Sovgn - Jstor - My Find

Jean Bodin on Sovereignty
Author(s): Wm. A. Dunning

Source: Political Science Quarterly, Vol. 11, No. 1 (Mar., 1896), pp. 82-104
Published by: The Academy of Political Science
Stable URL: https://www.jstor.org/stable/2139603
Accessed: 24-03-2021 12:48 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
The Academy of Political Science is collaborating with JSTOR to digitize, preserve and
extend access to Political Science Quarterly
This content downloaded from 171.76.32.143 on Wed, 24 Mar 2021 12:48:29 UTC
All use subject to https://about.jstor.org/terms
JEAN BODIN ON SOVEREIGNTY.
WITH SOME REFERENCE TO THE DOCTRINE OF THOMAS

HOBBES.
THE political and legal philosophy of England since Ben-

tham has done much for the fame of Thomas Hobbes.
Reverential hands have placed the sage of Malmesbury on a
pinnacle where his peculiar genius may receive its due honor.
It was a characteristic freak of fate that committed to Austin
and Molesworth and Grote, chiefs of modern radicalism, the
task of securing proper recognition for the most resolute
defender of absolute monarchy. The work, however, was well
done, and to-day English politics and jurisprudence alike
look to Hobbes as their philosophical progenitor. His devo-
tion to the cause of monarchy is justly regarded as accidental
rather than essential in his general theory. Quite apart
from this incidental feature, the solid and enduring sub-
stance of his system is his doctrine of sovereignty-of the
ultimate nature of political and legal authority. The mathe-
matical precision of his analysis in this field forms a most
striking contrast to the confused thinking of most of his
contemporaries, and the English school of positive law has
done little more than develop the conceptions which he clearly
defined.
The veneration of Hobbes by his countrymen is thus jus-
tifiable. But though his work in the development of political
science was great and significant, it is quite wrong to suppose
that the history of the theory with which his name is associated
begins with him. Thoughtful Englishmen nowadays sometimes
concede the insularity of their national character. It is this
quality, probably, that accounts for the common neglect of
Hobbes's continental forerunner. The same tendency is at
work in the common ascription of the theories of the social
contract and of popular sovereignty to the writers of the Puri-
JEAAT BODIN ON SOVEREIGTY. 83
tan revolution in England. As a matter of fact, these ideas

played a great r6le on the Continent seventy-five years before
they assumed prominence in Great Britain.' The Anglo-Saxon
spirit, however, is not historical. The applicability, not the
origin, of political ideas, has for it the greatest interest. It
would not be rash to assert that a majority of intelligent and
ordinarily cultivated Americans believe that Thomas Jefferson
invented the theory of natural liberty and equality which is
expressed in the preamble to the Declaration of Independence;
and probably George III would get an easy recognition as the
leading exponent of the theory of absolute monarchy. The his-
tory of political theories, as a fruitful branch of philosophical
general history, has not yet received much attention from Eng-
lish-speaking peoples. Professor Pollock's excellent but inade-
quate History of the Science of Politics,2 is the only systematic
work in the language that I know of. Sketchy as it is, however,
it opens up in every direction vistas that lead the reader far
beyond the history and the literature of England. Not the
least important of its suggestions is this: that in the religious
and political chaos of the Continent, and especially of France,
during the sixteenth century, were moulded into form both the
theory of absolute monarchy and that of popular sovereignty.
England under the Tudors had the practice, but not the theory,
1 Cf. Professor H. L. Osgood, "The Political Ideas of the Puritans," in the

POLITICAL SCIENCE QUARTERLY, VI, I (March, I89I). It is by no means
intended to intimate that these ideas cannot be traced farther back than the
sixteenth century. Sir Robert Filmer, whose Patriarcha Locke and the modern
Zeit,geist have combined to render rather ridiculous, was yet on solid historical
ground when, speaking of the theory of popular sovereignty, he attributed its
development to the schoolmen, " who, to be sure to thrust down the king below
the pope, thought it the safest course to advance the people above the king"
(Patriarcha, I, I, end). And the influence of the classical writers in moulding the
theories of the schoolmen is well known. For the early history of the social-
contract idea, cf. Mr. D. G. Ritchie, in this QUARTERLY, VI, 656 (December, I891);
also in his collected essays entitled Darwin and Hegel (Sonnenschein and MIacmillan,
I893).
2 Macmillan, I890. This little sketch of 126 small pages, covering the whole
field down to modern times, presents a significant contrast to Janet's two-volume
Histoire de la Science Politique, which ends with the eighteenth century, to
Bluntschli's excellent Geschichte der Neueren Staatswissenschaften, and to the
encyclopadic work of von Mo}l.
84 POLITICAL SCIENCE QUARTERLY. [VOL. XI.
of absolute monarchy. Hobbes completed a rational theory

