Sovereignty: The Origin and Future of a Political and Legal Concept

Sovereignty is linked, like no other principle of politics or law, with the name of one author: Jean Bodin. Bodin did not invent the word, however; it already existed.¹ The expressions sovereign and sovereignty had been linked to political rule since the thirteenth century in France, where they first appeared a century earlier. In the beginning, they served to characterize concrete phenomena of significant height, such as mountains or towers. Somewhat later, they were also used to describe the power of God.² The reference to physical objects was soon lost. The application to God continued for a somewhat longer time. The term’s use in connection with political rule became common.

In terms of rule, sovereignty described the highest, final decision-making authority, which lent its holder power over others. Those who had no lord above them in regard to such power and were not dependent on the consent of others were called sovereign. Possession and exercise of sovereignty were coextensive. The power to govern was always held by a person who also exercised it. This did not prevent him from using others to aid him in this exercise. However, these others, even when permitted to utilize instruments of power, were not themselves sovereign. Sovereignty was not based on the use of instruments of power, but only on the highest independent power of disposition. He who ultimately remained master of the exercise of power was sovereign.

In this sense, the king was the primary sovereign, but not the only one, since he was not superior to the other holders of powers in all, or even most, regards. The characteristic of being sovereign in fact extended down to the barons. “Each baron is sovereign in his barony.”³ Even the holders of certain offices, such as offices at court, were considered sovereign if they were the final decision-making authorities within their spheres of responsibility. Institutions could also be termed sovereign. The term for the royal court in France was “the sovereign court of the Parliament of Paris” (La court souveraine du parlement de Paris). The president of the court of justice, too, was considered sovereign in regard to the judges subordinate to him.

The number of powers made no difference. The king might possess more powers or, as they had been called since the fourteenth century, sovereign rights than a count or baron. But this did not effect an increase in sovereignty. Sovereignty was not an aggregate concept. Even a single power of final decision making lent its possessor the characteristic of being sovereign. If one wished to describe the elevated status of the monarch among the many sovereigns, one used the word seigneurie. Although, in the course of the dispute between emperor and pope at the end of the fourteenth century, increasing reference was made to the souveraineté of the French king, this remained merely a collective term for certain powers that were his due.

It is true that the view is sometimes expressed among medievalists that the English and French kings had already, by the late thirteenth and early fourteenth centuries, attained a position of power that reflected the essential elements of Bodin’s concept of sovereignty. In this view, reality preceded theory by 150 years. “Recognition of the kings’ unique executive power came several generations before Bodin formulated his doctrine of sovereignty,”⁴ and the later formulation of the concept merely reinforced an already long-initiated development. But the concept of “sovereignty” did not refer to this position before Bodin. Seigneurie could not be replaced by souveraineté.⁵ And it was also distinguished from the later doctrine of sovereignty by its limitation to “executive power.”

Conversely, the claim that the feudal Middle Ages was unfamiliar with sovereigns can only be maintained if one ignores the medieval use of sovereign and instead backdates Bodin’s modern concept of sovereignty.⁶ There was indeed no “final source of authority and jurisdiction”—Bodin’s definition of sovereign—on the secular level. Nor could one have existed; that would have denied the status of God, from whose authority all powers of government were derived and to whose world order they belonged. One might argue about the relationship between worldly and religious power, emperor and pope, but not over the fact that both received their authority from God and were therefore not “final.”

Furthermore, sovereignty did not refer to unlimited power. Concretely, in the Middle Ages its object was only temporal affairs. A holder of worldly powers of rule was sovereign. His power extended only to secular matters, even if these were divinely ordained. Spiritual matters were the responsibility of the Church and its officials. But these officials were not viewed as sovereign. This was also true of the pope, even though the plenitudo potestatis ascribed to him would later at times be interpreted as “sovereignty.”⁷ Where the limits were drawn might be up for dispute. There were constant arguments over this. But there was no dispute about the fact that limits existed and that they restricted the scope of sovereignty by withholding certain matters from it from the start.

But even in the temporal arena there was no unlimited right to rule. At times an absolute power (puissance absolue) is mentioned in connection with sovereignty, but it meant only sole responsibility and final decision-making power, not the freedom to use such power at will. Each power, instead, had a legal framework and a legal objective. It could only be exercised in conformity with legal guidelines. The holder of sovereign rights could not unilaterally change the conditions of its exercise. Resistance was permitted against a sovereign who overstepped these limits; under some circumstances it was even required. Any person could act as protector of objective law. Absolu did not mean legibus solutus.

