SOVEREIGNITY BEFORE / IN / AFTER BODIN

In our days, the concept of sovereignty is linked to the movement of those who call themselves
“sovranists”, right-wing movement that stress the opposition between national states and
globalized organizations (e.g. Lega and Front National against the European Union). However, it is
not completely right to call these movement “sovranists”, some people prefer populist or
nationalist, and this is because the term from which “sovranist” comes from, sovereignty, is a
neutral term and a very precise concept formulated firstly by jurist and them adopted in the public
sphere.

The expressions sovereign and sovereignty had been linked to political rule since the thirteenth
century in France, where they first appeared a century earlier (form the latin term superaneo,
which was used to talk about natural events, like the heights of the mountains). In the beginning,
they served to characterize objects or the power of God, hence political sovereignty (also in the
XIII century) was intended as relative sovereignty since God was still the most powerful and the
source of worldly sovereignty. The general doctrine of the modern state still has in its core the
concept of sovereignty, in a modern state there is always a subject, an object and a relation of
power between them, this relation is sovereignty (Max Weber’s description of the modern State).

It is a legal (developed by jurists in the first place) and political concept that does not belong
neither to the left nor to the right. In terms of rule, sovereignty described the highest, final
decision-making authority, which lent its holder power over others. The possession and exercise
of sovereignty were the same thing: the power to govern was always held by a person who also
exercised it. It is not an abstract concept.

It is a relevant concept in nowadays public sphere, indeed it is named in the 1st article of the
Italian Constitution, where it is said to be of the people.

«Italy is a democratic Republic founded on labor. Sovereignty belongs to the people and is
exercised by the people in the forms and within the limits of the Constitution». Constitution of the
Italian Republic

Sovereignty has to fundamental aspects:

External aspect.

Internal aspect.

Bodin was the first formulating the concept, even if “recognition of the kings’ unique executive
power came several generations before Bodin formulated his doctrine of sovereignty”. He defines
it as supremacy as authority (a supreme and legitimate one): it is the supreme level of legitimate
power in a given community. He says:

«Just as the ship is nothing but a shapeless wood, without form of vessel, if the backrest that
supports the sides, the bow, the stern, the rudder are removed, so the Republic without sovereign
power, that holds all the members and parts of it together, which makes of all the families and all
the colleges a single body, is no longer Republic». Jean Bodin, The Six Books of the
Commonwealth

Sovereignty before Bodin

In the Middle Age, however, such positions of power were distributed territorially. As a
consequence, sovereignty had to describe a concrete and not an abstract position of power and it
was a plural concept since many “sovereigns” coexisted on one and the same territory (not
referred to a limited territory). Moreover, one could be relatively sovereign (subordinate to a higher
holder) and not an absolute one (limited, by laws, costumes, traditions, traditional attribution to
social classes and to regional parliaments). Every person (or court) who was a final decision-
making authority within his spheres of responsibility, had a sovereignty power.

Furthermore, the only holder of supreme power is God: power is seen as something going top -
down, from God to the Pope, from God to the Emperor (that’s why they both claimed to have
summa potestas).

The problem is that of the coexistence of juridical, religious and political power. Different Medieval
thinkers see different hierarchies:

Egidio Romano said that from the Pope came all the other power (king, emperor, noble, etc…).

Marsilius of Padua contested this idea and said that the Pope shouldn’t have all that power.

Dante Alighieri’s option is expressed in De Monarchia. He gives the theory of the two suns as a
solution. He supposes a division of spiritual (more important, but still limited since it is under
God’s control) and temporal power (controlled by laws, customs and traditions). Both power had
to respect a legal framework, if they do not do it, their power stops being effective.

However, we must specify that law is not perceived as a normative will: the medieval ruler or
judge is just an arbiter, not an autonomous lawmaker, insert in a framework that he cannot change
since everything is under God’s sovereignty and Natural Law. He had to interprets laws given by
God. Leges were prescribed and established by God or Nature, never by men. The term
lawmaking was limited to making existing laws more concrete, hence the sovereign power
coincided with the power of dispensing justice.

In this sense, we can say that there is no puissance absolute that prescind from legal guidelines
(not legibus soltus).