just as the practice finally ended. In France the Huguenot
writers developed the theory of popular sovereignty which
triumphed in England; but when order came in their own
land the political question was settled on the lines of absolute
monarchy. And the writer who formulated the theory which
thus gained practical ascendency bore the name of Jean Bodin.
In this article I propose to examine some of the more promi-
nent features of Bodin's political thought, and particularly his
theory of sovereignty. In comparing his views with those of
Hobbes a sufficient resemblance may appear to attract atten-
tion. But it is not at all necessary to conclude that the
Englishman slavishly followed the earlier writer. A very
superficial knowledge of Hobbes's intellectual equipment will
suffice to absolve him from the suspicion of subserviency to
the thought of another; and the differences between the two
men in method and in general philosophic feeling are as
marked as the similarity in some of their conclusions. The
objective political conditions amid which they lived, however,
were in many repects similar, and conspired to lead them to
the same solution for their respective problems. Hence, from
different starting-points and by different routes, the two
reached the same goal. But Bodin preceded Hobbes in time;
and it is no discredit to the latter to conjecture that the work
of the former played some part in determining the type of
his philosophy.
The dates which mark the limits of Bodin's life, 1530 and
1596, suggest at once the turmoil of his political environment.
It was the period that witnessed the extinction amid imbecility
and crime of the house of Valois. The forces of feudalism;
revived under declining royal authority, and those of religious ani-
mosity, stimulated by the Reformation, reduced France to anar-
chy. Imminent or actual civil war was for four decades the pre-
vailing condition. It was the time of the Guises, of Catherine de
No. i.] JEAN BODIN ON SOVEREIGNTY. 85
Medici, of St. Bartholomew's, and of the League. French
history at this period presents the Gallic version of the Wars
of the Roses and the Puritan revolution. France combined
the outbursts which England separated by nearly two centuries.
In the civil and religious strife of the times, Bodin was fitted
neither by character nor by training to be a violent partisan.'
His temperament was altogether scholarly and philosophical.
So far was he from sharing in any of the religious prejudices
which played so large a part in the prevailing troubles, that it
is not known to this day precisely what his creed was.2 He
was educated as a lawyer, but lacked the spirit of the practi-
tioner. Seeking his fortune at Paris (he was born at Angers),
he seems to have had no success at the bar; but his first
published work3 brought down upon him promptly the wrath
of no less a personage than Cujas, the acknowledged leader of
French jurists at that time. For Bodin, regarding law from the
standpoint of universal history, was outspoken in criticising
the exclusive study of the Roman law which was characteristic
of his day; and Cujas was scandalized at his heresy. Bodin's
ability soon brought him into connection with the court,
and most of his life was spent in the public service. Fully
informed as to the forces at work in the political conflicts of
the time, he set himself resolutely against all disintegrating
tendencies. With the Chancellor L'Hopital, and the other
distinguished thinkers who came to bear the party name of
Les Politiques, Bodin sought to restrain every faction, whether
Catholic or Huguenot, whether Guise or Bourbon, and to
1 All desirable information as to the personality of Bodin, as well as an admira-

ble analysis of his works and of the political theories of his contemporaries, may
be found in the exhaustive work of Henri Baudrillart, J. Bodin et son Temps
(Paris, I853).
2 The inconveniences of the philosophical attitude in his day are illustrated by
the fact that Bodin was assailed at different times as a Catholic, a Calvinist, a
Jew, a Mohammedan and an atheist. His Hleptaplomeres is a remarkable work,
in the form of a dialogue between representatives of seven religious and philo-
sophical creeds, with a strongly theistic tendency. Cf Baudrillart, p. I90.
8 Methodus ad facilem Ilistoriarum Cognitionem (I 566). The work embodies
in outline a philosophy of law and a philosophy of history. Its general lines are
those of Montesquieu's Esprit des Lois.
center authority in the monarch. The Machiavellian methods

of Catherine de Medici and her infamous offspring long ren-
dered impracticable the policy of the moderates; but it was to
the latter that was due ultimately the accession of Henry IV.
In the great mass of literature which the civil wars called
forth there was rarely to be found any defense of absolute royal
power. Huguenots and Catholics alike proclaimed in vehement
terms the dogmas of popular sovereignty and tyrannicide. The
criteria of tyranny were, of course, contradictory. To the
Calvinist the plotting of St. Bartholomew's was a most conclusive
test; to the Papist, the desertion of the League. Equally
diverse and confusing were the theories as to the authority
which should act in decreeing the deposition of the tyrant.
Was this power in the general body of his subjects, in the
privileged classes, in the estates, in the parliaments, in foreign
rulers, or in the pope? Each of these solutions had its
advocates, but none of them carried conviction beyond a
relatively small circle of supporters. The times were not
suited to close logic and exact thinking. Controversy, not
philosophy, was uppermost in men's minds; passion, not reason,
was the animating force. It was amid the chaos of thought and
feeling which this literature reveals that Bodin's Republzi
appeared, clearly distinguished from its contemporaries by the
philosophic serenity of its spirit, the scope of its learning, the
precision of its analysis and the exactness of its logic. The
book is characteristic of its author. Bodin, like Hobbes sixty
years later, could find no firm footing in the theories of the
factions. He felt the need of a system that should embody
somewhere a clear and unquestionable source of authority.
His historical and philosophical training furnished him with a
method; his study of Aristotle suggested the outline of his
work; his juristic training and experience guided him in the
detection and elaboration of refined legal distinctions; and
the necessity of the times dictated his triumphant presentation
of an exact theory of sovereignty.'
1 The practical ends that Bodin had in view are very clearly stated in the
dedicatory preface of his Republic.
No. I.] JEAN BODIN ON SOVEREIGNVTY 87
One need only recall that Hobbes's De Cive appeared in

I647 and his Leviathan in i65i, to realize how closely the
general conditions amid which he wrote paralleled those that
surrounded Bodin.1 English and Scotch Puritans were declaim-
ing as vigorously against tyranny as had the Huguenots before
them, and were even more vigorously resisting the tyrant; the
Parliament at London was imposing practical restrictions upon
the monarch more effectively than had been done by the
French Estates-General; and in the literature of the time
there was no less of passion and no more of clear-cut and
generally accepted doctrine than there had been at the time of
St. Bartholomew's. Hobbes published his political treatises
while in exile. The meeting of the Long Parliament had been
too much for his none too steady nerves, and he had gone im-
mediately to France, "the first of all that fled," as he himself
candidly confesses.2 In Paris he lived in close relations with
the royalist colony, and for a time acted as instructor to the
future king, Charles II. Like Bodin, thus, he was identified
with the royalist party in a time of civil dissension. Like
Bodin, he wrote his philosophy of politics for the explicit pur-
pose of attaining exactness in the conceptions of state and
sovereignty.3
But when we consider the philosophical methods of the two
writers, we are confronted with the widest possible divergence.
In Bodin appears the lineal successor of Aristotle and Machia-
velli and the forerunner of Montesquieu, -the thinker who
seeks from the results of man's experience in social and political
life to generalize the principles upon which that life depends.
The pages of the Republic are crammed with historical lore
from every age and clime, and the science of the state appears
in the fullest sense as an inductive science. Hobbes, on the
other hand, is thoroughly imbued with the spirit that brought
1 Though Hobbes seems to have thought out the general principles of his
political philosophy before the civil war in England, the precise formulation of
his theory was undoubtedly influenced by the events of that war. Cf. article
"Hobbes," by Prof. Croom Robertson, in Encyc. Brit., gth ed.
2 Works, Molesworth's edition, 1840, IV, 414.
8 Cf. introductory letter to the Earl of Newcastle, Works, vol. iv.
forth in his day such astonishing results in physics and mathe-