The social relationships of the Middle Ages were reflected in this concept of sovereignty.⁸ A separate system specializing in political rule had not yet developed. Instead, rule was usually practiced as an annex to a certain status, generally that of property owner. It was thus distributed among numerous holders, of which none possessed comprehensive, let alone absolute, powers to rule. It also referred not to a limited territory, but to persons, so that the inhabitants of an area could be subject to a variety of lords, depending on the respective powers they exercised. The system itself could not be changed by the ruler. It was perceived to be God-given and sacrosanct.

Because the concept of sovereignty reflected the conditions prevailing in the period of its emergence, it could not remain unaffected by the collapse of the medieval order in the wake of the religious schism and the emergence of a novel form of government, the modern state. Bodin’s significance lies in the fact that he drew consequences for the notion of sovereignty from these changes. In so doing, he did not limit himself to the immediate occasion of his work; instead, he generalized the key conclusions he drew from these developments and underpinned them theoretically.⁹ At the same time, the historical cause retained its significance for the specific way in which Bodin redefined the concept of sovereignty. Thus the context is important, both for Bodin’s theory of sovereignty and for its later transformation.

The reason for Bodin’s work was the wars of religion that swept France in the sixteenth century. The schism did not destroy the conviction that the world was ordered according to God’s will and that humans, whether rulers or ruled, had to comport themselves according to that truth. But there was disagreement over what God’s will was. This divided supporters of traditional belief from those wishing to free the faith from the falsifications of which they accused the Church of Rome. Both claimed divine truth for their interpretation and believed themselves justified in using violence to assert it. They were thus implacable foes.

Bodin was born in 1529 or 1530 into an already religiously divided world. The wars of religion began thirty years later, in 1562, when the crown abandoned its original tolerant course and backed the Catholic cause. Efforts by the French monarchy to make themselves absolute rulers had already started. Without breaking radically with the traditional order, they began to oppose, limit, or ignore the rights of the estates and the courts. At the same time, they strove, by fashioning their own apparatus of control, to free themselves from dependence on the estates. These efforts peaked around 1560, supported by a decidedly royalist literature that derived the monarch’s omnipotence from French law.¹⁰

A new word soon appeared for this novel form of political rule, in which 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. It was no longer used only in compound form—a state of something—but on its own. The chancellor of the absolutist regime, Michel de L’Hôpital, used it in the abstract form as early as 1562 in a speech before the Estates General. Bernard de Girard, no supporter of the royalists, called France a state in 1570. Bodin was also familiar with the expression; it frequently appears in his writings as a synonym for republic.¹¹

However, other writers turned against these absolutist efforts and their supporters, emphasizing the limits of monarchical rule. The first work with which Bodin gained the attention of the scholarly world, Methodus ad facilem historiarium cognitionem, in 1566, can be viewed in this context. The St. Bartholomew’s Day Massacre of 1572, in which he almost lost his life, exacerbated the disputes. The Huguenots referred to the right to resistance to justify their struggle against the crown. Bodin’s immediate objective in his Six Books of the Commonwealth in 1576 was to refute that position. For him, sovereignty was the key concept in dealing with the situation.¹²

Still, both sides remained convinced that there could only be “one faith, one law, one king” (une foi, une loi, un roi). The parties’ irreconcilability, however, led a group of authors to question this premise. They did not doubt that preserving the true faith and the unity of faith were important. But, in their view, these could not be taken so seriously as to jeopardize the existence of the polity. The polity took priority over the question of truth, about which agreement seemed impossible. These authors therefore strove for a solution to the conflict independent of religious truth—that is, a purely political solution—and were dismissively called “politicians” (les politiques) by their contemporaries.¹³

Bodin was one of them. 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. From a historical perspective, this could only be done by the king, who, at the tip of the medieval feudal pyramid, 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.

But that could not be the end of it. The ruler needed this wealth of powers not merely to end the war but also to create and implement a new, peaceful order. Therefore, and second, the power to make law was also necessary. Bodin called this expanded legal power “sovereignty.” Because of the collapse of the medieval order and the dependence of domestic peace on a new order that left aside the issue of truth, this legislative power was, to Bodin, even the “principal mark of sovereign majesty” (le point principal de la maiesté souveraine). The most important characteristic of the sovereign is that he “makes law for the subject, abrogates law already made, and amends obsolete law.”¹⁴

This law was not and could not be restricted to the temporal, if it were to fulfill its purpose. It applied to all matters important for establishing and maintaining domestic peace. No area of law could be reserved to the Church. Ecclesiastical sanctions could not be allowed to affect the worldly status of the individual.¹⁵ It included the power to overturn existing law and abrogate customary law. 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. “The laws … proceed simply from his own free will.”¹⁶

Sovereignty was now no longer what it had been in the Middle Ages. True, it continued to designate the highest level of independently exercised power. This characteristic was in fact what suggested applying the concept of sovereignty to the new situation. Freed from its relationship to discrete, concrete powers, the concept now described the complete possession of governing authority. It thus lost its concreteness and relativity. Sovereignty was now an abstract power that gained its changing content from the way it was handled by the ruler. He was also no longer relatively sovereign, compared to other holders of sovereign rights, but absolutely sovereign. Sovereignty was thus no longer a collective term for a bundle of powers. It now described a unity that was more than the sum of its parts.