Sovereignity in Bodin

The concept of sovereign - as we have seen - reflects the conditions prevailing in a given
historical period. Hence, it could not remain unaffected by the collapse of the medieval order
(judicial and spiritual asset) and by the emerge of the modern state.

The importance of Bodin (XVI century) lies in the fact that he was able to generalize key
conclusions, drawing theoretical consequences for the notion of sovereignty. However, even in his
case the context is important: his work was contemporaneous of the wars of religion between
protestants and catholics that swept France in the XVI century and the schism. There was still the
idea that will was ultimately in. God’s hands, but there were uncertainties about what God’s will
actually was. Catholics were also in the royalist party, while Huguenots (Calvinist) were anti-
royalist and were massacred during the infamous Night of San Bartolomeo (1572). However, they
were both convinced that in a state couldn’t coexisted two different faiths.

In that period, moreover, French monarchs had started to make themselves absolute rulers >
without breaking radically with the traditional order. Politics developed into an independent
function related to a territory, with a concentration of power and a governing apparatus oriented
toward its use: namely state (Bodin used it as a synonym for Republic, the first country where the
term State was used in a political field was Italy with Machiavelli).

Jean Bodin, in 1576 wrote The Six Books of the Commonwealth, his immediate goal was peace
through tolerance and to do so he re-conceptualized sovereignty as the core element of Republic:
plurality could be transformed into unity only through a decisive intervention of the sovereign
power. He also wrote that sovereignty is the basic concept of the state, if you don’t have
sovereignty you don’t have the state. It has three main features (beside being the supreme power):

Perpetual —> not linked to a specific person.

«Sovereignty is the absolute and perpetual power of a commonwealth, [...] 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.»

Indivisible —> he contests mixing different forms of state (mixed-regime) because it would lead to
civil wars, hence is seen as dangerous for the unity of the state. It is possible to have a
democratic sovereignty, (just as it is possible to have a monarchical sovereignty, which is
according to him the most favorable) but it cannot have elements belonging to other forms of
state.

«to combine monarchy with democracy and with aristocracy is impossible and contradictory, and
cannot even be imagined. For if sovereignty is indivisible»

Absolute —> The main activity of sovereignty is law making and here we find a difference
between both Middle Ages reality and modern reality. He identify in the power of make laws the
prerogative of the sovereignty, a prerogative which includes also all the other (e.g. imposing taxes,
etc). Sovereignty must have no limits and does not have to be accountable to the people. You can
make laws only because you are free from the control or authority of anyone else.

«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».

Also a democratic form of sovereignty must be exercised in absolute terms. However, despite
people being denied the right of resistance, it is not properly absolute because it has to respect
constitutional laws (inalienability of the crown’s land) and because laws must be in line with
natural laws (religious interpretation of laws —> ethical, political and juridical order granted by
God. In this sense, Bodin’s goal was restoring natural order rather than defining a new one).

«he is absolutely sovereign who recognizes nothing, after God, that is greater than himself»

The government of the sovereign is exercised according to the condition that the he has no right
of distributing property because it would be unjust. Moreover, the state is a community that
comprises all the other smaller communities and this is the only element of continuity with respect
to the medieval tradition:

«A commonwealth is a just government, with sovereign power, of several households and of that
which they have in common».

Bodin strived for a solution independent of religious truth to the conflict between le roi, le foi, le loi
meaning that is a purely political solution, that’s why he was dismissively called “politicians” (les
politiques) by contemporaries. In his view, a superior power was necessary to achieve the goal of
restoring internal peace, one that could rise above the warring factions and force them into a
secular order that would allow the opposing faiths to exist side by side, by turning faith into a
private matter (he was against atheism but for tolerance!). From a historical perspective, this could
only be done by the king, who had no lord above him and already possessed a large number of
sovereign rights. The first condition was that he could consolidate the scattered sovereign rights
in his hands and become independent of others in exercising them. With those power, he should
create and implement a new and peaceful order. Moreover, in order to achieve this aim, the power
to make, abrogate and amend laws (STILL in conformity with the “constitutional laws of the realm”
> ABOVE THE LAW BUT NOT ABOVE JUSTICE and still respectful of divine and natural laws,
which are free from the Church’s interpretation) was also necessary as “the principal mark of
sovereign majesty”. However, a right of resistance against unlawful rule was unacceptable to
Bodin, because it would place into question the overriding value of domestic peace, BUT allowed
subjects to remonstrate and even to refuse to obey obviously unlawful laws in concrete situations.
Finally, this legislative power had to be restricted to the temporal: no area of law could be
reserved to the Church. The extension of public power to lawmaking also marked the birth of
positive law. Law’s validity was no longer based in divine will, but in the will of the sovereign.