matics. To him geometry was the only true science ; 1 and
the exactness of its method and conclusions could alone satisfy
his mind. Accordingly the Leviathan reveals no such array of
erudition as swells the volume of the Republic. There appear
instead a series of definitions in which the fundamental con-
cepts of science are formulated and distinguished with aston-
ishing acuteness; and from these depends a chain of deduction
so close and cogent as to bear the reader helplessly to the
philosopher's conclusions. The critic who seeks to assail the
system of Hobbes at any point in its development must be
bold indeed. Like Euclid, he can be attacked only in his
premises. His political writings are quite bare of historical
references. He rests the success of his theories wholly on the
intellectual conviction that his abstract reasoning about human
nature must effect; while Bodin depends upon the interpreta-
tion of the concrete facts of man's experience.
At one point the two philosophers come on common ground,
and that is, in their position with reference to the use of
authority. Both are true representatives of the Renaissance,
and so have great contempt for the methods of the schoolmen.
Bodin complains of the hopeless diversity of views among
those who have written on politics, and concludes that it is not
worth while to waste time in weighing authorities.2 Hobbes
never loses an opportunity to express his disdain for the
schoolmen, and indeed for any one "who takes up con-
clusions on the trust of authors, and doth not fetch them from
the first items in every reckoning, which are the significations
of names settled by definitions."3 Those who depend on
authority may believe, but they cannot know.
1 " Geometry, which is the only science that it hath hitherto pleased God to
bestow on mankind."- Leviathan, ch. iv.
2 " Quaerendum putavimus, non quid quisque dixerit aut senserit, quantaeque
auctoritatis fuerit, sed quid rationi convenienter posset et sententiae suae dicere."
De Republica Libri Sex, Praefatio (Francofurti, I641).
8 Leviathan, ch. v, et passim. Hobbes had great confidence in reflection as
contrasted with reading. He said that if he spent as much time as others did in
reading, he would be as ignorant as they.
No. I.] JEAN BODIN ON SOVEREIGNTY. 89
II.
In laying the foundations for his discussion of sovereignty,

Bodin follows pretty closely the lines of Aristotle's Politics.
The social basis and philosophical end of the state; the analysis
of the family and the distinction between family and state;
the characteristics of paternal authority and the institution of
slavery, -are all treated in a manner that strongly suggests
the Greek precursor. But it cannot be said that Bodin is sub-
servient to the Stagirite in his conclusions. He is too true to
the Aristotelian method to attain Aristotelian results. In
philosophy based on history, the accident of chronologry must
profoundly affect different systems. The later writer has
necessarily more history from which to generalize. Nineteen
centuries separated Bodin from Aristotle - centuries replete
with striking social and political phenomena. That any of the
Greek's principles could be approved by the Frenchman, is
a great tribute to the former's genius ; that so many were
modified or rejected, is the surest basis for the renown of the
latter. The influences which are most apparent where Bodin
diverges from Aristotle are those of Roman history and law,
Jewish tradition and recent European history.
It is not my purpose to dwell on all the interesting features
of the Republic outside of the doctrine of sovereignty. Some
of the more striking may be mentioned in passing. The
author formtulates at the outset a definition of the state (res-
pueblica) which suggests the most conspicuous characteristics
of his philosophy. "The state is an aggregation of families
and their common possessions, ruled by a sovereign power and
by reason." I In this is implied, what the later chapters elab-
orate, that the basis of the state, both in historical and in logical
development, is the family; that a distinction must be drawn
between interests that are common and those that are not;
that a supreme power is essential to the idea of the state; and
that government is conditioned by a moral end. By rational
1 " Respublica est familiarum rerumque inter ipsas communium, summa potes-
tate ac ratione moderata multitudo." Lib. i, cap. i.
go POLITICAL SCIENCE QUARTERLY. [VOL. XI.
rule he means rule in accordance with that natural law which

embodies the dictates of justice. The sway of reason, rather
than appetite, he regards as indispensable to distinguish be-
tween a state and a pirate band. In treating in detail of social
relations, he brings to bear against the theories of communism
not only the Aristotelian arguments, but also the recent prac-
tical results of Anabaptist extravagances in Germany. Family
relationships are closely analyzed, with a leaning towards a
conception of marital authority that has more kinship with the
rights of thepaterfamilias in Roman law than with the " con-
stitutional government" of the Aristotelian husband. Finally,
Bodin creates a distinct place for himself in the history of
social evolution by an elaborate assault on the moral and philo-
sophical foundations of the institution of slavery.'
As between Hobbes and Boclin, it would not have been
strange if the latter, rather than the former, had conceived of
the state as having its origin in a deliberate act of volition on
the part of a number of individuals. The contract theory of
the state was so direct an outgrowth of the revival of Roman
law in Europe that a jurist of the sixteenth century might very
naturally have adopted it. But in Bodin's day the contract
idea was the weapon almost exclusively of the factions whom
he was opposing; and this fact, combined with the historical
bent of his temperament, turned him to the Aristotelian con-
ception of the state as a phenomenon developing more or less
unconsciously out of the inherent qualities of man and his
environment.2 By the time Hobbes wrote, the contract theory
had become so ingrained in all political philosophy that to
avoid it was as impossible as it is to-day to avoid the influence
of the theory of evolution. The Englishman, therefore, took
it up, but so modified it as to render it serviceable to absolut-
ism as well as to what he considered anarchy.
It is in the sixth chapter of the first book of the Republic,
1 Lib. i, cap. v.
2 Strictly speaking, it is society, rather than the state, that Bodin conceives as
thus originating. The distinction between the two is vaguely present in his
mind. The objective fact in the formation of historical governments he holds to
be vis major. Op. cit., I, vi.
No. I.] JEAN BODIN ON SOVEREIGNTY 9I
where Bodin takes up the consideration of citizenship, that

