Chapter One: Bodin and Before

The first theorist of sovereignty to be considered is Jean Bodin, and the aim will be to unpack the meaning of Bodin’s association with absolute sovereignty and his reputation for setting out a model of state sovereignty. But before discussing Bodin, we need to consider what sovereignty meant before Bodin. In particular, we need to assess the view that maintains that there is a break between ancient and modern theorising that effectively derives the idea of sovereignty from its early-modern conceptualisation identified in circular fashion with the modern state. This view is evaluated against the one which posits a suitably qualified continuity in the meaning of the term ‘sovereignty’ across the ancient and modern worlds.

BEFORE BODIN

The received story of the Western political tradition runs roughly from ancient Greece and Rome through the European Dark Ages and the medieval period to the Renaissance, the modern period and the Enlightenment, and the rise of the modern state. The issue to be addressed in the first half of this chapter is whether ‘sovereignty’ is properly identified only with its ‘modern’ theorisation or whether it is helpful to think of there being different conceptions before Bodin, thus repealing the artificial and dismissive ancient/modern divide. In order to keep the focus clearly on the issue of the ancient/modern divide, the argument will work with the mainstream distinction between notions of political and legal sovereignty.

One factor to contend with, in coming to an assessment about whether or not the concept of ‘sovereignty’ accurately portrays a general and distinctive feature of polities, is that there is a shifting political vocabulary over this whole period. For instance, ‘empire’ does not now mean what it meant to the Romans, ‘state’ develops a particular meaning in the modern period, as does the meaning of ‘politics’ as we know it, and the dependency of legal and political terms on a religious context in the medieval period was transformed by the secularisation of the modern period. Also, the meaning of political terms resonates very strongly with the specific contexts in which they were used. The term ‘sovereignty’ was sometimes used before Bodin but not with all the key elements of its modern meaning. The argument that follows takes the view that typically a key political term contains an open-ended cluster of components, and its elasticity and malleability of meaning may be traced over time as components of the cluster are downgraded or invested with new meaning. Not only is it unfaithful to the modern history of conceptions of sovereignty to expect the delivery of a single, fixed, meaning, but also it is unrealistic to expect to discover and identify a single, fixed meaning prior to Bodin.

One of the components in the cluster that gives sovereignty meaning is ‘constitution’. The issue of whether the meaning of sovereignty aligns only with modern state sovereignty is complicated by the historical absences and presences of a relationship of sovereignty with constitutionalism. The constitution, like sovereignty, is a part of the architecture of the polity as a whole, and the relationship between sovereignty and constitutionalism is not a given. Like sovereignty, constitutionalism has multiple meanings, and it comes in different forms. Bellamy and Castiglione (1997, 602) find it useful to distinguish the ‘ancient conception of a constitution as describing the characteristics and form of the body politic, as opposed to the more modern view of constitutions as embodying a pre-political higher law’. However, if one’s purpose was to examine the historical record in more detail, or to emphasise the multiplicity of forms of constitutionalism, then this broad brushstroke dichotomy would be helpful at best only as a starting point. Useful paradigms tend to dissolve into more complex stories.

With the threat of anachronism on the one hand and awareness of the continuities and transformations in political meanings on the other, it is not possible to resolve the question of whether ‘sovereignty’ meaningfully pre-dates Bodin simply by reference to the language, by taking the use of the term as definitional proof. Instead, the first half of the chapter will examine four lines of reasoning through the arguments of a set of mostly modern scholars and commentators. This set of writers is not meant to be comprehensive or exhaustive, nor to express ‘classic’ statements on the matter. The purpose of this approach is to demonstrate the strength of the fourth case, the view that there were in a significant sense conceptions of ‘sovereignty’ before the modern period. ‘Sovereignty’ did not arrive de novo with Bodin and, while with hindsight we can see that we have identified with Bodin a threshold to the recognisably modern meaning in terms of its cluster of components, the diversity in ‘sovereignties’ characterises the period before as well as after Bodin. The idea that different conceptions of sovereignty help us to understand different polities over time and space, and the idea that political sovereignty is a feature of all polities (see Prokhovnik 2007, Chapter 4), does not undermine the importance of the emergence of the modern conception of sovereignty, when as Preuss et al (2003 4) put it, ‘all public authority resided in and was derived from the state’.