Thus, sovereignty was still the highest level of independently exercised power (= Middle Ages),
but now described the complete possession of governing authority: it loose its concreteness,
relativity and its collective dimension, becoming abstract, absolute (not limited by any
independent agent), perpetual (do not change with ≠ rulers) and unified*.

Unified > required a single and concrete holder, who could be a king but also the nobility or the
people. Only a division of sovereignty among several independent holders or a mixed government
were ruled out: it had to be indivisible (possession + exercise in the same person)

The fact that others also had authority in addition to the ruler did not affect his sovereignty, as
long as their authority was derived from the ruler and temporary:

“One is the sovereign right which is absolute, unlimited, and above the law, the magistrates and
all citizens. The other is legal right, subject to the laws and the sovereign. This is proper to the
magistrate, and those who have extraordinary powers conferred on them by commission. These
persons can exercise the right only until their office is revoked or their commission expired.”

When he wrote the book, no legal arrangement corresponded to his idea, so his work did not
describe the status quo but opened a new perspective in which the idea of sovereignty was the
essential notion. His book was published in several editions and translated in several languages,
because his concept of sovereignty was not an academic notion but became a model for rulers.
The theoretical effort made by Bodin activated a process of social change, leading to new forms
of political arrangement. The concept rose together with that of sovereignty as deeply
interconnected. The feature of perpetuity of sovereignty was accepted, unlike the other two. But a
great merit of Bodin was the starting of the process of secularization of the concept of sovereignty
(partially because its absoluteness was restricted by divine natural law), which was fully
accomplished by Hobbes.

Sovereignty after Bodin

After Bodin, the feudal system gradually declined in all Europe, without ever being formally
abolished. On the conceptual level, this led to constant adaptation of Bodin’s definitions to fit
existing conditions. Sovereignty had to be invoked even when powers had not yet been
concentrated into a unified public authority or, as in the Reich, this could not even be attempted.
The result was, for example, the divisibility of sovereignty, which Bodin had rejected.

Jean Bodin is the first modern theorist of sovereignty, however he still belongs to the classical
world, which sees the world as something ruled by a natural juridical order which comes from
God, so sovereignty is absolute but still relative to the one of God. The three most relevant
theorists of sovereignty after Bodin were Hobbes, Locke and Rousseau. Sovereignty has been
interpreted in different ways from the Middle Ages to those theorists, but there is not a modern
and unique conception of it.

Hobbes

75 years after Bodin’s work, Hobbes published his masterpiece: for him, born during religious
wars, strong sovereignty was necessary to ensure peace and order. He agrees with Bodin on the
fact that sovereignty is essentially law making (great novelty especially for Great Britain), despite
the existence many other powers. Moreover, he shares all the three features of sovereignty, but
his conception of absoluteness is different. To understand this, we have to recall the premises of
both authors. For Bodin, order is natural and pre-given, being inscribed in the structure of history:
with the civil war in France, Bodin’s goal was restoring natural order rather than defining a new
one. For Hobbes, the state of nature is dominated by disorder and human beings are dominated
by the search for power and therefore by a disposition to conflict. Hobbes’ goal during the English
civil war was not re-establishing natural order but establishing a new artificial order in society. The
state is not the result of a spontaneous process, yet it results from a voluntary and consensual
choice of free and equal individuals. Hobbes used the idea of social contract, popular in the
Protestant world, so in some respects we could argue that Hobbes combined Bodin’s theory of
sovereignty and Protestant theory of contractual legitimacy. However, for Calvinist intellectuals
such as Althusius, the traditional idea of popular sovereignty led to the justification of resistance
(legitimate sovereign: if he does not respect the contract, people have the right to resist), while
Hobbes refuses this by introducing some elements of Bodin’s theory (denial of resistance).