the character and importance of his theory of sovereignty
begin to appear. The confused and contradictory criteria of
citizenship in Aristotle's Politics are rejected, especially the
assertion that participation in political rights (e'zCcX lad
&Kada-T-7S) is a prime characteristic of the citizen. A citizen,
says Bodin, is "a free man who is subject to the sovereign
power of another." " < Free " excludes slaves, but not women
or those under paternal authority. Excepting the servile class,
then, the population of a state falls into two primary divisions,
sovereign and citizens. In the latter class there may be, with
respect to one another, an infinite variety of rights, privileges
and immunities of individuals; but with respect to the sove-
reign, all stand in precisely the same relation, namely,
subjection. It is not necessary to follow Bodin's exhaustive
examination of the law of antiquity and of later centuries to
catch the drift of his purpose. He is very ready to concede
that the peer may have different rights and privileges from
the townsman (bourgeois), the townsman from the rustic and
from other townsmen; but he feels that the aggregation of
social classes which feudalism has developed can only attain
the unity and order of the true state life through a power
dominating and regulating all alike. Subjection to such a
sovereign power is the sole test of citizenship, and the recog-
nition of a common sovereign is the sole criterion of a state
(respublica).
Like many of his predecessors in political philosophy since
Aristotle became the chief authority in Europe, Bodin is
troubled to adapt to the great feudal monarchies of the six-
teenth century the principles which the Greek derived from
the homogeneous city-state. He is writing in the time of
transition from the feudal to the national state. He is con-
scious of the importance of common customs and laws in
determining political relations, but as a loyal subject of the
French monarch, he cannot at all concede that such community
is a basis for political independence. He distinguishes, there-
I Liber homo qui summae alterius potestatis obligatur. I, vi.
92 POLITICAL SCIENCE QUARTERL Y. [VOL. XI.
fore, between the state (civitas) and the commonwealth (res-

publica) much as it is customary at the present day to distinguish
nation from empire. The respublica consists of citizens subject
to the same sovereign power,
tametsi moribus, legibus, institutis ac infinita gentium varietate

inter se differant. Si vero cives omnnes iisdem legibus utantur, non
solum eadem respublica, sed etiam civitas eadem est; tametsi cives
huc illuc per vicos, urbes et municipia dispersi a se ipsis sedibus
sejungantur. . . . Civitas plurium vicorum ac urbium cives iisdem
legibus ac moribus complexa moderatur.1
Throughout the chapter it is possible to discern in Bodin's

thought the influence of Greek, Roman and medieval concep-
tions. The Hellenic 7rodxtv and the Roman urbs and mnunicipium
included villages (vici); the feudal state, after the rise of the
towns, included many urbes; and Bodin's rcspub/ica includes
all these earlier forms.
III.
In the eighth chapter of Book I, Bodin takes up the formal

discussion of sovereignty.2 The idea is embodied, as we have
already seen, in his definition of state. He defines the concep-
tion thus: Sovereignty is supreme power over citizens and
subjects, unrestrained by the laws." 3 Considering that such
a definition is absolutely essential to the idea of the state,
Bodin assumes an air of pardonable pride in declaring that
neither philosopher nor jurist has ever before propounded one.
In the development of his definition, it is laid down that
authority which is truly sovereign must be not only supreme,
but perpetual -that is, without limit of time. Thus the
Roman dictator, with all his power, fell short of sovereignty
through the limitation of his term. Similarly any official
entrusted with supreme authority for the accomplishment of
some specific purpose is less than sovereign. The Decenzviri
1 De Republica, I, vi.
2 For a good account of the earlier history of this conception, see Gierke,
Johannes Althusius, pp. 123 et seq.
3 Majestas est summa in cives ac subditos legibusque soluta potestas.
No. I.] JEAN BODIN ON SOVEREIGNTY 93
Zegzun ferendarum were but the commissioners of the sover-

eign populus Romanus. Regents, viceroys and such dignitaries
fall into a like category. Yet Bodin takes care not to carry
the idea of " perpetual " too far. He is not ready to exclude
the conception of monarch from the scientific treatment of
politics. "But if," he says, "we construe perpetual power as
that which will never have an end, sovereignty will have no
existence save in the popular and the aristocratic state ; since
the people [only] is immortal, unless, indeed, it be utterly
exterminated." The life tenure of supreme power, therefore,
constitutes sovereignty in an individual. Sovereignty in this
sense may be bestowed by a people on an individual, or be
transferred from one individual to another, and in either case
it is equally valid, so long as it is free from condition.
Just at this point there is obvious one of the gaps in Bodin's
theory. He is at some pains to establish the alienability of
sovereignty- that long and hotly contested point ; but he
omits to account philosophically for the possession of that
which he holds may be transferred. He is very near to a
realization and a solution of the problem when he reflects on
the immortality of "the people," as compared with any indi-
vidual. He might have distinguished between the eternal
principle of order and authority which is implied in the very
conception of an immortal people, and the power to issue
and enforce specific commands which is but an outcome of
that principle. But here, as in so many other parts of his
work, Bodin is preoccupied with his purpose of justifying abso-
lute monarchy; and he misses the chance to pass from legal
to the broader grounds of political sovereignty.
The supremacy implied in majestas is set forth by Bodin
with an abundance of analysis and illustration. The essence
of the idea is embodied in the words " legibus so/uta." Sover-
eignty has its chief and characteristic function in the making
of laws.' From the binding force of these laws, the sovereign
is by the nature of the case free. But not from all laws. " If
1 Summum jus majestatis in eo potissimum versani, cum non modo singulis sed
etiam universis leges dantur iisque imperatur.
we should define sovereignty as a power legibus omnibus solu-

