Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
ERC Professor of History, University of Zurich
In the past few decades the understanding of the relationship between nations has undergone a radical transformation. The role of the traditional nation-state is diminishing, along with many of the traditional vocabularies which were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law’. The older boundaries between states are growing ever more fluid, new conceptions and new languages have emerged which are slowly coming to replace the image of a world of sovereign independent nation states which has dominated the study of international relations since the early nineteenth century. This redefinition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. The aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the twenty-first century, that are theoretically informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge.
PREVIOUSLY PUBLISHED IN THIS SERIES
Crafting the International Order: Practitioners and Practices of International Law since c.1800
Edited by Marcus M. Payk and Kim Christian Priemel
The Justification of War and International Order: From Past to Present
Edited by Lothar Brock and Hendrik Simon
Remaking Central Europe: The League of Nations and the Former Habsburg Lands
Edited by Peter Becker and Natasha Wheatley
The Right of Sovereignty
Jean Bodin on the Sovereign State and the Law of Nations
DANIEL
LEE
3
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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사랑하는 나의 딸을 위하여
For Elizabeth
Series Editor’s Preface
The humanist legal scholar, historian, and philosopher Jean Bodin (c. 1530–1596) is widely interpreted as the inventor of an ‘absolutist’ conception of sovereignty. Sovereignty, on this conventional interpretation, consists in an unlimited power to command, a power that is itself not subject to any other human will. It is immediately obvious that much hinges on how we are to understand this power: is it a descriptive notion, or is it normative? Is power, that is, understood here as the brute ability to coerce, or is it something that emanates from a properly constituted legal authority? Does this power, in other words, create obligations on the part of the subjects it addresses, or does it merely force, and physically constrain, those subject to it?
Arguing against the conventional interpretation of sovereignty, Professor Lee, in this groundbreaking new monograph, shows that current jurisprudential debates about the nature of law and sovereignty have fallen prey to a kind of amnesia. Having all but forgotten Bodin, they seek to reenact arguments that had been waged long before Jeremy Bentham (1748–1832) and John Austin (1790–1859) sought to formulate a descriptive theory of law. In these current debates, Bodin, if mentioned at all, is usually seen as a predecessor of Austin’s positivist, descriptive theory of law and sovereignty, as a proponent of what the legal philosopher H.L.A. Hart (1907–1992) derisively called the ‘gunman theory’ of law.
As Lee explains, however, Bodin insisted on treating sovereignty [summum imperium] ‘fundamentally as a normative concept of right, not one of force,’ because Bodin, along with his Roman sources, believed that one can have sovereignty only over those ‘over whom one already has a right, and is thus entitled, to command’: hence the title of the present book. As Lee shows, Bodin in fact reaches back to much earlier attempts by Cicero (106–43 B.C.E.) and Augustine (354–430) to state clearly the relationship between robber bands (the gunman) and legitimate sovereignty, aligning himself with some strands of that tradition and the idea that lawmaking as the key expression of sovereignty formally constrains what sovereignty is and what it can do.
Previous interpreters have gone astray because they thought that Bodin, by insisting on the sovereign authority of the state being ‘freed from the laws’, legibus soluta, was expressing a legal positivism that anticipated Austin’s descriptive ‘gunman theory’ of law. But nothing could be more misleading, Lee points out: while Bodin’s sovereign is indeed essentially a lawmaker and therefore free to unmake and remake legislation [leges], this sovereign remains a normative authority, bound by the higher-order norms [ius] of the law of nature and the law
of nations. The sovereign is necessarily legibus solutus qua legislator, but cannot possibly be iuribus solutus qua authority. Sovereignty can express itself by arbitrary will or by law, but it is conditioned by its very purpose – protection and the guarantee of contractual relations among subjects – to express itself through law.
This meant that sovereigns, according to Bodin, were in fact constrained by contractual obligations, which were not part of statute [lex], Bodin thought, but of higher-order law [ius]. Since the guarantee of contracts among subjects was an essential function of the sovereign, the sovereign is bound, almost as a matter of conceptual necessity, to keep contracts the sovereign is itself a party to. Contractual obligations, then, are for Bodin insulated from sovereign power, and here Lee discovers an anticipation of Hans Kelsen’s (1881–1973) important international legal theory. In this and other ways, sovereignty as conceived by Bodin is shown by Lee to betray an internal normativity that reaches from matters domestic deeply into the international realm, which is as a consequence seen as shot through with both prudential and moral norms.
What makes the present monograph so appealing and indeed urgent is not just these important interpretive issues, but rather the fact that this is a book that is about sovereignty first and foremost. Professor Lee uses a historically sensitive interpretation of Bodin as an instrument to achieve a concept of sovereignty that can effortlessly hold its own in current debates and is indeed often brought in dialogue with current ideas in jurisprudence and international law. Perhaps paradoxically, it is especially the idea of sovereignty as a power carrying burdens of responsibility and fiduciary duties – an idea only recently defended by legal theorists such as Eyal Benvenisti and others – that Lee’s Bodin makes very plausible. Sovereigns are dutybound to protect their citizens and sometimes others. The sovereign is, Bodin argued, ‘obliged to maintain his subjects in the security of their persons, properties, and families by force of arms and by laws’. These duties cannot be legislated away, for they are conceptually connected with the right of sovereignty. Thus burdened, the right of sovereignty may, Daniel Lee argues convincingly, serve again as the cornerstone for an international legal order.
Benjamin Straumann
New York
May 2021
Preface and Acknowledgements
I first encountered the name, Jean Bodin, in my senior year in college as an undergraduate at Columbia, when one Professor Julian H. Franklin offered a course on the theme of sovereignty. I never took that course, one of my greatest regrets. Julian was retiring, and I was graduating, in New York City mere weeks before the horrors of 9/11. But I remembered the name of Bodin. Little did I know then how central Bodin’s political theory would become, not only for my own scholarship and professional life, but for how I would come to interpret and understand the many crises now defining political modernity.
As it happened, my first academic appointment was in the Society of Fellows at Columbia, which made possible a fortuitous reunion with Julian. By then, I had carefully studied all of Julian’s major works, and I remember fondly the advice and encouragement I received from him in numerous seminars, lunches, and coffees we shared together. Even though we ultimately arrived at very different interpretations of Bodin’s theory of sovereignty and the purposes of sovereignty in modern politics, I realize I never would have dedicated so many years to studying Bodin in the first place, were it not for Julian’s groundbreaking work on Bodin’s political thought. I need to begin, therefore, by acknowledging the enormous debt I owe him. Anybody who has studied Bodin in the English-speaking world is a beneficiary of Julian Franklin’s academic legacy.
This study is the first book-length treatment of Jean Bodin’s political and legal thought in English to be published in nearly a half-century, since the original publication of Franklin’s Jean Bodin and the Rise of Absolutist Theory in 1973. Although I hope this book will be deemed a worthy successor to Franklin’s work, my own approach questions – and ultimately rejects – the starting premise of Franklin’s own work, which was that Bodin was an adherent of political ‘absolutism’. Franklin, convinced of Bodin’s absolutism and supposed opposition to constitutionalism, cannot help but interpret Bodinian sovereignty through the lens of early modern absolutist politics, as the obvious response to the civil unrest and religious violence unfolding in France in the 1570s.