To Bodin, unified sovereignty also required a single holder whom he could not imagine as anything but a concrete person or persons. From a historical perspective, only a king was conceivable, but Bodin did not settle theoretically on a monarch. He also saw the possibility of a collective of persons—the nobility or the people—as the holder of sovereignty. Only a division of sovereignty among several independent holders was ruled out. A number of holders would have made each dependent on the agreement of the others and thus unsovereign.¹⁷ A “mixed government” did not meet the conditions Bodin placed on sovereignty. Sovereignty was indivisible. Partial sovereignty did not deserve the name.

In this way, possession and exercise remained in one place. 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 exercised at his behest. To Bodin, sovereignty was not identical with puissance publique. Rather, there were two types of puissance publique: “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.”¹⁸ Earlier powers could thus continue to be exercised under the new conditions, but not on one’s own authority and under one’s own conditions.

Bodin did not, however, go so far as to define sovereignty as unlimited power. This was particularly clear where lawmaking was concerned. The right to legislate was the most important and sole right of the sovereign. However, the sovereign only exercised his legislative power lawfully if he did so in conformity with the “constitutional laws of the realm,” which included the succession and the inalienability of crown lands. Furthermore, the sovereign was bound by the “law of God and of nature,” which was, however, universalized and thus removed from the Church’s right of interpretation, “deconfessionalized.”¹⁹ Bodin’s sovereign was above the law, but not above justice. He was not yet absolute, in the absolutist sense. He was even denied access to private property and he still needed the consent of the estates to collect taxes.²⁰

The limitations on the right to make law could not, however, be enforced against the will of the sovereign. Bodin declared laws that did not adhere to these conditions to be “unjust and dishonorable.”²¹ Yet, if one might appeal against a law, and if there were a body that could declare it invalid and abrogate it, the prince would no longer be sovereign. A right of resistance against unlawful rule was unacceptable to Bodin, because it would place into question the overriding value of domestic peace. He was decisively opposed to the Huguenot standpoint, but allowed subjects to remonstrate and even to refuse to obey obviously unlawful laws in concrete situations.

In 1576 there was no country in which the legal position of the ruler corresponded to Bodin’s concept of sovereignty. Bodin’s achievement would be lessened if one were to assume that he merely gave a name to an altered reality.²² He did not, it is true, develop his doctrine out of nothing; he was able to build upon the strengthening of the French king that had begun earlier, and could take up trends of the day that were already recognizable in politics and literature, but he transformed them into a novel concept that would make it possible to achieve the purposes of political rule under the new conditions of plurality of religious belief. Thus his writings did not primarily explain the status quo, but outlined a prospective theory.

The effects of this theory cannot be overstated. Within five years, nine editions of Bodin’s work had been published in France. By the first third of the seventeenth century, more than twenty editions had been issued in French, and around ten in Latin. It was published in Italian translation in 1588, in Spanish in 1590, in German in 1592, and in English in 1606.²³ Its effects were not confined to the scholarly world. Sovereignty became the model for European princes. Their efforts to achieve sovereignty triggered a process of change in political rule from which the state emerged as a new form of government—though it would vary from country to country and would nowhere reach completion until the end of the ancien régime.

State and sovereignty distinguished the new epoch from the Middle Ages. While the concept of sovereignty was an old one that now described something new, the state was new not only in substance but as a concept. A medieval state existed only in the writings of a few historians.²⁴ The two terms were closely related. One spoke of sovereignty when a ruler was able to disarm the intermediate powers and consolidate scattered sovereignty rights into a unified public authority. A polity that achieved this was considered a state. Public authority and state authority thus became one. The holder of this authority, the sovereign, was the monarch.