tam, no prince could be found to have sovereign rights; for
all are bound by divine law, by the law of nature and by that
common law of nations which has its source in these." This
distinction is consistently observed by Bodin. His legislator
is the legislator of the jurist, not of the theologian or of the
moral philosopher. He assumes, but nowhere closely defines,
the leges divinae, naturae etgentium. Those are conceptions
beyond his precise sphere, always controlling, indeed, but from
a higher plane, the phenomena with which he wishes specifi-
cally to deal. The sovereign, like the subject, is bound by the
law of God and of nature, but his obligation in this respect is
to God, by whom it will be enforced.
As to the civil law - the law of the land - the sovereign's
will is the ultimate source of its every precept, and the will is
free. No statute, whether enacted by himself or by his prede-
cessor, survives a duly signified change of will on the part of
the holder of sovereign power. Bodin is quite explicit in
laying down this fundamental principle, but his subsequent
discussion introduces some important modifications. The law
of God and of nature comes in to determine the answer to
several questions. If a prince (sovereign) has sworn to observe
the laws of his fathers, is he bound thereto ? Not, says Bodin,
if he has sworn merely with himself; but the obligation is
good if another prince (sovereign) has a recognized interest in
it, or if it is undertaken toward the subjects as a condition of
reigning. Here, however, the force of the obligation arises
not from the oath but from the bona fide contract, which, in
the case of a sovereign, must be sharply distinguished from a
law. The prince, like the private citizen, is subject to the
principles of natural law, among which the keeping of contracts
occupies a high place. Yet when the reason for a pledge has
ceased, the obligation on the part of the prince ipso facto
ceases. Though Bodin does not point it out, the sovereign,
1 Bodin employs the word princeps for " sovereign "; and this usage contr
utes greatly to aggravate the confusion between sovereign and monarch which
has its primary source in the writer's preference for monarchy.
No. I.J JEAN BODIN ON SOVEREIGNTY. 95
under this theory, has a most important advantage over the

subjects in the fact that his decision as to when the reason for
a given pledge has ceased is very likely to be final. That the
author is in some way conscious of difficulty in the practical
working of his principle appears, however, in his declaration
that "well-informed princes do not allow themselves to come
under the obligation of an oath where matters of legislation
are concerned, lest they should not enjoy the supreme power
in the state."
In addition to the keeping of promises, the other principles
of the law of nature operate to hedge about the sovereign.
Especially earnest and explicit is Bodin in the matter of pri-
vate property. The omnipotence of a prince is only imperum,
not domninatus. The author cites approvingly the maxim of
Seneca: Ad reges potestas omnium pertinet, ad singulos pro-
pietas. "Without just cause the sovereign cannot seize or
grant away the property of another." And he cites with a true
lawyer's delight instances in which the French kings have sub-
mitted to the judgments of their own courts in questions
touwChing private property.
It is obviously with a view to guarding against any possibility
of warping his theory to the support of oppressive government
that Bodin dwells with such iteration on the restraints that the
sovereign must find in the divine and natural law. An elabo-
rate distinction between the king and the tyrant is worked out
on this basis.' The king is he who renders to the laws of God
and of nature the same obedience which his subjects render to
him. The tyrant spurns these laws and abuses at his caprice
the liberties and property of his subjects. But the tyrant is
no less a sovereign than the king. Sovereignty is a political
fact, consistin?g only in the possession and exercise of supreme
power; the distinction between true royalty and tyranny rests
1 Lib. ii, cap. i-iv, passim. Bodin actually makes a threefold classification
of monarchies, the characteristic of one class, the Dominatus, being the enjoyment
of property rights (dominium) by the sovereign over the persons and possessions of
his subjects. The same principle of classification is applied rigorously to aristocracy
and democracy also.
on a moral principle, and is determined by the mode of exer-

cising this power.
In addition, however, to the restraints of divine and natural
law, there are evidences in Bodin's thought of other limitations
upon the sovereign which cannot so easily be put in the cate-
gory of moral as distinct from legal limitations. There are
laws in the state which the sovereign cannot touch. His
allusions to these superior rules are far from clear, but they
seem to indicate a somewhat vague notion in the writer's mind
of what we call a constitution. Thus, in discussing the extent
of the sovereign prince's authority in respect to the laws, he
says:
But so far as concerns the laws of empire (leges imperii), since they
are connected with sovereignty itself, princes can neither abrogate
nor derogate them. Of this class is the Salic Law, the firmest
foundation of this kingdom.
In not explaining fully the conception involved in the term

leges imperii, Bodin is again guilty of a serious lapse. His
anxiety to have something in a state more fixed and permanent
than the human will leads him to limit the power legibus
soluta, by leges as well as byjus. But who is the law-maker in
the case of these leges imperii? Bodin might have answered,
consistently with his general theory of the historical origin of
the state: Nature. But this conception of nature would have
been quite distinct from that which lay at the bottom of his
leges naturae, and would have led to multiplied confusion. Or
he might have found the source of these laws in that people,
in whose collective life he sees the only possibility of a per-
petual sovereignty.' But from lines of reasoning that lead in
the direction of popular authority, Bodin's aversion is very
pronounced; a populus in his view is too nearly identical with
a disorderly mob. So his opportunity to elaborate the great
distinction between the constitution-making sovereign and the
ordinary law-making superior was lost. With his exact defi-
nition of the latter, however, he advanced the theory of sover-
1 Supra, p 93.
eignty to a point beyond which a great many writers have not