But this assumption of absolutism (a category invented two centuries after Bodin’s death) fundamentally misrepresents Bodin’s purposes. As I’ll argue in the chapters to follow, Bodin wasn’t an absolutist, and his goal wasn’t to promote an ideology of absolutism. Rather, it was to elucidate what he regarded as the quintessential quality of statehood, a point of vital importance both for the constitutional theory of state and public international law.
Modern scholars, suspicious of Bodin’s alleged absolutism, have tried to keep a safe critical distance from Bodin’s political theory. Like Franklin, generations of
scholars in the English-speaking world have treated Bodin at arm’s length, more as a historical pre-Enlightenment curiosity illustrating how not to think about sovereignty, rather than as someone whose ideas are worthy of serious academic engagement by specialists in law and across the social sciences. As a result, the most active scholarship on Bodin is now largely segregated from the mainstream of research in law and the social sciences, as a narrow antiquarian specialty of French intellectual and legal history.
This is unfortunate. Bodin was, and remains still, the preeminent theorist of state sovereignty in modern political and legal thought. Not only did Bodin anticipate and address many of the contemporary interpretive problems concerning sovereignty, some of which have now been addressed by the International Court of Justice, he is one of the principal sources of doctrines that have indelibly shaped modern public international law concerning sovereign immunity, the validity of international obligations and sovereign debts, and the indivisibility and imprescriptibility of sovereignty. So long as sovereignty continues to define the state-centric character of modern politics, Bodin will remain indispensable to lawyers, policymakers, and academic political theorists.
I do not regard this study as anything close to my final word on Bodin. Rather, I hope it will serve as an academic conversation starter and will inspire and provoke a new body of theoretical and interpretive scholarship on Bodin. There is a lot about Bodin’s thought that I haven’t been able to explore adequately in this book, and I know I will have more to say in the future. Hopefully, with this book, I’ll have more interlocutors with whom I can share and continue this conversation about the merits of sovereignty and whether humanity is ready for a world beyond sovereignty.
I want to begin by thanking Benjamin Straumann and Anthony Pagden for suggesting that I write this book for a series on the intellectual history and theory of international law. I hesitated at first, because I didn’t really think of Bodin as a theorist of international law and worried that I wouldn’t have much to say about the international dimension of Bodinian sovereignty. Bodin is not usually considered one of the canonical founders of modern international law, in the same way that, say, Suarez, Grotius, and Pufendorf are. But I now feel that is an opinion that should be substantially revised, so long as sovereignty remains one of the constitutive elements defining the modern international system. What I’ve discovered in retracing many of Bodin’s sources and reconstructing his arguments concerning the ius gentium is that internationality is baked into his concept of sovereignty. And I don’t think I could have come to a fuller appreciation of this point without the initial encouragement I received from Benjamin and Anthony.
I also want to express my warmest thanks to Richard Tuck and Johann Sommerville who very graciously agreed to serve as commentators for a book
manuscript workshop in 2017. Their extensive comments on an early version of the manuscript were instrumental in fundamentally reshaping the structure and content of the text, and I’m deeply grateful to them, as well as to the Berkeley Institute of International Studies, the Kadish Center for Morality, Law, and Public Affairs at the Berkeley School of Law, and the Robson Kernan Fund in Political Science for making that workshop possible.
Many colleagues have generously taken the time to read and comment on drafts of chapters, participate in correspondence on various substantive points in this book, or provide drafts of their own writing to me (especially during the COVID-19 pandemic). To them and to many others, I offer my heartfelt thanks and goodwill: Cliff Ando, Ed Andrew, Julian Arato, Ryan Balot, David Bates, Eric Beerbohm, Chuck Beitz, Mark Bevir, Ann Blair, Wendy Brown, Daniela Cammack, Simone Chambers, Samuel Chan, Josh Cohen, Marie Dominique Couzinet, Wim Decock, Helge Dedek, Charlie Donahue, David Dyzenhaus, Dan Edelstein, Robin Effron, Stefan Eich, Yannis Evrigenis, Bryan Garsten, the late Ralph Giesey, Ryan Greenwood, David Grewal, Kinch Hoekstra, Martti Koskenniemi, Chris Kutz, Jacob Levy, David Lieberman, Howell Lloyd, Martin Loughlin, Ken Pennington, Philip Pettit, Diego Pirillo, Diego Quaglioni, Jon Robinson, Michael Rosen, Quentin Skinner, Sarah Song, Pete Stacey, Simon Stern, Mario Turchetti, and Melissa Williams.
I also wish to thank the many excellent research assistants who have supported the work of this project over the past several years: Jason Brown, Shterna Friedman, Sibbyl Nickerson, and Rosie Wagner. I could not have completed this book without their vital contributions. Thank you to all of you.
I also want to take this opportunity to recognize the many outstanding students at Berkeley and Toronto, who, over the years, enrolled and participated in my seminar and lecture courses on sovereignty. I was able to explore many of the ideas that eventually made their way into this book in those settings. I received some of the most valuable feedback in these settings, and so, I give thanks to my students who made possible some of the most rewarding intellectual experiences I’ve had in my academic career. Needless to say, I’ll take sole responsibility for whatever errors that may remain.
The chapters included in this volume have been presented at various academic conferences and colloquia in recent years, and I am grateful to my hosts and audiences for allowing me to present this material and for their valuable feedback and support: The American Political Science Association, the Conference for the Study of Political Thought, the University of Toronto (Faculty of Law, ‘Sovereignty Lab’), the Bay Area Forum for Law and Philosophy, Tufts University, UCLA, Stanford University, Harvard University, Yale University, the Medieval Studies Colloquium at Berkeley, and Brooklyn Law School. I was particularly grateful to have had the opportunity to participate in the international conference on Jean Bodin organized at Oxford in 2014 and want to thank the organizers for inviting me.
This volume includes some previously published material: ‘Jean Bodin’, in Great Christian Jurists in French History, ed. Olivier Descamps and Rafael Domingo Osle (Cambridge: Cambridge University Press, 2019); ‘Unmaking Law: Jean Bodin on Law, Equity, and Legal Change’, History of Political Thought 39 (2018): 269–96; ‘Citizenship, Subjection, and the Civil Law: Jean Bodin on Roman Citizenship and the Theory of Consensual Subjection’, in Citizenship and Empire in Europe, 200–1900: The Antonine Constitution after 1800 Years, ed. Clifford Ando (Stuttgart: Franz Steiner Verlag, 2016). All the work in this volume, however, is original and appearing in print for the first time.
Most of the Roman and canon law authorities, commentaries, and consilia cited in this study, as well as Bodin’s 1586 Latin De Republica, are taken from holdings in the Bancroft Library, the Robbins Collection at Berkeley, in addition to my personal copies of the 1591 De Republica and the 1569/74 Venice edition (Editio Postrema) of the Digest, Code, and Volumen Parvum. I am especially grateful to Jennifer Nelson for her expert guidance in navigating through the holdings of the Robbins Collection for this project and especially for tracking down some obscure canonistic sources on the web once the coronavirus shutdowns cut off my regular access to the Robbins. Additionally, I wish to thank Stephen Ferguson of the Rare Books and Special Collections at Princeton University Library who kindly prepared a digital reproduction of Bodin’s Iuris Universi Distributio for my use.
