Week 2 Discussion

JEAN BODIN

JEAN BODIN (1530–96), French humanist, lawyer, administrator, and scholar. Bodin was one of the first to attribute rising prices in sixteenth-century Europe to the influx of gold from America and he also wrote a book on the detection and punishment of witches. He is one of several thinkers of the period who were concerned to explore the question of how competing claims to rule within the emerging territorial states of Europe might be resolved. For Bodin, it is the possession of “sovereignty” that distinguishes the ruler of a state from other authorities. Despite his erroneous conclusion that sovereign authority cannot be divided between different branches of government, his discussion of the concept constitutes an innovative and enduring contribution to the legal theory, one with momentous consequences for international relations.

From Six Books of the Commonwealth

Book 1, chapter 8 On sovereignty

Sovereignty is the absolute and perpetual power of a commonwealth, which the Latins call maiestas; the Greeks akra exousia, kurion arche, and kurion politeuma; and the Italians segnioria, a word they use for private persons as well as for those who have full control of the state, while the Hebrews call it tomech shévet – that is, the highest power of command. We must now formulate a definition of sovereignty because no jurist or political philosopher has defined it, even though it is the chief point, and the one that needs most to be explained, in a treatise on the commonwealth. Inasmuch as we have said that a commonwealth is a just government, with sovereign power, of several households and of that which they have in common, we need to clarify the meaning of sovereign power.

I have said that this power is perpetual, because it can happen that one or more people have absolute power given to them for some certain period of time, upon the expiration of which they are no more than private subjects. And even while they are in power, they cannot call themselves sovereign princes. They are but trustees and custodians of that power until such time as it pleases the people or the prince to take it back, for the latter always remains in lawful possession (qui en

demeure tousiours saisi). For just as those who lend someone else their goods always remain its owners and possessors, so also those who give power and authority to judge or to command, either for some limited and definite period of time or for as much and as long a time as it shall please them. They still remain lawfully possessed of power and jurisdiction, which the others exercise in the manner of a loan or grant on sufferance (précaire). That is why the [Roman civil] law holds that the governor of a region, or the lieutenant of a prince, being a trustee and guardian of someone else’s power, returns it when his term has expired. And in this respect, it makes no difference whether the officer is high or petty.

If it were otherwise, and the absolute power conceded to a lieutenant of the prince were called sovereignty, he would be able to use it against his prince, who would then be no more than a cipher, and the subject would then command his lord, and the servant his master, which would be absurd. The person of the sovereign, according to the law, is always excepted no matter how much power and authority he grants to someone else; and he never gives so much that he does not hold back even more. He is never prevented from commanding, or from assuming cognizance – by substitution, concurrence, removal, or any way he pleases – of any cause that he left to the jurisdiction of a subject. Nor does it matter whether the subject is a commissioner or an officer. In either case the sovereign can take away the power with which he was endowed by virtue of the commission or the statute of his office, or he can retain him on sufferance in so far and for as long as it pleases him.

… But let us suppose that a people chooses one or several citizens, to whom it gives absolute power to manage the state and to govern freely, without having to submit to vetoes or appeals of any sort, and that this measure is reenacted every year. Shall we not say that they have sovereignty? For he is absolutely sovereign who recognizes nothing, after God, that is greater than himself. I say, however, that they do not have sovereignty, since they are nothing but trustees of a power that was confided to them for a definite period of time. Hence the people did not divest itself of sovereignty when it established one or more lieutenants with absolute power for a definite time, even though that is more generous than if the power was subject to recall at the people’s pleasure without a pre-established time limit. In either case the lieutenant has nothing of his own and remains answerable for his charge to the person of whom he holds the power to command, unlike a sovereign prince who is answerable only to God.