passed even at the present day.
The failure of Bodin to dilate upon the distinction just
noticed is the more surprising in view of the very elaborate
discussion of the meaning of lex in his treatment of the char-
acteristic rights (jutra) of sovereignty.' The first of these right
is legemn nuiiversis ac singulis civibuts dare. Lex is sharply
distinguished from cdicturm or decreturn. The sovereign makes
law ; the magistrates issue decrees. So the relation of custom
(consucttudo) to law is effectively set forth. It is not true, he
holds, that custom and law are of like character and force, and
that the people, as the source of the one, is on a level with the
prince, the source of the other. Law can abolish custom;
not so the converse :2 custom has no sanction, while sanction
is characteristic of law ; the force of custom is precarious till
the sovereign establishes a sanction, whereupon the custom at
once becomes law. Hence, he concludes, both law and custom
depend on the will of those who hold the sovereign power in
the state. Again, the distinction between lex and jus is noted.
Jus relates to what is just and good, without regrard to any
command ; lex relates to the sovereignty of one issuing a
command.3 In short, law, he says, is nothing, else than a
command of the sovereign. After this, the conception of leges
irperii, above the sovereign will, seems very much out of
place in Bodin's system.
More in keeping with his usually vigorous logic is his analysis
of the forms of state.4 Here his keen analysis leads him to
the presentation of a distinction of the utmost importance
to scientific politics. Adopting, with characteristic criticism
and amendment, the old Aristotelian classification of mon-
archy, aristocracy and democracy, he points out that the
1 Lib. i, cap. x.
2 This apparently doubtful proposition he fortifies by declaring it the duty of
the magistrates to recall into operation laws whose force has been weakened by
custom.
3 Plurimum distat lex a jure: jus enim sine jussu, ad id quod aequum bonum
est; lex autem ad imperantis majestatem pertinet. Lib. i, cap. viii.
4 Lib. ii, cap. i.
98 POLITICAL SCIENCE QUARTERL E [VOL. XI.
essential character of the state is quite different from the

principle of government.' The state may be monarchic and
the government aristocratic or democratic; or an aristocratic
state may be popular in government. Whatever may be
the minor defects in Bodin's conception of sovereignty, it
is clear enough to lead him to this capital distinction be-
tween state and government. The form of the state is
determined solely by the number of those in whom the sov-
ereignty is vested ; the form of government is determined by
the manner in which the administration of the sovereign's
will is distributed among the subjects. There are but three
possible forms of state, according as the sovereignty is in one,
in more than one but less than all, or in all. Writers who
have talked of mixed forms of state have been led astray by
their failure to distinguish state from government. Not in
sovereign power, but in administration can there be such a
joint participation of different elements as to justify the
designation "mixed." A monarchic state has an aristocratic
government when the sovereign monarch confers honors and
offices upon certain classes only ; it has a democratic govern-
ment when honor and office are bestowed on all classes alike.
The early Roman republic was a democratic state with an
aristocratic government. The Athens of Pericles was demo-
cratic in both state and government.
In applying his doctrine to the facts of contemporary state
systems, Bodin strikes a vicious blow at that venerable sham,
the Holy Roman Empire. Tested by his conception of sov-
ereignty, this august body politic is found to be, not the most
exalted of monarchies - indeed, not a monarchy at all, but so
far as it is a simple state, a mere aristocracy.2 Sovereignty is
in the diet, not in the emperor. In respect to the complete
sovereignty of each of the members of the empire, however,
Bodin thinks that it is really more like a confederacy than a
simple state. So far as I am aware, this is the earliest literary
1 Illud admonendi sumus, reipublicae statum ab imperandi ratione distare

plurimum, quod ante nemo quantum intelligere potuimus animadvertit. - Lib. ii,
cap. ii, ad init., et passim. 2 Lib. ii, cap. vi.
exposition of the transformation of the empire, which became

very clear to everybody after the Thirty Years' War.' Eng-
land gives Bodin some trouble in classification. If Parliament
really possesses all the importance that is claimed for it by the
historians, he recognizes the impossibility of describing England
as a true monarchy. But his investigation of incidents in the
Tudor reigns convinces him that ultimate authority is really in
the king, and that accordingly the state is monarchic. A
similar conclusion is reached as to Spain; and France he
treats throughout as a model monarchy of the royal type.
IV.
When we turn from Bodin to Hobbes, we find that the

latter, unlike the former,2 leaves no uncertainty in respect to
the origin of sovereignty. A deliberate act of volition by each
member of a community transfers all his rights and powers to
some person or assembly of persons. In this transfer is to be
found the origin of the body politic, as distinct from a mere
inorganic mass of individuals. In the aggregate of rights and
powers transferred is the essence of sovereignty. Right and
might are in Hobbes fundamentally identical; therefore,
supremacy of the sovereign over the individual springs immedi-
ately from superiority of power. But Hobbes is not content to
start from the mere fact of individual consent as the condition
of political organization. The cause for this consent is sought,
and is found in the instinct of self-preservation. Without
following the philosopher into his ingenious theory of the
"state of nature" and the "war of all against all," his conclu-
sion is that for self-preservation men's reason teaches the
necessity of certain rules, conformity to which is indispensable
to social existence. These rules require, among other things,
the abandonment by the individual of his natural rights, which
1 From as far back as the time of Philip the Fair the lawyers of the rising
French monarchy had scoffed at the pretensions of the emperors; and legal
tradition probably aided Bodin in his criticism. Cf. Poole, Illustrations of
Mediaeval Thought. 2 Ante, p. 93.
IOO POLITICAL SCIENCE QUARTERLY. [VOL. XI.
are identical with his natural powers, the keeping of covenants