Oxford University Press has been everything I hoped for in an academic publisher, and I am proud to continue partnering with them as an OUP author. I’m particularly grateful to the extraordinary editorial staff at the Press, Merel Alstein, Jamie Berezin, and Jack McNichol, who have always been supportive of my work and who have given me the time, especially during the coronavirus pandemic, to work on this manuscript.
This book appears at a critical moment in Bodin studies, with the appearance of several major new studies on Bodin such as Howell Lloyd’s biography of Bodin, Mario Turchetti’s critical edition of the French République and the Latin De Republica, and Sara Miglietti’s critical edition of the Methodus. Regretfully, I was unable to study Sophie Nicholls’ new study on Bodin and the Catholic League which was released just as I began production of this book. My hope is that The Right of Sovereignty will contribute to this growing body of new scholarship on Bodin’s legal and political thought and restore Bodin to a place of prominence in the canon and in ongoing academic debates on sovereignty.
Finally, I want to express my heartfelt thanks to Rebecca, and to our children, Caleb and Elizabeth. Writing a book – let alone writing a book during a global pandemic – can be a terribly lonely, isolating experience, requiring an abundance of fortitude and patience. I have been blessed to have the steadfast support of a loving family who has helped me practise those virtues every day while writing this book. Daniel Lee Berkeley, California March 2021
Table of Abbreviations
Works by Bodin
De Republica Jean Bodin, De Republica Libri VI (Paris: Jacques Du Puys, 1586).
Distributio Jean Bodin, Iuris Universi Distributio (Paris: Jacques Du Puys, 1578).
Methodus Jean Bodin, Methodus ad Facilem Historiarum Cognitionem (Paris: Apud Martinum Iuvenem, 1572).
République Jean Bodin, Les Six Livres de la République (Paris: Jacques Du Puys, 1583).
Other Works
Aristotle Aristotle, The Complete Works of Aristotle, 2 vols., ed. Jonathan Barnes (Princeton: Princeton University Press, 1985).
Colloquium Jean Bodin, The Colloquium of the Seven about Secrets of the Sublime, trans. Marion Leathers Kuntz (University Park: Pennsylvania State Press, 1975).
De Legibus Cicero, De Legibus, Loeb Classical Library 213, trans. Clinton Walker Keyes (Cambridge: Harvard University Press, 1928).
De Off. Cicero, De Officiis, Loeb Classical Library 30, trans. Walter Miller (Cambridge: Harvard University Press, 1975).
De Re Publica Cicero, De Re Publica, Loeb Classical Library 213, trans. Clinton Walker Keyes (Cambridge: Harvard University Press, 1928).
Exposé Jean Bodin, Exposé du Droit Universel, ed. Lucien Jerphagnon, Simone Goyard-Fabre, René-Marie Rampelberg (Paris: Presses Universitaires de France, 1985).
Franklin Jean Bodin, On Sovereignty, ed. and trans. Julian H. Franklin (Cambridge: Cambridge University Press, 1992).
Gaius Institutes of Gaius, ed. Francis de Zulueta (Oxford: Clarendon Press, 1953).
Grotius Hugo Grotius, De Iure Belli ac Pacis Libri Tres, Editio Nova (Amsterdam: Iohannes Blaeu, 1646).
Inst. [English] Institutes of Justinian, ed. J.B. Moyle (Oxford: Oxford University Press, 1913).
Knolles Jean Bodin, The Six Bookes of a Commonweale, trans. Richard Knolles (London: Impensis G. Bishop, 1606).
Miglietti Jean Bodin, Methodus ad Facilem Historiarum Cognitionem, ed. Sara Miglietti (Pisa: Edizioni della Normale, 2013).
Plato Plato, Complete Works, ed. John M. Cooper and D.S. Hutchinson (Indianapolis: Hackett, 1997).
Popular Sovereignty Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (Oxford: Oxford University Press, 2016).
Pufendorf Samuel Pufendorf, De Iure Naturae et Gentium Libri Octo (Amsterdam: Apud Joannem Wolters, 1698).
Republic Plato, Republic, Loeb Classical Library in 2 vols., ed. and trans. Chris Emlyn-Jones and William Preddy (Cambridge: Harvard University Press, 2013).
Stato Jean Bodin, I Sei Libri dello Stato di Jean Bodin, ed. Margherita Isnardi Parente and Diego Quaglioni, 3 vols. (Turin: Unione Tipografico-Editrice Torinese, 1964).
Turchetti
Jean Bodin, Les Six Livres de la République: De Republica Libri Six, bilingual edition of Book I, ed. Mario Turchetti (Paris: Classiques Garnier, 2013).
Roman Law
I have generally consulted two editions, a French and an Italian, of the Corpus Iuris Civilis: The Lyon 1558/1560 and the Venice (Editio Postrema) of 1569/1574, both of which would have been accessible to Bodin.
D. Pandectarum Iuris Civilis (Lyon: Apud Hugonem à Porta [Hugues de la Porte], 1560).
Pandectarum, seu Digestorum Iuris Civilis, Editio Postrema (Venice: Apud Nicolaum Bevilaqua, 1569).
Digestum Vetus [D.1.1.1–24.2.11].
Infortiatum [D.24.3.1–38.17.10].
Digestum Novum [D.39.1.1–50.17.211].
C. Codicis Iustiniani (Lyon: Apud Hugonem à Porta, 1560).
Codicis Dn.Iustiniani, Editio Postrema (Venice: Apud Nicolaum Bevilaqua, 1574) [C.1.1.1–9.51.13].
Volumen (Lyon: Apud Hugonem à Porta, 1558) [C.10.1.1–12.64.1].
Inst. Volumen (Lyon: Apud Hugonem à Porta, 1558).
Institutiones Divi Caesaris Iustiniani, Editio Postrema (Venice: Apud Nicolaum Bevilaqua, 1569).
Nov. Volumen (Lyon: Apud Hugonem à Porta, 1558).
Novellae Constitutiones Divi Caesaris Iustiniani, Quae Authentica Vulgo Appellant, Editio Postrema (Venice: Apud Nicolaum Bevilaqua, 1569).
of Abbreviations
Canon Law
Decretum Gratian, Decretum Gratiani: Emendatum et notationibus illustratum una cum glossis, Gregorii XIII Pont. Max. iussu editum (Rome: In Aedibus Populi Romani, 1582).
X. Gregory IX, Decretales [sive Liber Extra] D. Gregorii Papae IX (Rome: In Aedibus Populi Romani, 1582).
VI. Boniface VIII, Liber Sextus Decretalium (Rome: In Aedibus Populi Romani, 1582).
Feudal Law
L.F. Volumen (Lyon: Apud Hugonem à Porta, 1558). Feudorum Libri Duo, Editio Postrema (Venice: Apud Nicolaum Bevilaqua, 1574).
