Jean Bodin
Jean Bodin, a sixteenth-century French writer, in Six Books on the Republic (1576) gave a systematic treatment of the nature and characteristics of sovereignty. According to Sabine, ‘this book also was occasioned by the civil wars and was written with the avowed purpose of strengthening the king’. He further opines that the ‘importance of the book was more due to the fact that it took the idea of sovereign power out of the limbo of theology in which theory of divine right left it.’4 To achieve this end, Bodin sought to present his Republic or the State as an entity that was not based on/did not derive its authority from divine power and divine rights, but was comprised of some kind of social grouping, like families. Bodin’s State derived its power from a neutral source. For him, the State was ‘an association of families and their common possessions governed by a supreme power and by reason.’ This, on the one hand, presented sovereignty as the mark of the State, distinguishing it from other groupings including the family; on the other, it made members of these families constituents (citizens) of the State. Bodin’s concept of the State (unlike Aristotle’s) does not present it as a natural development evolving from families. Aristotle treated the family as the building block through which the state evolved. Bodin attributed the origin of a state to force and conquests.
To relate members of the family to the state, the relationship between the citizen and the state needs to be defined. Similarly, the political power of the sovereign and the private rights and powers of the heads of families are to be different. As the state relates to the realm of the common or the public, when members of families perform public functions, they get into a relationship with the State as citizens. The relationship of a citizen to the State is defined by subjection to the sovereign. An individual may engage in different relationships with families and other groups but his/her relationship with the State as citizen is important. This led Bodin to define sovereignty as ‘supreme power over citizens and subjects, unrestrained by law’ and as the ‘absolute and perpetual power of commanding in the state.’5 According to Bodin, sovereignty has three characteristics, namely (i) supreme power unrestrained by law, (ii) absolute power, and (iii) perpetual power.
Sovereignty is unrestrained by law because it is the source of law itself and a creator cannot be subject to its own creations. This was a departure from the medieval conception where law was conceived as part of an eternal and universal cosmic or natural order. The State as creator of law was the unique concept introduced by Bodin. Sovereigns cannot be made accountable to their subjects and the sovereign’s command is the law of the land. Sovereignty is perpetual as it is not a granting of power that is limited to a specific period. It is inalienable and undelegated.
This conception of sovereignty, citizenship and the relationship between the two led Bodin to come up with two attributes of sovereignty.6 The primary attribute is the power to give laws to citizens collectively without the consent of a superior, an equal or an inferior. Other attributes have been listed—such as the power to declare war and peace, to commission magistrates, to act as a court of last resort, to grant dispensations, to coin money and to levy taxes. However, these attributes flow from the first attribute itself and may be considered to be the consequence of sovereign’s position as legal head of the state.
Bodin put forward a legalistic notion of sovereignty making it the source of positive law and what Sabine calls, a ‘unified legal headship.’ According to Sabine, for Bodin, sovereignty meant ‘a perpetual, humanly unlimited and unconditional right to make, interpret and execute law.’7 For him, sovereignty lay in the ultimate law making body. Moreover, sovereignty became unrestrained and unlimited by any other power apart from the sovereign. As it is perpetual, its permanency defined the State as an unique association.
Furthermore, the presence of a common sovereign over citizens leads to the conceptualization of a political community (state). Bodin distinguished between cité and république. While the former roughly corresponds with the idea of the nation or a grouping where language, religion and customs are identical, the latter connotes a political bond when citizens are subject to the rule of a common sovereign.8
Bodin’s sovereign, however, is not without limitations. Bodin included two primary limitations; namely, the inviolability of private property and the Salic law of France.
First, though supreme and unrestrained, the sovereign was bound by the laws of God and nature. The law of nature, set certain unchangeable standards of rights, stands above human law, which is made by the sovereign. For example, it requires the sovereign to keep agreements arising out of political obligations towards subjects and other sovereigns and particularly, a respect for private property. Bodin’s treatment of private property as granted by the law of nature was hence inviolable, and led him to declare that ‘without just cause the sovereign can neither seize nor give away the property of another.’ This meant that the sovereign could not levy taxes on subjects without their consent or acquire their property likewise. We may presume that this position of Bodin could be attributed to his formulation of the State as an ‘association of families and their common possessions’. Bodin’s concern to protect private property and ‘common possessions’ of families might have led him to iterate the inviolability of private property. However, this remains a contradiction in Bodin’s formulation of sovereignty.
Second, Bodin put limitations on the sovereign that arose from what he called the leges imperii. This meant that certain fundamental laws of the land, which were necessarily, connected with the exercise of sovereignty itself, could not be changed, even by the sovereign. Leges imperii implies that sovereignty itself would vanish if these fundamental laws were violated. In particular, he invoked the inviolability of France’s Salic law that related to succession and excluded females from dynastic succession. Though Bodin’s sovereign had unlimited legislative power, it was restrained by the right to private property and the fundamental laws of the land. Due to this, a confusion between the sovereign and the monarch remains in Bodin’s theory of sovereignty.
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