(in which alone, according to Hobbes, consists justice), the
exercise of gratitude, forgiveness, equity, etc.' But having
deduced these laws of nature, and formulated them so as to
make them the log-ical basis of the state, Hobbes takes precau-
tions at once to avoid the ambiguities and confusions found in
Bodin at this point.
The greatest improvement made by Hobbes upon his prede-
cessor is undoubtedly to be found in the Englishman's analysis
of the term law. The so-called laws of nature which he has
worked out, are not, he says, really laws, but merely "conclu-
sions or theorems concerning what conduceth to the conserva-
tion and defense" of men. "Law, properly, is the word of
him that by right hath command over others." 2 The ultimate
human right to command is vested in the sovereign by the
contract through which the state is instituted. Civil laws,
then, consist in expressions or other manifestations of the will
of the sovereign, who himself is not bound thereby.3 Divine
law is that which emanates from the will of God. Ultimately
the law of nature may be regarded as divine law, though it is
present to men not directly as a command, but as a body of
principles found out by the reason. A directly revealed com-
mand of God addressed to a particular person or people is law
proper, and is designated as " divine positive law."
Discriminating thus between the different kinds of law,
Hobbes uniderstands and boldly grapples with the difficulties
bound up in the question of interpretation. He will not leave
open here a refuge for the enemies of order. All laws, he
says, need interpretation, particularly the unwritten law of
nature.4 But this latter becomes law proper only when it is
embodied in commands of the sovereign; and for the citizen
the binding interpretation in this case, as in case of civil laws
pure and simple, is that of the sovereign, through his duly
constituted judges. Hobbes has no patience with those who
1 Leviathan, chapters xiii-xv.

2 Ibid., (Morley's edition), pp. 78, 79.
3 Ibid., p. 123 et seq. 4 Ibid., p. i 28.
No. i.] JEAN BODIN ON SOVEREIGNTVTY. 101
look to the moral philosophers for authority as to the law of

nature, or to the commentators as to the civil laws.
The interpretation of the laws of nature in a commonwealth

dependeth not on the books of moral philosophy. The authority of
writers without the authority of the commonwealth maketh not their
opinions law, be they never so true. That which I have written in
this treatise concerning the moral virtues, . . . though it be evident
truth, is not, therefore, presently law. . . . For though it be
naturally reasonable, yet it is by the sovereign power that it is law.'
And again:
When question is of the meaning of written laws, he is not the

interpreter of them that writeth a commentary upon them. For
commentaries are commonly more subject to cavil than the cext, and
therefore need other commentaries; and so there will be no end of
such interpretations.2
Thus the footing which the factions have found in various

interpretations of the moral and the civil law is swept away,
and the sovereign stands triumphant. But there remains one
other hope for the adversaries of absolutism. What if they
could oppose to the sovereign a directly revealed command of
God? Such a command, Hobbes readily admits, must super-
sede all human authority. But could the knowledge of such a
command be independent of human judgment ? If all men, in
the presence of one another, received an identical manifestation
of God's will, that would be conclusive. But when some one
man or body of men comes forward claiming to have received
privately a revelation from God, how shall other men be satis-
fied of its authenticity ? Hobbes can find no adequate answer
to this question, and his solution of the whole problem is
reached on the same lines that have been followed in connec-
tion with the law of nature and the civil law.
In all things not contrary to the moral law, that is to say, to the
law of nature, all subjects are bound to obey that for divine law
which is declared to be so by the laws of the commonwealth.
And the reason of this is simple.
1 Leviathan, p. 128. 2 Ibid., p. 129.
If men were at liberty to take for God's commandments their own

dreams and fancies, or the dreams and fancies of private men, scarce
two men would agree upon what is God's commandment; and yet
in respect of them, every man would despise the commandments of
the commonwealth.'
With logic like this there is no possibility of such confusion

as we have seen in Bodin over the relation of the sovereign to
the Zeges divinae, naturae et gentium.2 Hobbes does indeed
declare in various passages that the sovereign is bound by the
law of nature; but his precise analysis of the source and
character of this law leaves no room for the delusion that the
sovereign's obligation is at all of the same type as that of the
subject. The latter is bound under the terms of the original
contract; but this contract is most carefully framed by Hobbes
so as to exclude the sovereign from any share in it.3 Thus,
while the keeping of contracts is a precept of the law of nature
that affects the subjects, it has no application, so far as they
are concerned, to the sovereign. Again, Hobbes scoffs at the
classification of forms of state according to the relation of the
sovereign to the laws of nature.4 Three forms, and three
only, are logical. The others are merely the expressions of
individual feeling.
They that are discontented under monarchy call it tyranny; and

they that are displeased with aristocracy call it oligarchy; so also
they which find themselves grieved under a democracy call it
anarchy, which signifies want of government. And yet I think no
man believes that want of government is any new kind of govern-
ment; nor by the same reason ought they to believe that the govern-
ment is of one kind when they like it, and another when they dislike
it, or are oppressed by the governers.5
There is obviously no room in Hobbes's thought for any

conception like Bodin's leges irnperii.6 Nor has the English-
man any such respect for private property as is displayed by
1 Leviathan, p. 133.
2 "s The law of nations and the law of nature is the same thing." Leviathan,
p. i6i. 5 Leviathan, p. go.
3 Leviathan, p. 85. 6 Ante, p. 96.
4 Ante, p. 95-
No. i.] JEAN BODIN ON SOVEREIGNVTY. 103
the French writer. To sovereignty pertains " the whole power