A Note on Texts
I have generally used the 1583 République (the standard version used in scholarship on Bodin) and the 1586 Latin De Republica for citations to Bodin. I have also consulted Kenneth McRae’s edition of the 1606 English translation of Richard Knolles, The Six Bookes of a Commonweale. Readers should note that there are a number of substantial differences between the French and Latin texts, a point of ongoing interpretive difficulty in textual scholarship on Bodin’s République. While the French text was written in the vernacular to reach a wide readership in France, especially the nobility, during the Wars of Religion, the Latin text was intended for a learned international readership acquainted with the use of legal authorities. Probably the most notable difference is the addition of a new chapter in the Latin De Republica III, De ordinibus civium, on the various ranks and orders of citizenship.1 But there are numerous stylistic and substantive differences between the French and Latin texts, necessitating comparison of the corresponding texts.2 In some cases, I have provided both the French and Latin texts to allow for comparison.
For the Methodus, I cite the 1572 edition. And, for the Distributio, I have relied chiefly on the original tabular presentation published in 1578, rather than the prose version published in 1580.3 Bodin was a systematic and visual thinker and visualized conceptual relations throughout his work. The value of the tabular Distributio lies in its visual representation of how Bodin imagined the organizational structure and relation of legal concepts.
Bodin was professionally trained as a lawyer, and he provided copious citations to numerous legal authorities of Roman and canon law, collectively the ‘common law’ [ius commune] of Western legal science, both as in-text and marginal citations. He provided those citations using the extended form of abbreviated titles and incipits, instead of the modern numerical system standardized by Gibbon, Mommsen, and Krueger (for Roman law). While, to the untrained eye, and even for someone proficient in Latin, these citations may appear to be random strings
1 Howell Lloyd, Jean Bodin, ‘This Pre-eminent Man of France’: An Intellectual Biography (Oxford: Oxford University Press, 2017) 129 argues, following evidence in a study by Diego Quaglioni, that Bodin essentially plagiarized the work of the jurist, André Tiraqueau, Commentarii de Nobilitate et Iure Primigeniorum (Basel: Hieronymus Froben and Nicolaus Episcopius, 1561) and consequently ‘perpetrated multiple errors, confusing the opinions of different jurists, distorting biblical quotations, even inventing new laws’. Cp. Diego Quaglioni, ‘Una fonte del Bodin: André Tiraqueau, giureconsulto: appunti su De Republica, III.8’, in La République di Jean Bodin: Actes du Colloque de Pérouse, 14–15 Novembre 1980 (Florence: Olschki, 1981), Il Pensiero Politico 14: 113–27.
2 Lloyd, Jean Bodin 119–20 usefully summarizes the principal differences between the two editions.
3 Jean Bodin, Juris Universi Distributio (Cologne: Ioannes Gymnicus, 1580). A dialogue version was published by Jan Kocin, Nova Distributio Iuris Universi (Prague: George Nigrinus, 1581).
of text, these were, in effect, shortcuts revealing an interlacing of seemingly unconnected legal doctrines. For convenience, I have modernized these citations and present them in their standard numerical form.
Bodin also routinely and casually cited the medieval legal literature of commentaries and consilia using the sigla, or scribal abbreviations, for civilians and canonists, such as ‘Bart’ for Bartolus of Sassoferrato, ‘Ant.But’ for Antonio da Butrio, ‘Innocet’ for Sinibaldo Fieschi [Innocent IV], ‘Panor’ for Nicolas de Tudeschi [Panormitanus], ‘Alex’ for Alessandro Tartagni de Imola [Imolensis], ‘Felin’ for Felino Sandeo [Felinus Sandeus].4 Where possible, I have tried to decipher these sigla and provide the full name and text of the cited authority.5
Many, though certainly not all, modern studies of Bodin’s texts of political theory and law overlook these citations. But they are vital for understanding Bodin’s theory as a whole, as they provide valuable materials and insights into Bodin’s style of legal reasoning (by way of analogy to private law) as well as clues to retracing sources he may have accessed.6
I completed this book during the coronavirus pandemic and the terrifying California wildfires of 2020. The resulting lockdowns cut off access to primary sources in rare book collections that I would have needed. Out of necessity, I have relied on digital sources, some available on the internet, others generously supplied directly by colleagues and libraries around the world. While I have tried my best to proofread and verify all the sources I have cited, it is likely that there still may be errors which will require a further round of corrections and updating. I would ask readers who encounter such errors, first, for their understanding of the limitations imposed by these exceptional circumstances, and, second, to notify me or the publishers of such errors so that the text can be revised accordingly.
4 Ralph Giesey, ‘Medieval Jurisprudence in Bodin’s Concept of Sovereignty’, in Verhandlungen der Internationalen Bodin Tagung in München, ed. Horst Denzer (München: Beck, 1973) 174 indicates that Bodin’s three most frequently cited sources, by far, were Bartolus, Baldus, and Alexander Tartagnus Imolensis. Howell Lloyd, at Jean Bodin 128 suggests that Bodin may have been ‘relying upon collections or compendia of juristic materials rather than consulting the authors in question directly and in extenso’. Cp. Michel Reulos, ‘Les Sources juridiques de Bodin: Textes, auteurs, pratique’, in Jean Bodin: Verhandlungen der Internationalen Bodin Tagung in München, ed. H. Denzer (München: C.H. Beck, 1973). Such practice, however, would not have been out of the ordinary for lawyers pleading before courts or, like Bodin, preparing consilia.
5 William Hamilton Bryson’s Dictionary of Sigla and Abbreviations to and in Law Books before 1607, 2nd printing with corrections (Buffalo: William S. Hein & Co., Inc., 1996) has been an invaluable resource. An accessible introduction to the medieval system of civil and canon law citations can be found in Appendix I (‘The Romano-Canonical Citation System’) of James Brundage, Medieval Canon Law (London: Longman, 1995) 190–205.
6 On this point, it is interesting that Bodin claims to have consulted the Pandectes de Florence, or Littera Florentina, regarded to be the authoritative surviving manuscript of Justinian’s Roman law texts. De Republica 68 [1.7]. Cp. Stato 1: 323, n.13, suggests an alternate source in Guillaume Budé, Annotationes Reliquae in Pandectas (Paris: Michel de Vascosan, Robert Estienne & Jean de Roigny, 1542) 86.
Introduction
The modern legacy of sovereignty is one of profound ambiguity. It is, on the one hand, celebrated in the post-colonial era as the legal expression of a country’s right of self-determination and the prize of political independence. Yet, sovereignty is also, on the other hand, condemned as an obstacle to the protection of other, arguably more urgent, values such as human rights, environmental and global justice, and the realization of a perpetual peace among nations. Given this ambiguity, commentators have suggested that maybe the world might be better off without sovereignty. The French philosopher, Jacques Maritain, once even proposed that we ought to ‘eliminate sovereignty both as a word and as a concept’ from the lexicon of modern political science and strive instead to imagine a politics without sovereignty.1
That fear of sovereignty is understandable. Maritain’s vision of a sovereigntyfree politics characteristically expressed the collective trauma of a generation that had witnessed the destructive consequences of an international order constructed upon antiquated ‘Westphalian’ notions of territorial state sovereignty. For witnesses of World War II and the Cold War, sovereignty became inextricably tied to the consequences of totalizing state power and its brutally dehumanizing technological efficiency in the atomic age.
