The Dragonfly and Raven

The Dragonfly and Raven

Tuesday, June 7, 2016

What was Bodin's Theory of Sovereignty?

Disclaimer: This essay is in no way a complete realization of the theory of sovereignty of Bodin. While I would love to go on to better explain his ideas, this is an essay that I wrote for a political theory tutorial at Oxford, and alas, I was limited in the word count that I was allotted. Even in surpassing that limit, which I did, I could not cover all what I would have liked to in this essay. Keeping that in mind, enjoy.

In the mid to late Sixteenth Century, the Kingdom of France was in a state of turmoil. The Protestant Reformation had taken root in Northern Europe, and it was spreading to France. King Henry II worked to suppress this growing religious minority (known as the Huguenots), but was unsuccessful in doing so. Upon his death, the crown passed onto his son, Francis II, who ruled for a measly eighteen months, seeing increased rebellious attitudes in the growing Protestant minority and the loss of the Auld Alliance, before his untimely death to disease. Francis II was succeeded by his brother Charles IX, and his regent queen-mother, Catherine de Medici. It was under Catherine that the first of the French Wars of Religion broke out between the Huguenots and the Catholics—with Catherine wanting to suppress the rebellious nature of the Protestants, but still seeking a policy of toleration, until after many years, she ordered the mass murder of thousands of Huguenots, after a failed assassination attempt at their leader. Stepping back though, the conflict between the Huguenots and the Catholics led to a series of political debates between the Constitutionalists (primarily Huguenots), who argued for limits on the sovereignty of the monarchy and for religious toleration, and the Royalists (primarily Catholics), who argued for the sovereignty of the monarchy. In this debate, there is one political philosopher that stands out as special among the others, and that is Jean Bodin. Bodin was a moderate Catholic, who while originally a Constitutionalist, trained in Roman law jurisprudence, made the about-face turn to absolutism—which was at the time, very much against the precedent of traditional medieval jurisprudence.  In his salient work on the matter, Six Books of the Commonwealth, Bodin establishes a theory of sovereignty in the absolutist sense. It is important to know that the theory set out in the Six Books is in direct response to the political debate of the time between the Huguenots and the Catholics. It is the aim of this essay to explore that theory of sovereignty.

To begin, it would be prudent to understand just what is meant by sovereignty in the mind of Bodin. To him, sovereignty is the absolute, supreme, and perpetual power of a commonwealth to act and rule over their territory. Let us dissect what that means. First, there is the idea that sovereign power must be absolute. There are many reasons for this, and they will be covered in full later on in the essay. Of interest here is the relation between the absolute nature of sovereign power and the perpetual nature of that power. The relation is quite simply, really. Absolute power by definition, must not be subservient to any other power (though, as we will see, this is not entirely true), and so, in order for this to occur, it cannot be limited by time. For, if it was limited by time, it would not be absolute. However, this does not mean that laws, once established by a sovereign authority, are untouchable, far from it. But more on this later.

In order for sovereignty to exist, the most important thing that must be is that the sovereign authority must have absolute power. In this, Bodin means that the sovereign authority must be exempt from all civil, or human, laws—a concept otherwise known as legibus solutus.  This exemption from civil law thus gives the sovereign authority the ability to properly legislate in accordance to the natural and divine laws that govern all living things, which Bodin believes that sovereign authorities must govern in accordance with. This idea is both radical in one sense, and in the other sense, conforming with medieval jurisprudence. In medieval jurisprudence, there was not agreement as to whether or not the sovereign authority (chiefly monarchs), should have the liberty given to them in legibus solutus, with many of the medieval kingdoms granting only extremely specific rights of sovereignty to the ruling monarch. At the same time, there was established in medieval jurisprudence the idea that all laws are subject to the natural and divine laws of the world—an idea laid out fully in the works of St. Augustine of Hippo and St. Thomas Aquinas. This subservient role of all to both natural and divine law, then, serves as the only real anti-absolutism of Bodin.

Bodin, in establishing what makes a sovereign authority, discusses the need of their power to be perpetual. This, as previously mentioned, does not mean that the laws that are enacted by sovereign authorities will last forever, far from it. Rather, the laws enacted by sovereigns will last as long as their lives do, with the sovereign authority that replaces them deciding on whether or not to keep that laws that preexisted their reign. In deciding on which laws to keep, and which to do away with, the sovereign authority should keep those which benefit the public, as it is the role of the sovereign authority to look after the commonwealth, as described in natural law. The reason that new sovereign authorities are able to readily ignore the laws of the previous sovereign authorities is because of the previously mentioned legibus solutus, which stems from the idea of absolute power. The concept of legibus solutus is already well established, and all law made by man is civil law, and therefore the sovereign authority is not subject to it. However, there are two points related to this that require further discussion—those being the difference between sovereign authorities and those entrusted with sovereign power temporarily, and then the oddity that is contracts.