of prescribing the rules whereby every man may know what
goods he may enjoy . . . without being molested by any of his
fellow subjects; and this is it men call ' propriety."' I It is a
doctrine that tends to the dissolution of a commonwealth,
"that every private man has an absolute propriety in his
goods, such as excludeth the sovereign." What property a
man holds, he has only from the sovereign.2 On the other
hand Hobbes agrees substantially with Bodin in respect to the
relation of custom to law,3 and in the distinction between the
sovereign and the administrative system, or government.
V.
From the standpoint of pure speculation, it is impossible to

deny that Hobbes's doctrine is more complete and perfect than
that of Bodin. Where the latter, with the caution of the
philosophic statesman, hesitated, the former, with the indiffer-
ence of the exact mathematician, followed the path of his
reasoning to the end. The student of history and law is not
apt to be as confident as the devotee of the physical sciences,
in regard to the availability of abstract formulas for solving
political problems. The hostility aroused by the ethical4 and
1 Leviathan, p. 87.
2 " Where there is no commonwealth there is . . . a perpetual war of every
man against his neighbor; and therefore everything is his that getteth it and
keepeth it by force; which is neither propriety nor community, but uncertainty."
Leviathan, p. I I6.
3 While Bodin, as stated above, looks upon custom as lacking the character
of law until the sovereign signifies positively his will in respect to it, Hobbes
regards the silence of the sovereign as expressing his will. "When long use
obtaineth the authority of a law, it is not the length of time that maketh the
authority, but the will of the sovereign signified by his silence." Leviathan,
p. 124.
4 It must be pointed out, however, that in one important instance criticism of

Hobbes is generally unfair. He is censured greatly for holding that no law, i.e., ex-
pression of the will of the sovereign, can be unjust. He does, no doubt, say pre-
cisely that. But he has so defined justice as to include under the term only part of
the idea usually connoted thereby. Justice, he says, is only the keeping of promises;
and the original contract involved a promise of submission to the sovereign. Dis-
obedience, therefore, is unjust. But this sense of justice involves only what is
I04 I POLITICAL SCIENCE QUARTERL Y
religious doctrines of Hobbes obscured for a century the value

of much that he wrote. Bodin, on the other hand, had great
vogue for a time, though his rational and juristic absolutism
was ill adapted to the appetite of the age which feasted on
the emotional and divine-right doctrine of Bossuet. It was
Montesquieu's great work that brought French thought back
into the methods of Bodin, while Rousseau introduced the
method of Hobbes. But the divergence of the later pair of
writers was much greater than that of the earlier. The whole
effect of Montesquieu's work was to emphasize those elements
in social and political life which are most independent of
human volition, and hence to minimize the significance, if not
to exclude the conception, of absolute sovereignty. Rousseau,
on the contrary, intensified, if possible, the absoluteness of the
sovereign human will as conceirved by Hobbes, and made it the
sole basis of his democracy. W A. DUNNING.
known as commutative justice. Distributive justice is defined by Hobbes under

another name, equity. And the whole criticism falls when Hobbes admits that
the sovereign, while he cannot commit injustice, can commit iniquity. Leviathan,
p. 86.

Sovgn - Jstor - My Find

Uploaded by

Copyright:

Available Formats

Sovgn - Jstor - My Find

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sovgn - Jstor - My Find

Uploaded by

Copyright:

Available Formats

Jean Bodin on Sovereignty

Author(s): Wm. A. Dunning

WITH SOME REFERENCE TO THE DOCTRINE OF THOMAS

THE political and legal philosophy of England since Ben-

tan revolution in England. As a matter of fact, these ideas

1 Cf. Professor H. L. Osgood, "The Political Ideas of the Puritans," in the

of absolute monarchy. Hobbes completed a rational theory

1 All desirable information as to the personality of Bodin, as well as an admira-

center authority in the monarch. The Machiavellian methods

One need only recall that Hobbes's De Cive appeared in

forth in his day such astonishing results in physics and mathe-

In laying the foundations for his discussion of sovereignty,

rule he means rule in accordance with that natural law which

where Bodin takes up the consideration of citizenship, that

I Liber homo qui summae alterius potestatis obligatur. I, vi.

fore, between the state (civitas) and the commonwealth (res-

tametsi moribus, legibus, institutis ac infinita gentium varietate

Throughout the chapter it is possible to discern in Bodin's

In the eighth chapter of Book I, Bodin takes up the formal

Zegzun ferendarum were but the commissioners of the sover-

we should define sovereignty as a power legibus omnibus solu-

under this theory, has a most important advantage over the

on a moral principle, and is determined by the mode of exer-

In not explaining fully the conception involved in the term

eignty to a point beyond which a great many writers have not

essential character of the state is quite different from the

1 Illud admonendi sumus, reipublicae statum ab imperandi ratione distare

exposition of the transformation of the empire, which became

When we turn from Bodin to Hobbes, we find that the

are identical with his natural powers, the keeping of covenants

1 Leviathan, chapters xiii-xv.

look to the moral philosophers for authority as to the law of

The interpretation of the laws of nature in a commonwealth

When question is of the meaning of written laws, he is not the

Thus the footing which the factions have found in various

And the reason of this is simple.

1 Leviathan, p. 128. 2 Ibid., p. 129.

If men were at liberty to take for God's commandments their own

With logic like this there is no possibility of such confusion

They that are discontented under monarchy call it tyranny; and

There is obviously no room in Hobbes's thought for any

the French writer. To sovereignty pertains " the whole power

From the standpoint of pure speculation, it is impossible to

4 It must be pointed out, however, that in one important instance criticism of

religious doctrines of Hobbes obscured for a century the value

sole basis of his democracy. W A. DUNNING.

known as commutative justice. Distributive justice is defined by Hobbes under

You might also like