That generational experience had fundamentally shaped the academic agenda of twentieth-century scholarship in jurisprudence and political science, which sought, in part, to tame, and even eliminate, sovereignty. Sovereignty scepticism was the driving force for writers in diverse intellectual traditions and fields, such as Giorgio Agamben, Hannah Arendt, Karl Barth, Ernst Cassirer, Robert Dahl, Jacques Derrida, Michel Foucault, Carl Friedrich, Hans Kelsen, and Harold Laski who sought a sovereignty-free (or at least sovereignty-tamed) law and politics. Some commentators had even boldly predicted the withering away of state sovereignty, eventually to be replaced by a pluralistic and interdependent system of international law and global governance.2 One still encounters the occasional
1 Jacques Maritain, ‘The Concept of Sovereignty’, American Political Science Review 44 (1950): 343. Cp. Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen: Mohr, 1920) 320; Léon Duguit, Law in the Modern State, ed. Frida Laski and Harold Laski (London: Allen & Unwin, 1921).
2 A prominent modern example is Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). Michael Hardt and Antonio Negri point to a similar conclusion in Empire (Cambridge: Harvard University Press, 2001). See also Neil MacCormick, ‘Beyond the Sovereign State’, Modern Law Review 56 (1993): 1–18.
dismissive remark that sovereignty is but a ‘mistake’ in practical or political reasoning, even a ‘delusion’ of political modernity that holds our political reasoning ‘captive’.3
The reality, of course, is that we still inhabit a world where politics and law are experienced and practised through the framework of sovereign states, as much as some would prefer to wish them away. Indeed, the notion of sovereignty is still routinely invoked and exploited in contemporary politics to justify the permissibility of all sorts of actions attached to profound international consequences.
Consider some recent examples of these purported assertions of sovereignty. Sovereignty has been invoked by defenders of ‘Brexit’ – the political process of the United Kingdom’s departure from the European Union under the provisions of Article 50 of the Lisbon Treaty – as a lawful assertion of ‘British sovereignty’ determined through referendum.4 The President of the United States described America’s abrupt withdrawal from the Paris Climate Accord in 2017 as ‘a reassertion of America’s sovereignty’.5 The aspiration for sovereignty has also driven countless independence and secessionist movements, most recently the Catalan independence movement whose president, Carles Puigdemont, described the purpose of secession not ‘in terms of nationalism, but of sovereignty’.6 The environmental politics of climate change, too, has also generated fierce defences of state sovereignty, as the Brazilian President, Jair Bolsonaro, did, when responding to international critics of Amazon deforestation, in reasserting Brazilian sovereignty over a global interest in protecting the Amazon rain forests.7 To be sure, public statements of these kinds are intended for public consumption to meet short-term political calculations. What they amply indicate, however, is the continuing rhetorical power of sovereignty and how deeply engrained the idea of sovereignty is.
But this is more than just about political rhetoric. Nothing can make this point more vividly today than the stark differences in national outcomes in responses to the COVID-19 global pandemic beginning in 2020, with some states relying on a strategy of vigorous testing and contact-tracing and others relying on strict
3 Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization and Human Rights, et Cetera’, Fordham Law Review 68 (1999): 2; ‘The sovereignty of states in international relations is essentially a mistake’. Joan Cocks, On Sovereignty and Other Political Delusions (London: Bloomsbury, 2014); Jonathan Havercroft, Captives of Sovereignty (Cambridge: Cambridge University Press, 2011). Most recent in this literature is Don Herzog, Sovereignty, RIP (New Haven: Yale University Press, 2020).
4 Noah Carl, James Dennison, and Geoffrey Evans, ‘European But Not European Enough: An Explanation for Brexit’, European Union Politics 20 (2019): 297.
5 Administration of Donald Trump, ‘Remarks Announcing United States Withdrawal from the United Nations Framework Convention on Climate Change Paris Agreement’, Daily Comp. Pres. Docs., 2017 DCPD No.: DCPD201700373 (1 June 2017) 5.
7 For the history and broader context of how sovereignty enters into Brazilian Amazon politics, see Ane Marie Todd, ‘Environmental Sovereignty Discourse of the Brazilian Amazon: National Politics and the Globalization of Indigenous Resistance’, Journal of Communication Inquiry 27 (2003): 354–70.
nationwide quarantines and border closures. Sovereignty as a fundamental principle of global politics, it seems safe to say, doesn’t seem to be going anywhere.
Yet, despite its currency even in contemporary politics, sovereignty has become now possibly the most misunderstood and abused concept of modern political thought.8 Martin Loughlin has lucidly diagnosed the difficulty:
The concept [of sovereignty] is much misunderstood today, mainly because of a failure to acknowledge its intrinsic political and legal dimensions. Political scientists fail to recognize its juristic character, and confuse sovereignty with governmental power, while legal theorists strive to promote the autonomy of law and seek either to abandon the concept altogether or to convert it into an entirely metaphorical notion, the sovereignty of law.9
However, this perennial complaint that sovereignty is ‘misunderstood’ is nothing new and can potentially be traced back centuries.10 Why has sovereignty escaped uniform definition and agreement?
One of the principal motivations for this study is rooted in my academic instinct as a scholar of political thought to embrace and engage, rather than to eschew, interpretive disagreements and to treat them as vehicles to explore the wider interpretive possibilities of a concept like sovereignty. In studying sovereignty, we want, not only to know what sovereignty is, but to apprehend a vision of what sovereignty might have been, and what it could be. That will surely require us to do more than taking the safe road of preemptively avoiding or disabling interpretive uncertainties. It requires us, instead, to venture down a more daring path, by cultivating and practising what the American political theorist, Sheldon Wolin, once regarded as the most vital function of political science – the imaginative capacity for creative political vision.11
Two Concepts of Sovereignty
What, then, is sovereignty? Etymology, I think, can help us find a way to approach this question. Consider the standard etymology which traces the linguistic origins
8 This is the basic theme of a number of recent titles whose purpose is ultimately corrective in our understanding of sovereignty, such as Dieter Grimm, Sovereignty: The Origin and Future of a Political and Legal Concept, trans. Belinda Cooper (New York: Columbia University Press, 2015); Stewart Patrick, The Sovereignty Wars: Reconciling America with the World (Washington: Brookings, 2019).
9 Martin Loughlin, ‘Why Sovereignty?’ in Sovereignty and the Law, ed. Peter Rawlings, et al. (Oxford: Oxford University Press, 2013) 35.
10 Bodin’s own treatment of sovereignty in République 122, 211; De Republica 78, 147 [1.8, 1.10] opens with a complaint that lawyers, philosophers, and historians all failed to understand and define sovereignty properly and, as a result, misunderstood its essential qualities.
11 Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, 2004).
of ‘sovereignty’ to the French cognate, souveraineté, a nominalization of the adjective souverain 12 One of its simple meanings is ‘supreme’, which in turn is said to be traceable to the Latin preposition, super, meaning ‘above’ or ‘beyond’. It signalled not so much a concept of omnipotence, but rather a concept of supremacy.