But what would we say if absolute power were conceded for nine or ten years, as it was in the early days of Athens when the people made one of the citizens sovereign and called him archon? I still maintain that he was not a prince and did

not have sovereignty, but was rather a sovereign magistrate who was accountable to the people for his actions after his time in office had expired. One might still object that absolute power can be given to a citizen as I have indicated, yet without requiring him to answer to the people. Thus the Cnidians annually chose sixty citizens whom they called “amnemones” – that is to say, beyond reproach – and granted them sovereign power with no appeal from them, either during their term in office or after it, for anything that they had done. Yet I say that they did not have sovereignty in view of the fact that, as custodians, they were obliged to give it back when their year was up. Sovereignty thus remained in the people, and only its exercise was in the amnemones, whom one could call sovereign magistrates, but not sovereigns pure and simple. For the first is a prince, the other is a subject; the first is a lord, the other is a servant; the first is a proprietor and in lawful possession of the sovereignty (et saisi de la souveraineté), the other is neither its owner nor possessor, but merely holds in trust.

The same applies to regents established during the absence or minority of sovereign princes, no matter whether edicts, orders, and letters patent are signed and sealed with the regents’ signature and seal and are issued in their name, which was the practice in this kingdom prior to the ordinance of King Charles V of France, or whether it is all done in the king’s name and orders are sealed with his seal. For in either case it is quite clear that, according to the law, the master is taken to have done whatever a deputy (procureur) did on his authority. But the regent is properly the deputy of the king and the kingdom, so that the good Count Thibaut called himself procurator regni Francorum (deputy of the French kingdom). Hence when the prince, either present or absent, gives absolute power to a regent or perhaps to the senate, to govern in his name, it is always the king who speaks and who commands even if the title of regent is used on edicts and letters of command.

… So whether it is by commission, nomination to office, or delegation that one exercises someone else’s power, and whether it is for a definite time or in perpetuity, he who exercises this power is not sovereign even if he is not described as an agent or lieutenant in his letters patent. This applies even if the power is conferred by the law of the land, which is an even stronger basis than appointment (election). The ancient law of Scotland thus gave the entire government of the kingdom to the closest relative of a king who was in tutelage or under age, with the requirement that all business be carried on in the king’s name. But the rule was suppressed because of the inconveniences that went with it.

We now turn to the other part of our definition and to what is meant by the words “absolute power.” For the people or the aristocracy (seigneurs) of a commonwealth can purely and simply give someone absolute and perpetual power to dispose of all possessions, persons, and the entire state at his pleasure, and then to leave it to anyone he pleases, just as a proprietor can make a pure and simple gift of his goods for no other reason than his generosity. This is a true gift because it carries no further conditions, being complete and accomplished all at once, whereas gifts that carry obligations and conditions are not authentic gifts. And so sovereignty given to a prince subject to obligations and conditions is properly not sovereignty or absolute power.

This does not apply if the conditions attached at the creation of a prince are of the law of God or nature (la loy de Dieu ou de nature), as was done after the death of a Great King of Tartary. The prince and the people, to whom the right of election belongs, choose any relative of the deceased they please, provided that he is a son or nephew, and after seating him on a golden throne, they pronounce these words, “We beg you, and also wish and bid you, to reign over us.” The king then says, “If that is what you want of me, you must be ready to do as I command, and whom I order killed must be killed forthwith and without delay, and the whole kingdom must be entrusted to me and put into my hands.” The people answers, “So be it.” Then the king, continuing, says, “The word that I speak shall be my sword,” and all the people applaud him. After that he is taken hold of, removed from his throne, and set on the ground seated on a bench, and the princes address him in these words: “Look up and acknowledge God, and then look at this lowly bench on which you sit. If you govern well, you will have your every wish; otherwise you will be put down so low and so completely stripped, that even this bench on which you sit will not be left to you.” This said, he is lifted on high, and acclaimed king of the Tartars. This power is absolute and sovereign, for it has no other condition than what is commanded by the law of God and of nature.

