The first and fundamental positive law of all commonwealths is the establishing of the legislative power, as the first and fundamental natural law which is to govern even the legislative.
Gist of Idea
Even the legislature must be preceded by a law which gives it power to make laws
John Locke (Second Treatise of Government , 134)
I think Rousseau says that there cannot be a law which enables the general will to set up legislative powers. It just seems to be something which happens. Locke is threatened with an infinite regress. What legitimises the enabling law?
Locke,John: 'Two Treatises of Government' [Everyman 1988], p.183