The term’s original application wasn’t precisely limited to law and politics. It was, in fact, used widely in theology, to describe the mystical qualities of God’s divinity and supremacy over Creation.13 But as an attribute of independent states – and, in particular, the authority structure within those states – it was not clear what made one souverain or ‘supreme’ over others.
One way to answer this puzzle is to interpret sovereignty strictly in terms of force – more specifically, the coercive force capable of being asserted or threatened over the population of some geographical space, thereby inducing that territoriallybound subject population to behave in compliance with the desires of the enforcing regime. It is, on this account, just this brute fact of coercive force – ‘hard power’, as Joseph Nye once called it – and its potential to sustain social order that truly makes one ‘sovereign’ over others.14 This is, of course, an old idea, constitutive of modern Realpolitik whose intellectual inspirations can be traced to Thucydides, Machiavelli, and Hobbes. And it is an idea that remains vital in the modern social sciences, especially in ‘neo-realist’ political science, which treats ‘sovereignty’ fundamentally as a concept of a ‘hard’ coercive power.
The advantage of conceptualizing sovereignty in terms of coercive force is that it avoids the messy task of having to reduce sovereignty to internal beliefs and norms on the part of those subject to a coercive power. On this theory, what makes one sovereign over me has nothing to do with my acceptance (or non-acceptance) of that sovereign. It makes no difference whether or not I believe in and accept the ruling power as legitimately sovereign. Even if I don’t accept the reigning regime as legitimate, my externally observable, and even measurable, submissive behaviour is all that’s necessary to show who’s in charge and, thus, in a position of sovereignty. Behaviour, not belief, is what counts. And since compliant behaviour can be externally observed and measured, practitioners of social science have favoured
12 In my reading, I believe what Bodin was attempting to express by the term, souveraineté, was what might best be translated into modern English as the quality of ‘high-ness’. The term signified the abstraction of this quality of supremacy, typically found in monarchs. But, given that his goal was a general theory of all states, it was not intended to be an exclusively monarchical notion of supremacy. Hence the quality of supremacy could, in Bodin’s theory, also be detected in kingless republics as well, even in democracies. I have developed this argument at length in Popular Sovereignty, Chapters 5 and 6.
13 J.L. Mackie, ‘Evil and Omnipotence’, Mind 64, No. 254 (1955): 200–12 is an attempt in modern philosophical theology to compare divine omnipotence to sovereignty. Perhaps the classic study exploring these themes of divinity and sovereignty is Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957).
14 Joseph Nye, Soft Power: The Means to Success in World Politics (New York: Public Affairs, 2009). Political scientists sometimes think of sovereignty in terms of the ‘state capacity’ to deliver social goods. We might, in a Hobbesian way, think of social order as the ultimate social good, the precondition for all other social goods that can be enjoyed in the company of others.
treating sovereignty primarily in terms of this state capacity to assert force that is effective in inducing compliant behaviour.
This approach works well in many cases, where states do in fact enjoy and control the ‘state apparatus’ for autonomous governance and enforcement of policy within a bounded territory. But it also raises difficult cases, such as states without sovereignty (such as ‘weak’ or ‘fragile’ states or developing states with low capacity), non-state actors with sovereignty (such as corporations, paramilitary or terrorist groups, etc.), and cases of ‘pooled’, ‘fragmented’, ‘layered’, or ‘shared’ sovereignty. One surprising result is the disaggregation of sovereignty from classical theories of statehood, such that even powerful non-state actors can be candidates for sovereignty, so long as such actors have the effective coercive capacity to induce compliance and submission.15
Lawyers were among the first to point out the shortcomings of conceptualizing sovereignty in terms of coercive force. The English legal philosopher, H.L.A. Hart, once famously caricatured this theory of sovereignty as nothing more than the sovereignty of the ‘gunman’ whose capacity to inflict bodily harm and, thus, control the behaviour of others was what made him sovereign. The caricature, though perhaps an over-simplification, remains useful for us because it invites us to consider what might be missing in a theory that reduces sovereignty to force. And what’s missing is a notion of legitimacy or rightness, the shared belief that sovereignty isn’t simply force, but a force grounded in right. 16
The advantage of this alternative approach is that it avoids the reductive treatment of sovereignty strictly in terms of coercive force: One need not be a ‘gunman writ large’ in order to be a sovereign. On this theory, it isn’t the force of arms that makes one sovereign (even disarmed sovereigns can still be sovereign). It is, rather, the right to hold those arms in the first place. And what upholds such a sovereign right ultimately is the shared collective belief that one is entitled to be in a position of preeminence over others.17
Unlike force which relies on a strict instrumental logic of consequences, right depends on a logic of appropriateness.18 Needless to say, the two logics point to different reasons how and why one comes to be ‘sovereign’ over another. Whereas the logic of consequences relies strictly on a sovereign’s capacity to use force to get its way with others, the second relies on collective beliefs and norms indicating why it
15 It has also led some analysts to the misleading conclusion that we are now living in a period of a declining, eroding, or ‘waning’ state-centric sovereignty through globalization and the delegation and cooperative pooling of these sovereign functions to non-state actors. See, for example, David Lake, ‘The New Sovereignty in International Relations’, International Studies Review 5 (2003): 303–23.
16 I thank David Dyzenhaus, however, for pointing out that, despite Hart’s criticism of the Austinian gunman theory, his own theory of legal authority strategically manoeuvres around concepts of legitimacy and right: one can hold legal authority without resorting to coercion and also without legitimacy.
17 It doesn’t really matter what the content of the belief is. What matters is that some story, some narrative, some theory, is told to rationalize and legitimate some sovereign authority.
18 James March and Johan Olsen, ‘The Logic of Appropriateness’, in The Oxford Handbook of Political Science, ed. Robert Goodin (Oxford: Oxford University Press, 2011).
is only right and proper that this one – and not that one – should be sovereign and worthy of obedience.
Taken together, then, sovereignty can be interpreted in one of these two ways –either as an empirical concept of force, or as a normative concept of right.19 And while these two concepts of sovereignty can coincide and overlap, they aren’t the same.
Given these two contrasting concepts of sovereignty, we might wonder then, what was the point of sovereignty? What was the anterior problem to which sovereignty was supposed to be the solution?
One standard answer was order. Sovereignty’s purpose, it has been customarily argued, was to preserve social and political order, through the hard power of coercive force. This is the classic answer of Realpolitik, framing sovereignty in the cold logic of security and calculated self-interest. Viewed in this way, as an instrument of order, sovereignty was the antidote to what has been characterized as humanity’s natural disorder. And without that force of sovereignty, all the advantages of an orderly – or what Thomas Hobbes called a ‘commodious’ – life would remain unattainable.20
Remarkably, so much of the modern historical and theoretical scholarship on sovereignty has absorbed this basic assumption and consequently presents a tidy narrative, according to which sovereignty was invented and introduced to the politics of early modern Europe as a calculated response to address the religious violence and radical politics associated with the Reformation.21 Only the principle of sovereignty, understood as an abstract concept of order-preserving coercive force, could provide the proper security against the unpredictable dangers of weak states without the capacity to enforce order. This is, in short, the typical history narrated by theorists of international relations locating the origins of the modern ‘Westphalian’ state system.
