail to meet Condition II: psychological eligibility as a member of the collective. In that sense, they are not a genuine winner in substance. And in such a case, the only basis on which one might claim that “the result is invalid” lies, in fact, in nothing other than the intuitive judgment that Condition II has not been fulfilled. (→ note 1; → Note 5)

*5) Rousseau offers a clue in §1.2 of The Social Contract, where he describes the family as the most ancient and natural form of society — one bound not by force, but by a ‘voluntary convention’ (convention volontaire). In this sense, a “unified group” is one joined together voluntarily, not forcibly.

Take the O.J. Simpson case: the defendant preferred Black jurors because there exists a spontaneous sense of solidarity among Black individuals. What about class assignments in schools? Some may think that, since class groupings are unilaterally determined by the school, they do not constitute voluntary associations. However, we voluntarily accept the class-assignment system as an inherent feature of school life, and the sense of unity we feel with our assigned classmates is likewise a spontaneous psychological response.

Modern nations, too, are bound together by a shared recognition that they form a kin group descended from a common “imagined ancestry.” This, too, is not the result of external coercion, but rather a spontaneously formed sense of solidarity, grounded in a collectively imagined “our history” — a convention in its own right. (→ related essay)

*6) The phrase “unanimity at least once” might suggest that everyone agreed at the same moment. However, I believe that a time-lagged form of unanimity is also acceptable — as long as one can reasonably imagine that, had they been present, they would have voluntarily accepted Conditions I and II (that is, convention in sense (2)). For example, we voluntarily comply with the vast majority of laws enacted by legislators in the past, and this can be understood as a case in which unanimity concerning Conditions I and II has been achieved — albeit with a time gap.

*7) “Ownership belongs to the first claimant” — In certain societies, such as some primitive communities, the prevailing convention (Übereinstimmung) may be to deny ownership to the first person who captures game and instead to share it collectively. In such societies, it would be inappropriate to impose an order in which the first claimant is granted ownership. Yet even within those same societies, when it comes to, say, children quarreling over toys, a convention may exist in which priority is granted to the first claimant. That, too, must not be overridden. Conventions may vary from one society to another, and they may also change over time — but such changes occur in the same way that languages differ across societies and evolve gradually: that is, through free and spontaneous human practice. Conventions are not things that can be revised through argument or reconsideration.

“There are two sexes: male and female.” — Human beings cannot distinguish two types of medaka fish, but they do intuitively distinguish two kinds of human beings. We cannot escape from this spontaneous act of recognition. Following this recognition, we come to associate certain physiological characteristics — such as physical strength or the capacity to bear children — with each category, and we assign to them the names “male” and “female.” The binary of male and female, then, arises in this way and constitutes a convention (Übereinstimmung) — one that we follow with complete and unconscious consensus.

Now, suppose that some academic discipline were to “prove” that there are three sexes. Would it then be appropriate for the legislature to enact a law, based on that academic claim, declaring that there are three sexes? Even if such a law were enacted, we — in the position of the “losing side” — would likely be unable to obey its obligations voluntarily and from the heart. Our psychological response would more closely resemble that of a defeated people in war.

Thus, collective decisions that target convention itself fail to evoke a spontaneous sense of obligation among those who dissent, and instead give rise to the tyranny of the majority. In such cases, we ought not to legislate, but rather continue to follow the prevailing convention.

| References |

| Related essay | *Japanese

| References | *Japanese