France came closest to this model, beginning with Henry IV and continuing with Armand-Jean du Plessis, duc de Richelieu. The monarchy was largely able to avoid giving the estates a say in government and became independent of their services through a powerful state bureaucracy. After 1614 the Estates General did not meet again until 1789. But the feudal system, which granted rights of rule to the lords, guilds, and other corporations, was left untouched, and these rights prevented the ruler from exercising direct power over all inhabitants. Peasants, in particular, remained the subjects of their lords and were also subject to their judicial power. The newly acquired legislative power of the sovereign was used quite frequently, but not yet in a systematic way.

In Germany the princes of the larger territories, especially Prussia and Austria, succeeded in establishing a similar domestic position as the king in France. For the great majority of German princes, however, this was not the case. Behind absolutist facades, the traditional system survived. Furthermore, all the territories, as members of the Holy Roman Empire, remained at least partially subject to the supreme power of the emperor, who, though he made no attempt to turn the Reich into a sovereign state, did prevent the local princes from enjoying complete sovereignty because of the empire’s continuing authority over them.

On the conceptual level, this led to constant adaptation of Bodin’s definitions to fit existing conditions. But radicalizations also emerged, as well as alternative concepts lacking any pragmatism. In France, but elsewhere too, one could find attempts by jurists to bridge the gap between aspiration and reality by maintaining that the sovereign rights remaining with the estates and corporations had been delegated by the princes, which implied the power to claim those rights for themselves—the very power the holders of these rights denied. Others reduced the concept to the monarch’s sole decision-making power and the irreversibility of his decisions in his spheres of authority, but quietly abandoned the characteristic of possession of complete public authority.

In England monarchs after James I attempted, with theoretical support especially from Robert Filmer, and with reference to Bodin, to raise the bundle of privileges that was their due to the level of sovereignty.²⁵ Edward Coke, in contrast, argued that the sovereign power of the king was not a “parliamentary word.” The Parliament, in his view, was in a position to “maketh, enlargeth, abrogateth, repealeth, and riviveth laws, statutes, acts, ordinances, concerning matters ecclesiastical, criminal, canon, civil, marital, maritime, and the rest.”²⁶ In the second half of the seventeenth century, and definitely after 1688, the view had taken hold that sovereignty belonged to the “King in Parliament”—that is, to three independent institutions that together represented the whole.

In Germany the constitutional discourse after 1600 fell under the spell of Bodin’s concept of sovereignty, although it was apparent that his core principle, the indivisibility of sovereignty, did not fit the conditions of the Reich.²⁷ The Reich possessed a mixed constitution that most authors believed was preferable to purer forms of government. Bodin himself, however, interpreted the Reich constitution to place sovereignty in the hands of the Reich estates and therefore classified the Reich not as a monarchy but as an aristocracy.²⁸ Generally, however, there is no question where he believed sovereignty to be best situated: in the hands of the monarch.

This placed German jurists in an ambivalent position. The imperial side rejected Bodin’s classification of the Reich, but took his theories as a basis to prove that the Kaiser possessed undivided sovereignty.²⁹ Supporters of the Reich estates dismissed Bodin’s preference for monarchical sovereignty, but also used his theories to show that undivided sovereignty was the right of the Reich estates, while the Kaiser was merely the highest organ of the Reich.³⁰ In the end, the difference was bridged with a formula that took up Bodin’s Latin translation of souveraineté as majestas, by ascribing majestas realis to the Reich and majestas personalis to the Kaiser.

These examples confirm the effect of Bodin’s concept of sovereignty on his contemporaries. 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 that the divisibility of sovereignty, which Bodin had rejected, continued to run through discussions on sovereignty. The idea was propped up, if reluctantly (irregularis), by such leading authorities as Hugo Grotius, whose Dutch experience could not be reconciled with the postulate of unified sovereignty, and Samuel Pufendorf, who did not succeed in describing the Reich using Bodin’s categories.³¹

While Bodin’s concept of sovereignty was watered down to adapt it to the respective realities, an alternative concept of sovereignty was forming in a campaign against the very movement set in motion by Bodin. It was the Huguenot authors who, following St. Bartholomew’s Day, attempted to justify their resistance to the crown theoretically by resorting to earlier scholastic concepts of the contractual legitimacy of secular rule. In this view, a people did not surrender its original sovereignty through the social contract, but merely transferred the right to exercise this sovereignty to the monarch. This transfer was conditional. The king’s failure to live up to the contract justified resistance—for the monarchomachs, even his murder.

The result was, as Quentin Skinner says, “a fully developed political theory of revolution, founded on a recognizable modern, secularized thesis about the natural rights and original sovereignty of the people,” which was most radically advocated by George Buchanan in Scotland and Johannes Althusius in Germany.³² For the Calvinist theoreticians, however, the significance of popular sovereignty amounted to little more than a justification of resistance. With its help, the monarch would be prevented from ignoring the estates and magistrates, viewed as representatives of the popular sovereign, but this would not create a system of popular rule. Yet the idea of the contract brought the people into play and with them the necessity of distinguishing between possessing and exercising sovereignty.