19 This distinction between ‘force’ and ‘right’ is one ultimately traceable to Cicero who distinguished between vis and ius Pro Sestio in Cicero Orations: Pro Sestio and In Vatinium, trans. R. Gardner, Loeb Classical Library 309 (Cambridge: Harvard University Press, 1958) 160–61 [42.91–92]; De Legibus 3.42. The distinction is largely similar to Martti Koskenniemi’s distinction between the ‘legal’ and ‘pure fact’ approaches to sovereignty attributed, respectively, to Hans Kelsen and Carl Schmitt in From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2009) 228–33. The distinction remains a key feature of recent conceptual analyses of sovereignty, such as Stephen Krasner’s distinction between ‘authority’ and ‘control’, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999) 10; Martin Loughlin’s distinction between potestas and potentia in ‘Why Sovereignty?’ in Sovereignty and the Law: Domestic, European and International Perspectives (Oxford: Oxford University Press, 2013) 39; Evan Fox-Decent, Sovereignty’s Promise (Oxford: Oxford University Press, 2011) 90–1.
I am not suggesting that these are the only two concepts of sovereignty, or that we ought to approach a conceptual analysis of sovereignty by way of bifurcation. All I am suggesting is the inadequacy of treating sovereignty solely in terms of the instrumental logic of consequences as effective force.
20 Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996) 90.
21 F.H. Hinsley, Sovereignty (Cambridge: Cambridge University Press, 1986); Krasner, Sovereignty; Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton: Princeton University Press, 2001); Grimm, Sovereignty
This, of course, assumes that order was indeed the purported goal of sovereignty. But if it wasn’t order, what else could it be?
Jean Bodin and the Right of Sovereignty
The principal focus of this book is the theory of sovereignty articulated by the sixteenth-century French jurist and philosopher, Jean Bodin (c.1530–1596). Described by one writer in the French Enlightenment as ‘a most prolific genius of immense erudition’, Bodin is a towering figure not only in the intellectual history of sovereignty, but in the history of political and legal thought, more generally.22 Alberico Gentili, one of Bodin’s earliest readers, included him among the ‘most distinguished jurists of the land of France’.23 And Pierre Bayle called him ‘one of the most cunning men in France’ [l’un des plus habiles hommes qui fussent en France].24 He is, without doubt, the preeminent theorist of sovereignty whose agenda-setting writings on the topic directly influenced every major theorist of sovereignty who followed him, including Gentili, Grotius, Spinoza, Hobbes, Pufendorf, Leibniz, Rousseau, Gierke, Jellinek, Duguit, Schmitt, Heller, Laski, McIlwain, and Arendt among many others. He is still treated as the principal authority on sovereignty, cited (if perhaps not read) both by scholars as well as by courts.25 Although Bodin most likely didn’t coin the term, souveraineté, 26 as some have suggested, he offered what was perhaps the first systematic treatment of this mystical concept in the West, a task that was developed in several academic works on law, history, and politics: (1) an outline of general jurisprudence (the Iuris Universi Distributio, originally written around 1560, but first published in 1578); (2) a treatise on comparative historical methodology (the Methodus ad Facilem Historiarum Cognitionem, first published in 1566); and (3) Bodin’s magnum opus, his general theory of state and
22 Jean Charles de Lavie, Abrégé de la République de Bodin I (London: Chez Jean Nourse, 1755) Préface ii.
23 Alberico Gentili, De Iure Belli Libri Tres, vol. 2, The Translation of the Edition of 1612, trans. John Rolfe (Oxford: Clarendon Press, 1933) 4 [1.1].
24 Pierre Bayle, ‘Jean Bodin’, in Dictionnaire historique et critique, 5th ed. (Amsterdam, 1734) 2:33, reproduced in Pierre Mesnard, ed., Oeuvres Philosophiques de Jean Bodin: Auteurs Modernes Tome V, 3 (Paris: Presses Universitaires de France, 1951) xxiii.
25 Justice David Souter of the United States Supreme Court, for example, reveals a familiarity with Bodin and early modern political theory. He cites Bodin and Hobbes in his dissenting opinion to Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996): 151 n.44; 153–54, n.49. Souter cited Bodin again, in addition to Baldus, Eliot, and Hobbes, in his dissenting opinion to Alden et al. v. Maine, 527 U.S. 706 (1999): 797. International courts have also referred to Bodin, such as in the dissenting opinion of Judge Antônio Cançado Trindade in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012 (February 3), General List No. 143 at 240 [¶163].
26 Grimm, Sovereignty, 13, citing, inter alia, Marcel David, La souveraineté et les limites juridiques du pouvoir monarchique du IXe au XVe siècle (Paris: Dalloz, 1954); Jürgen Dennert, Ursprung und Begriff der Souveränität (Stuttgart: Gustav Fischer, 1964); Helmut Quaritsch, Souveränität: Entstehung und Entwicklung des Begriff in Frankreich und Deutschland vom 13. Jahrhundert bis 1806 (Frankfurt: Duncker & Humblot, 1986).
law (Les Six Livres de la République, first published in French in 1576 and translated into Latin as De Republica Libri VI in 1586).
Bodin was something of a Renaissance polymath.27 Educated by the Carmelite Order in Paris and later trained in Toulouse to be a lawyer, Bodin’s life work not only included canonical treatises in politics and jurisprudence, but also a translation and commentary of Oppian’s Κυνηγετικά into Latin (Oppiani de Venatione, 1555), a practical guide on prosecuting witches (De la Démonomanie des Sorciers, 1581), a formal treatise on natural philosophy (Universae Naturae Theatrum, 1596), and a dialogue on natural religion (Colloquium Heptaplomeres de Rerum Sublimium Arcanis Abditis, first published in 1857). Much of Bodin’s professional career, however, was in service to the French monarchy, and it was from the perspective of the monarchy that he witnessed the most violent decades of the French Wars of Religion which engulfed France in the 1560s and 1570s.
Given the immediate context of religious violence in which Bodin developed his political theory, it has long been assumed that Bodin introduced the concept of sovereignty as a practical instrument of statecraft in response to what the American sociologist Talcott Parsons would later describe as the problem of declining social order.28 Seeing that Frenchmen were killing each other, and that France itself was falling apart in civil war, Bodin (it was thought) must have reasoned that only a powerful sovereign king with the proper tools of enforcement could preserve order in France. It is a tidy and attractive narrative that positions Bodin’s theory as a precursor to later, perhaps more familiar, theories of Thomas Hobbes and John Austin who likewise conceptualized sovereignty as a device to enforce order through the strategic, one might say even ruthless, use of sanctions.
But as attractive as this narrative is, it overlooks the more basic point that Bodin arrived at the essentials of his theory of sovereignty years before the explosion of cataclysmic violence associated with the Massacre of St. Bartholomew in 1572.29
To treat Bodin’s writing on sovereignty merely as a convenient response to his immediate political context not only undervalues its originality, even brilliance, it also ignores the point that Bodin independently arrived at his concept of sovereignty as the result of his academic work in law and history.