Hobbes makes a further step in the process of secularization of sovereignty. He is not interested
in seeing the sovran as a physical person, since he believes that the artificial and legal person of
the State is the only real sovran. He identifies the State as a juridical person that can act as a
physical one > the rights of the individuals in the state of nature are transferred to the juridical
person of the State after the social contract, which however works only if there is a physical
person (a representative) which practically rules.

The main difference between Hobbes and Bodin lies in their conception of the Natural order, seen
as an actual order by Bodin and as a disorder by Hobbes.

Moreover, according to Hobbes, the State represents the people’s will: he uses the contractarian
justification of the state in order to eliminate the limits to sovereign power, which becomes
absolute (with no juridical limits). In the social pact, the individuals have surrendered their
individual rights to the sovran. However, even if it is absolute, the sovereign power is not arbitrary
because laws are the necessary outcome of a collective rationality realizing the supreme political
values which are peace, order and security > in a few words, the sovran cannot make “unlawful”
laws or arbitrary ones, since they are based on a rational thought. With them, each individual can
flourish and gain more profit. Finally, Hobbesian one is not a top-down justification, but a
secularized justification from below.

Locke

Locke is part of the liberal political tradition. He shares with Hobbes the device of the contract,
but his goal is very different. He is skeptical of the potential absolutistic feature of sovereignty and
the distrust for the concept is general added also to a reluctant use of the “sovereignty” word
itself. Indeed, he thinks that in the civil state there is not a real sovereignty. He prefers the term the
“sovereign power” to “supreme power”, which is considered by him as the supreme one because
it is representative to the people, so there is a implicit acceptance of the sovereignty of the
people: the supreme power is such because it belongs to the people. This supreme power has the
following characteristics:

Perpetual, if we refer to institution, but it is not perpetual if we refer to people;

Divisible, because the legislative function is shared by the king and the parliament. He theorizes
the separation of power (legislative which contains also the judicial power; executive; federative
power, which is a power of external policies for war against other states).

Not absolute, but limited by Natural Rights, because in Locke’s Civil State individuals do not
alienate their natural rights to the sovereign (≠ Hobbes).

The goal of Locke is a State which is able to guarantee not only security but also freedom, that is
why people maintain their natural rights (including the one of property). As a consequence, if the
State violates people’s natural rights, they have the right to resist (≠ Bodin, Aristotelian model
since it sees everything as created by Nature). People can actually resist because they are just
aggregated in a fictitious architecture which is the State.

Rousseau

For Rousseau, the goal of the civil state is to guarantee both the immunity of the State, peace,
security, order and emancipation. Freedom - in opposition with Locke’s thought - is conceived as
positive freedom. He summarizes this foal in a famous passage of the Social Contract:

«To find a form of association that may defend and protect with the whole force of the community
the person and property of every associate, and by means of which each, joining together with all,
may nevertheless obey only himself, and remain as free as before.’’ Such is the fundamental
problem of which the social contract provides the solution». Jean-Jacques Rousseau, The Social
Contract (1762)

To achieve this goal of freedom and security, Rousseau theorized a perpetual, indivisible,
theoretical (no physical person = Hobbes) and absolute power. He thinks that people are
theirselves sovereign in the State of Nature and this remains so also after the Social Contract:

«Sovereignty cannot be represented for the same reason that it cannot be alienated; it consists
essentially in the general will, and the will cannot be represented; it is itself or it is something else;
there is no middle ground. The deputies of the people, then, are not and cannot be its
representatives; they are only its agents and can conclude nothing definitively. Every law which
the people in person have not ratified is invalid; it is not a law». Jean-Jacques Rousseau, The
Social Contract (1762)

There is a critical point against Locke because for him the legislative power is the supreme one
because it represents the people, while for Rousseau representation is impossible, because it
implies alienation of power and this, for him, is wrong. According to Rousseau, sovereignty is a
the active and indivisible aspect of a community and cannot be delegated to other representative.
The community constituted by the social contract is a community where its members are at the
same time direct sovereigns citizens subdued to a law, but the law is created by themselves. This
sovereign power is more powerful in the term of absoluteness than the one of Hobbes, because
according to Rousseau all the natural rights are alienated in favor of the realization of the State in
which everyone is subject and object at the same time.