Jean Bodin's ‘Logic of Sovereignty’
| Published date | 01 June 1968 |
| Date | 01 June 1968 |
| DOI | http://doi.org/10.1111/j.1467-9248.1968.tb00424.x |
| Subject Matter | Article |
JEAN
BODIN’S
‘LOGIC
OF
SOVEREIGNTY’
J.
U.
LEWIS
University of Windsor, Ontario
I
IN
our age people more often than not think
of
law as the ‘command of
a
definite will
or
group
of
wills endowed with legitimate authority’, and of
the limits of law as being set
by
the volitions of men, expressed either
formally in a constitution or
by
the ‘unchartered limitations of public
consent’.l This view is reflected in the ‘authoritarian model of law’,2 and can
be traced to the Roman dictum that ‘the preference of the ruler is what has
the force of law.
.
.
.’3
So
widely is it accepted as an accurate and illuminating
account of what law is that in some quarters, especially where analytical
jurisprudence with its attendant disinterest in legal history holds sway,4 the
notion that legal authority
is
to be anchored to the obligation to command
what
should
be commanded-that authority is to be exercised
sub
lege,
as
Bracton put it5-is thought to be incomprehensible. In many minds the
phrase
sit
pro voluntute ratio,
which explains that the sovereign’s will must
coincide with reason, is thought to have been wrongly quoted; that what one
meant to say was
sitpro rutione
voluntus-the will of the sovereign takes the
place of reason.6
The predominance of voluntaristic theories of law, however,
is
a relatively
modern phenomenon. Indeed it was only with John Austin in the nineteenth
century that the balance shifted decisively in favour
of
such theories.7
For
throughout the Middle Ages and well on
up
into the modern period the
argument over whether law is an act
of
will
or
rule
of
reason was evenly
fought.8
1
E. Lewis,
Medieval Political Ideas
1.
a
See
A.
P. d’Entreves,
The Notion of the State
(Oxford, 1967), Chap.
8.
8
C.
J.
Friedrich,
ManandHis Government: An
EmpiricalTheoryofPolitics
(N.Y.,
1963), p. 268.
4
‘.
.
.
the lawyer’s, or at any rate the English lawyer’s, professional training tends to pre-
dispose him to look at the past from an unhistorical standpoint.’
J.
W.
Gough,
FundamentaILaw
in English Constitutional History
(Oxford, 1961. 1st impression, 1955),
p.
6.
6
. . .
rex non debet esse sub homine sed
sub
Deo et sub lege, quia lex facit regem. De Legibus et
Consuetudinibus Angliae.
I, 39.
0
B. de Jouvenel,
Sovereignty
(Cambridge, 1957), pp. 209-11.
7
Although
of
course, the groundwork
was
laid earlier--e.g., by Hobbes. Cf. Jolowicz,
Lectures
on
Jurisprudence
(London, 1963), pp.
ff.
on
the beginnings of the idea of sovereignty in the
Middle
Ages.
*
On the ‘Eclipses and revivals’
of
natural law and its rival theories see
A.
Brecht,
Political
Theory
(Princeton, 1959). pp. 138
ff.
Cf. Davitt,
The Nature ofLaw
(London, 1953), Intro-
duction,
pp.
219
ff.
Political
Studies.
Vol.
XVI.
No.
2 (1968,206-222)
J.
U.
LEWIS
201
Among the first thinkers in the modern era to grapple with the difficulties
inherent in this issue was the French lawyer and statesman, Jean Bodin,l
called ‘the most powerful of French and perhaps all political thinkers of the
[sixteenth] century’.2 There is some dispute as to how great his theoretical
innovations actually were, but
a
balanced assessment seems to be that in his
major work,
The
Six
Books
of
the
Commonweale,
the thesis that the king
is
above man-made law was for the first time fully and-although there is
dispute about this, too-systematically developed.3 Some ‘civilians’4 and
even some theologians between the ninth and thirteenth centuries5 had, it is
true, also said that law was the expression of a superior will; but in A.
J.
Carlyle’s words, ‘we think it may properly be said’ that Bodin’s treatment of
the matter ‘represents a much deeper and more dogmatic enunciation of the
conception’ of sovereignty than had before been given.6 The idea of sover-
eignty was not new; but what Bodin did to and with it was. His work was at
once the ‘culmination of the claims of “imperialist” writers throughout the
Middle Ages who had sought to vindicate the position of the secular ruler
as
independent of ecclesiastical authority’7 and also the place in which the
idea of sovereignty was lifted out of the ‘limbo of theology in which the
theory of divine right left if8 and placed within the context of secular con-
stitutional theory.9 Perhaps the closest any thinker came to Bodin in this
respect was Marsiglio of Padua, referred to by Clement
VI
as the ‘worst
1
For biographical data see
K.
D.
McRae’s introduction to
The Six Bookes ofthe Common-
weale
(facsimile reprint
of
the English trans. of
1606,
corrected and supplemented by comparison
with the French and Latin editions. Cambridge, Mass.,
1962).
Cf. Franklin,
Jean Bodin and the
16th-Century Revolution in the Methodology ofLaw and History
(N.Y.,
1963),
1
ff.;
and
J.
W.
Allen,
A
History
of
Political Thought in the Sixteenth Century
(N.Y.,
1960
(Univ. Paperbacks);
1st edn.,
1928),
pp.
394-9.
The McRae edition is used throughout this paper with spelling and
syntax, except occasionally, modernized in passages quoted.
2
Allen, op. cit., p.
394.
Figgis ranks him behind Machiavelli.
Studies
in
Political Thought
(Cambridge,
1923,
1st edn.,
1907),
p.
110.
3
Allen thinks there is ‘vast confusion’ in Bodin’s work. See his ‘Jean Bodin’
in
F.
J.
C.
Hearn-
shaw (ed.)
The Social and PoliticaI Ideas
of
Some Great Thinkers
of
the Sixteenth and Seventeenth
Centuries
(London,
42.
Cf. Gough, op. cit., p.
403:
Aristotle influenced the plan of the
earlier parts of the
Six Books
‘so
far as there
is
one’.
4
See
G.
L.
Mosse, ‘The Influence of Jean Bodin’s
Republique
on English Political Thought’,
Medievalia et Humanistica,
Vol.
5
(1948),
pp.
73-83.
Cf. Franklin, op. cit., pp. 1
ff.,
18
f.,
33
ff.;
McRae,
A3
ff.;
A.
J.
(and R.
W.)
Carlyle,
A
History
of
Mediaeval Political Theory in the West
(London,
1936),
pp.
6
and
417
ff.
6
Davitt, op. cit., Pt.
I.
6
Carlyle, op. cit., pp.
419
f.; McRae,
A3.
7
Friedrich, op. cit., p.
549.
*
Sabine,
A
History
of
Political Theory
(London,
1963.3rd
edn.), p.
399.
D’Entreves seems to
disagree: ‘By the end of the Middle Ages the notion of the full independence
of
individual states
was almost universally accepted. . .
.
There lacked only
a
name to indicate clearly this conjunc-
tion
of
territorial and national independence with supreme power. The merit of having coined
that name belongs to Jean Bodin.’ Op. cit., p.
99.
Cf. McRae: ‘It was he who first defined the state
.
. . in a way that was unmistakenly modern.
. . . Unlike previous theorists, Bodin made authority the central feature of his entire system
of
politics.’
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