The social contract tradition has been critiqued for harboring ‘domination contracts’ that exclude women, people of color, people with disabilities, and others from political life. In this article, I build on these critical analyses to argue that the liberal ideal of the reasoning and speaking citizen entails the anti-democratic disqualification of ‘silent’ citizens such as young children and many peoples with intellectual disabilities. The liberal veneration of voice and the corollary vilification of silence represent the internal logic of all domination (...) contracts, since it is by comparison to silent children and peoples with disabilities that groups such as women and people of color are viewed as justifiably excluded. I identify two distinct but interacting forms of liberal disqualification: (1) contingent domination contracts, which can be potentially disputed and temporarily resolved by proving a group’s fulfilment of the qualifications of speech and reason; and (2) structural domination contracts, which cannot be resolved for ‘silent’ citizens. Moreover, any viable challenge to a contingent domination contract must centre on the democratic inclusion of silent citizens, which itself will require the reconceptualization and redesign of political processes, as well as workplaces, economies, and other social institutions. (shrink)

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, (...) judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)