Let us first look at how the sovereign authority is distinguished from those entrusted with sovereign power. In this, Bodin is primarily discussing these roles in their relation to a monarchical form of government, though this distinction that he makes still works when applied to aristocratic and democratic forms of government (more on these later). In making the distinction between the two types of people, Bodin posits that if the power of an individual or group of persons is limited in any manner—whether that be in the realm of time, or in terms of form or function—that they are not in fact sovereign, even if they can with aspects of sovereign power. They are what Bodin calls a trustee of sovereignty. The reason that they are trustees rather than sovereign authorities in their own right is that by being limited, they lack the absolute power that is required for sovereignty. Bodin also states that if power is granted to an individual or a group of persons by another group—whether it be a monarch by appointment, or the entirety of the people through an election—that they are not sovereign, but again, trustees. This is because the power of the sovereign must not come from others granting it to you, as that would mean that they in fact have power over you. There is a difference though, in the people granting you their sovereign power as a trustee, and then the people surrendering their sovereign power to you as the sovereign authority—that being that once the sovereign authority of the people is surrendered, it does not return to them. This distinction between the sovereign authority and those who are trustees of sovereign power works well and good in a monarchy, as the distinction is clear. The monarch holds the sovereign power, and gives it to certain ministers and magistrates below him to deal with the micromanaging of their realm. Who then hold sovereignty in the realms of aristocracies and democracies? It is quite simple, really. In aristocracies, the aristocracy is sovereign, and in democracies, the people as a collective are sovereign—though individuals can hold no claim to sovereignty. These are then the ways that sovereignty can present itself in government. At the time, many argued that there are other forms of mixed governments, or governments that combine two or more of the forms of government stated above, as well as corruptions upon these forms of government. While this essay will not explore this aspect of Bodin's work, suffice it to say that he does an extremely good job at dismantling these arguments, and showing how in all of the so called “mixed” forms of government, there really is only aristocracy, democracy, or monarchy.

Now, going back to the idea of legibus solutus. This idea, while exempting the sovereign from the authority of civil law, does not exempt them from the authority of contracts. This may appear to be a contradiction to the absolute nature of the sovereign's authority, but it is in fact not. The role of the sovereign, and of any government, is to maintain the health and welfare of the commonwealth. One of the most crucial aspects of maintaining the welfare of the commonwealth is the enforcement of contracts. Without the enforcement of contracts, there is no guarantee that trade will be fair, and thus, it creates unrest with people not being able to trust each other. Thus, as the absolute and supreme leader of the government, and of the state, the sovereign must fulfill his contracts, so as to not allow for there to be doubt in their, or through them, the government's, guarantee of contracts. Contracts, and the keeping of them, also falls into the realm of natural law, which even sovereigns must follow. Thus, the needing to uphold contracts by sovereigns is twofold.

In addition to what has already been said on sovereignty, Bodin also laws out certain rights of the sovereign (which he refers to as marks). All of these rights come from the main right of the sovereign to make civil law. However, since the connections between that right and the other rights can be at time unclear, Bodin goes on to explain the greater of these marks, and how they tie back to the original, prime mark of sovereignty. I will identify those marks in this essay as well, for the sake of the reader, though a more in-depth analysis will not be had. Among secondary marks of sovereignty given by Bodin are: the ability to wage war and to make peace; the ability to establish the offices of principle magistrates; the right to final appeal or last judgment (this judicial right, it is important to note, was much more robust in medieval jurisprudence, with sovereigns serving in more of a judiciary role than a legislative one); the right to grant pardons and reprieves; the right to fealty and liege homage; the right of coining money; the right to regulate weights and measurements; the right to direct and indirect taxation; the right to the sea; the right to take the property of traitors; the right to enforce a common language; the right to judge in accordance to conscious; and the title of majesty, to name but a few. It is through these marks and the aforementioned absolute and perpetual power that sovereignty is outlined and defined by Bodin.

Writing during the tumultuous French Wars of Religion, the French political philosopher Jean Bodin served as a crucial and influential thinker of the time. He wrote in response to the Huguenots, who argued in favor of limits on the sovereignty of the French Monarchy, and in favor of active resistance against a tyrannical sovereign. In his response (encompassed in the Six Books on the Commonwealth), Bodin makes an argument for the absolute power of the sovereignty, especially in the case of a monarchy, which he viewed as the best of the three available forms of government. He also argued that there is no legitimacy in resistance to a legitimate sovereign authority, even if said authority acts in a manner that is wicked. Opposing them, no matter how vile their actions, is treason of the highest form, for it promotes a state of anarchy in the commonwealth. Bodin also included a set of “marks,” or rights, of sovereignty, all stemming from the absolute power of the sovereign and the role of the sovereign as the creator of civil law. This all together then, is the theory of sovereignty that is posited by Jean Bodin.

Bibliography

Bodin, Jean. On Sovereignty. Edited and translated by Julian H. Franklin. Cambridge: Cambridge University Press. 1992. Print.

Giesey, Ralph E. “Medieval Jurisprudence in Bodin's Concept of Sovereignty” in H. Denzer's Jean Bodin. Trans. By J.H. Franklin. Cambridge. 1992.

Skinner, Quentin. The Foundations of Modern Political Thought Vol. 2. The Age of Reformation. Cambridge: Cambridge University Press. 1978.