Not even Thomas Hobbes could escape these consequences in his book Leviathan, which appeared seventy-five years after Bodin’s Six Books and took the concept of sovereignty to its farthest limits. Responding to the English wars of religion, he, like Bodin, assumed that restoring domestic peace required an omnipotent and irresistible authority. However, he agreed with the Calvinists that the legitimation of such an authority could only emanate from the people, whom he therefore granted a primordial freedom in shaping the political system. But the value of security, which overrode all else in the wake of the civil war, was for him worth the price of freedom. Unlike the Calvinists, he therefore assumed that, in the social contract, individuals surrendered all natural rights to the ruler and thus provided him with complete sovereignty.

Hobbes’s twelve attributes of sovereignty show the extent to which sovereignty was strengthened in his work.³³ The sovereign, it is true, does not possess sovereignty originally but gains it through a “covenant” among the individuals who join to form the state. But they cannot change this covenant without the agreement of the sovereign. Because they have surrendered their natural rights to the sovereign completely and unconditionally, no one can dissolve the covenant due to a violation of rights by the ruler. Anyone who does not agree to the covenant can be destroyed if he does not submit. Unlawful behavior by the sovereign is inconceivable. Resisting him is as out of the question as punishing him.

The following six elements of sovereignty described the functions that only the sovereign possessed: legislation, adjudication, making war and peace, allocating offices, reward and punishment, assigning ranks and honors. These powers were “indivisible, and inseparably annexed to the Sovereignty.” Hobbes countered the objection that, in such a system, the situation of subjects is “very miserable” with the argument that only sovereignty thus understood could guarantee the security of the subjects and that it was therefore, on balance, rationally preferable to the alternative of civil war.³⁴

Even if the state is nothing without the almighty sovereign, Hobbes was not interested, as he emphasized in his preface, in the individual sovereign, but in the supra-individual state. A clearer distinction is made between the two than was previously the case.³⁵ The person to whom the rights of individuals are transferred is not directly the natural person of the ruler, but the artificial, legal person of the state. This only becomes capable of action, however, because it has a representative, in the form of the natural person of the ruler. Because, to Hobbes, he is omnipotent, the distinction between the two persons has no practical consequences and is thus often ignored by interpreters of Hobbes.

Hobbes’s intensification of sovereignty marked not only a theoretical high point but also a turning point. Like Bodin’s doctrine, it emerged under conditions of religious civil war; however, it was free of any of the pragmatic considerations that could still be found in Bodin’s works and could only remain plausible as long as the existential threat to life and limb was perceived as a real danger. The more successfully the sovereign state carried out its function of pacification, which necessitated a concentration of power in the hands of the ruler, the more questionable this unlimited power became. Thus the question of legitimacy was posed anew.

Only one generation after Hobbes, John Locke, in his Two Treatises—addressed less to Hobbes than to Filmer—derived the purpose of the state not from the value of security but from that of individual freedom. Insecurity in the state of nature was the reason for the transition to civil society. But, to fulfill its purpose of protection, the state no longer needed all of the individual’s natural freedoms. Only the right to self-help had to be transferred. Therefore Locke purposely called the most important state authority, the legislature, not “sovereign” but “supreme.” It was only the “trustee” of the people, which retained ultimate power and could put it to use if the parliament departed from the state’s purpose of protecting freedom.³⁶

In the second half of the eighteenth century, the natural law theories of the social contract began to be filled with expanding catalogues of human rights that were superordinate to the state.³⁷ These theories were aimed not at sovereignty as such but at the identification of sovereignty with unlimited power. The subjection of the individual to political authority was no longer justified by security alone, but also by the security of a free society that was no longer fundamentally threatened by civil war, though occasionally by aggression from without and lawbreakers from within. For this reason, too, a free society needed a powerful state authority, but it could do without an omnipotent one.

One hundred years after Hobbes, it was Jean-Jacques Rousseau who finally integrated the various sovereignty traditions into a discrete concept. He summarized his goal in the famous words “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.”³⁸ The solution Rousseau offered was that the people did not merely enthrone the sovereign, but were themselves sovereign, and remained so even after conclusion of the social contract. “Sovereignty cannot be represented.”³⁹ As the sovereign, they are omnipotent, but since sovereignty does not devolve upon a representative, the danger of heteronomy is eliminated.