The point of sovereignty, for Bodin, wasn’t order, but something else. Indeed, order, simply by itself, wasn’t valuable and even ancillary to sovereignty. And that is because anybody, with the appropriate tools, could enforce order – including even an unjust or illegal order.
27 On this background, see Ann Blair, The Theater of Nature: Jean Bodin and Renaissance Science (Princeton: Princeton University Press, 1997) and Lloyd, Jean Bodin.
28 Talcott Parsons, The Structure of Social Action (New York: McGraw-Hill, 1937). This is a central thesis of Julian Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge University Press, 1973).
29 This is an important point to keep in mind when evaluating Franklin’s thesis that Bodin’s thought evolved from an earlier, more moderate constitutionalist position in the Methodus before St. Bartholomew to a more absolutist position in the République after St. Bartholomew.
In explaining this point, Bodin often pointed to an illustration taken from Cicero as a sort of thought experiment – the violent force of lawless robbers, brigands, and pirates that roamed the highways and the high seas.30 Suppose robbers and pirates used their illicit violence to capture and subdue innocent victims to comply with their captors’ will.31 One might describe the captured victim’s fearful or desperate compliance to the force and will of their captors as a kind of order – even a kind of state. One might even go so far as to describe those terrorizing captors as ‘sovereigns’ over their captives.
But for Bodin, it would be a huge mistake to designate the sort of ‘order’ established by the naked force of robbers, brigands, pirates (and we may add Hart’s gunmen) as equivalent to sovereign statehood – what Bodin called a répubique (or, in Latin, a respublica).32 Suppose those robbers, brigands, and pirates were to be disarmed, so that their capacity to enforce order was suddenly to be suspended. Those formerly captive and subdued under their captors would have no reason to comply anymore. Indeed, they would be, Bodin argues, fully within their right to resist their erstwhile captors, precisely because they had no obligation to obey.
All of this analysis, of course, relies on imagining sovereignty as an empirical concept of force [force; vis] – which remains a dominant attitude in the social sciences. But what happens if we, instead, treat sovereignty as a normative concept of right [droit; ius], as it is in jurisprudence? Would we arrive at a different understanding of sovereignty’s purpose than the one given to us by those who can only see sovereignty as a concept of force?
My answer in this book is yes. As I’ll argue, Bodin conceptualized sovereignty strictly as a concept of a legal right [droit; ius] and not, as so many have assumed about Bodin, a concept of force [vis]. As William Farr Church once put it, ‘he was throughout a theorist of right, not might. As such, he was poles apart from Hobbes’.33 The purpose of sovereignty, moreover, wasn’t so much to enforce order, as it has been so often suggested. Order was simply a nice by-product. Rather, the
30 This is the first substantive point that Bodin makes in the République Cicero, On Duties, Loeb Classical Library 30, trans. Walter Miller (Cambridge: Harvard University Press, 1913) 384–85 [De Off. 3.29.107]; Augustine, City of God, vol. 2, Books 4–7, Loeb Classical Library 412, trans. William Green (Cambridge: Harvard University Press, 1963) 16–17 [4.4].
31 Such acts of illicit violence are categorized as latrocinia in the Digest of Roman law at D.49.15.24, to distinguish the violent outlawry of brigandage and piracy from lawful enemies [hostes] of Rome who, in war and post bellum, are entitled to legal rights, most notably, the right of postliminy.
32 Bodin expands on this point by way of a legal analogy that Grotius would later use in De Iure Belli ac Pacis 1.3.4: that is the difference between legal marriage [matrimonium iustum and iusta nuptia] and mere concubinage. Only lawful marriage confers upon the husband the right of authority over the wife, essential to the family. Concubinage, by contrast, was mere coercive force and gave the male no right of authority over the female, nor did it establish the rights necessary for the family unit. Cp. De Republica 15 [1.3]: Uxoris appellatione iustam ac legitimam intelligo, non concubinam.
33 Charles Howard McIlwain, ‘Sovereignty Again’, Economica 18 (1926): 253–56; William Farr Church, Constitutional Thought in Sixteenth-Century France: A Study in the Evolution of Ideas (Cambridge: Harvard University Press, 1941) 232. That should, moreover, not be surprising, given that Bodin was, by professional training, a lawyer.
ultimate purpose of Bodinian sovereignty was the unity of the state.34 Sovereignty was the necessary element that bound together the many disparate parts of a state, so that they can become, in Bodin’s words, one state [une République; una respublica]. Through sovereignty, the many become one.
What binds a state together as one unity, however, isn’t force. Nor is it some mystical spirit of state. It is, instead, obligation.
This needs some explanation. Bodin, trained formally in the civil law, understood obligatio in the conventional way presented in Roman legal science, as a ‘legal bond’ [vinculum iuris] tying one party who is duty-bound to perform some act (the obligor) to another party who is correlatively entitled to benefit from that performance (the obligee).35 The paradigmatic example is debt: the debtor is dutybound to perform the duty of repayment [solutio], from which the creditor is entitled to benefit. What ultimately made obligation distinctive for Bodin was this interpersonal relational quality constituted by the mutuality of one’s right and another’s duty.36 And he repurposed this notion of a bond tying duty-bound obligors to rights-holding obligees in explaining how sovereignty might forge a harmonic unity in the state.37
Bodin’s key point is that sovereigns were obligees. Like creditors, sovereigns too were entitled to benefit from performances or services owed to them by their indebted subjects. But subjects weren’t debtors, in any literal sense (unless of course they borrow from their sovereign on credit). They don’t owe simply repayment of loans, as in the case of debtors. What they owe instead is allegiance – the duty of faithful obedience.38
What made the state one unity was common obligation. It wasn’t just that subjects were tied [ligati; cp. ob-ligati] and duty-bound as obligors. The crucial point was that they were tied and duty-bound to one and the same sovereign authority, the one rightfully entitled to receive that allegiance. Only through this juridical frame of obligation (of obligors and obligees) is it really possible for us to see how Bodin saw sovereignty, not so much as a coercive tool for enforcing order in some geographically bounded space or territory, but rather as an imaginative tool
34 On these contrasting interpretations, see the chapters by W.H. Greenleaf, ‘Jean Bodin and the Idea of Order’, Michel Villey, ‘La justice harmonique selon Jean Bodin’, and Michel Reulos, ‘Les Sources juridiques de Bodin’, in Horst Denzer, ed., Jean Bodin: Verhandlungen der internationalen Bodin Tagung in München (München: Beck, 1973) 23–39, 69–86, 416–22.
35 The term, vinculum iuris, originates in the Roman law of obligations at Inst.1.13.pr.
36 This juristic relationship positioning the obligor’s duty as correlative to the obligee’s right or entitlement has been typically called a Hohfeldian claim-right, after the analysis of Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, Yale Law Journal 23 (1913): 30–32.
37 The notion of ‘harmony’ is a recurring theme in Bodin’s thought. His theory of justice identifies three forms of justice, patterned on the three Pythagorean ratios: arithmetic justice, geometric justice, and harmonic justice.
38 Failure to perform that duty is, thus, framed as a legal wrong, even sacrilege, against the sovereign, crimen laesae maiestatis, outlined in the lex Iulia de maiestate D.48.4.1.