… [A] subject who is exempted from the force of the laws always remains in subjection and obedience to those who have the sovereignty. But persons who are sovereign must not be subject in any way to the commands of someone else and must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others – which cannot be done by someone who is subject to the laws or to persons having power of command over him.

This is why the law says that the prince is not subject to the law; and in fact the very word “law” in Latin implies the command of him who has the sovereignty.

… But as for divine and natural laws, every prince on earth is subject to them, and it is not in their power to contravene them unless they wish to be guilty of treason against God, and to war against Him beneath whose grandeur all the monarchs of this world should bear the yoke and bow the head in abject fear and reverence. The absolute power of princes and of other sovereign lordships (seigneuries souverains), therefore, does not in any way extend to the laws of God and of nature. Indeed he (Innocent IV) who best understood what absolute power is, and made [Christian] kings and emperors bow to him, said that it is nothing but the power of overriding ordinary law. He did not say the laws of God and of nature.

But is the prince not subject to those laws of the land that he has sworn to keep? Here we must distinguish. If the prince swears to himself that he will keep his own law, he is not bound by that law any more than by an oath made to himself. For even subjects are in no way bound by the oath they take in making contracts of a sort that the law permits them to ignore even when the terms are honest and reasonable. And if a sovereign prince promises another prince to keep laws that he or his predecessors have made, he is obligated to keep them if the prince to whom he gave his word has an interest in his so doing – and even if he did not take an oath. But if the prince to whom the promise was made does not have an interest, neither the promise nor the oath can obligate the prince who made the promise. The same may be said of a promise given to a subject by the prince either when he is sovereign or before he is elected, for in this [latter] respect his status makes no difference, despite what many think.

It is not that the prince is bound by his own or his predecessors’ laws, but rather by the just contracts and promises that he has made, whether with or without an oath, as is any private individual. And just as a private individual can be relieved of a promise that is unjust or unreasonable, or burdens him too much, or was put upon him to his substantial loss through trickery, fraud, error, force, or reasonable fear, so for the same reasons can a prince, if he is sovereign, be relieved of anything that involves a diminution of his majesty. And so our maxim stands. The prince is not subject to his own laws or to the laws of his predecessors, but only to his just and reasonable contracts in the observation of which his subjects in general or particular subjects have an interest.

Here many commentators mistakenly confuse the prince’s laws with his contracts, which they call laws, and mistaken also is he [Pedro Belluga] who takes what are called compacted laws (loix pactionees) in the Estates of Aragon to be contracts of the prince. When the king makes an ordinance at the request of the Estates and receives money for it, or a subsidy, they say that the king is bound by it,

and as for other laws that he is not bound. Nevertheless they admit that the prince can override it if the reason for the law should cease. This is true enough, and well founded in reason and authority. But there is no need for money and an oath to oblige a sovereign ruler if the subjects to whom he has given his promise have an interest in the law being kept. For the word of the prince should be like an oracle, and his dignity suffers when one has so low an opinion of him that he is not believed unless he swears, or is not [expected to be] faithful to his promises unless one gives him money. Nevertheless the force of the legal maxim still remains. A sovereign prince can override a law that he has promised and sworn to keep if it ceases to be just without the consent of his subjects, although it is true that in this case a general derogation does not suffice unless a special derogation goes along with it. But if there is no just cause to set aside a law that he has promised to maintain, the prince ought not and cannot [justly] contravene it.

… It is essential, therefore, not to confuse a law and a contract. Law depends on him who has the sovereignty and he can obligate all his subjects by a law but cannot obligate himself. A contract between a prince and his subjects is mutual; it obligates the two parties reciprocally and one party cannot contravene it to the prejudice of the other and without the others consent. In this case the prince has no advantage over the subject except that, if the justice of a law that he has sworn to keep ceases, he is no longer bound by his promise, as we have said, which is a liberty that subjects cannot exercise with respect to each other unless they are relieved [of their obligations] by the prince.