The question that underpins the debate is whether sovereignty is a necessary feature of politics and political community. There is an ambiguous legacy here, with at least four competing lines of argument that we have inherited. One argument identifies sovereignty with the modern period and with state sovereignty. It posits either a sharp break, maintaining that in the ancient and medieval worlds of the West other political concepts were significant but sovereignty was not, or sees uses of the term sovereignty before the modern period as precursors. The general argument held by this view is that different forms of political rule are characterised by different forms of symbolic authority, and sovereignty is the name given to the specific kind of symbolic authority in the (modern) state form. Another argument sees sovereignty as specifically associated with modernity and secular reason, and with the pattern of enlightenment dichotomies such as objective/subjective, mind/body, science/opinion, external/internal, reason/emotion, and culture/nature. A third argument maintains that there is a long and continuous tradition of sovereignty. Bodin himself makes a claim for sovereignty’s pedigree and it is an important feature of his argumentative strategy. According to this view sovereignty has always meant roughly the same thing, namely ultimate authority, legal supremacy, law-making power, and the power to attempt to subdue enemies, even if distributed between different persons, bodies and institutions. Bruno Simma takes this view when he asserts that ‘all states in the world possess suprema potestas and are thus not placed in any kind of hierarchy’ (quoted in Simpson 2004, xii). Here sovereignty is equivalent to the very idea of symbolic authority, of rule by authority rather than through mere force. While all these three lines of argument contain important insights, they all have in mind (albeit different) fixed concepts of sovereignty.

The fourth argument differs in holding that sovereignty features in ancient and medieval as well as modern political forms, but that there have been many and various conceptions of sovereignty. The value of the fourth line of argument over the others lies in its recognition of change and movement over time, of contextual variety and difference, and this is expressed in the distinction between concept and conception. It emphasises, against the first view in particular, that the state and state sovereignty, and so sovereignty at all according to this fixed conception, is not universal, transhistorical in applicability, or transcendent in character. In a sense the question of whether sovereignty existed prior to the modern state can only be decided by definitional fiat, since if you hold that all the central components of sovereignty all belong to the state form, then no other conception of sovereignty is possible. However, if you hold that only some features are inherent in the modern state conception, then conceptions of sovereignty both pre- and post- the modern state are possible. This matter cannot be decisively resolved by appeals to historical material since all historical evidence is radically subject to selection and interpretation. The value of the fourth line of argument is that it takes the debate forward rather than being stuck in the discourse dominated by state sovereignty.

Attention in the first half of this chapter is focused on the first and fourth of these lines of argument. The first argument is especially significant because it contains the dominant narrative, about the emergence of the modern state and modern state sovereignty. For the purposes of this book this focus is also important because it is within this dominant story that the idea of multiple conceptions of sovereignty is lost sight of with the hegemony of the state form, and other conceptions of sovereignty are rendered invisible as the state form became a ‘given’ of political life and of the political vocabulary. It is also important to examine this narrative, and so to recognise that the meaning of sovereignty is more complex than portrayed there, in order to identify the ideological investment at stake in the first line of argument. By accounting for the modern state in this way we can begin to see again how sovereignty has a rich set of meanings broader than the association with the state form, and lay the ground for showing the value of the fourth line of argument.

One

The argument for the equation of sovereignty with modern state sovereignty picks up on several aspects of the meanings of ‘modern’, ‘state’, and ‘sovereignty’. It also makes a strong claim about a breach and severance between the notions of ‘ancient’ and ‘modern’ sovereignty, often based on a presumption of the conceptual superiority of the modern form. We will examine a range of lines of argument put forward by a number of scholars. Loughlin argues that the key transition from the medieval period involved the assertion of royal supreme power and the sweeping away of the system of medieval city states. Habermas also subscribes to the notion of a decisive ‘break’ between medieval and modern modes of political organisation. Schmitt uses Hobbes to posit a ‘break’. Keal gives weight to a sharp change in sixteenth century claims to sovereignty over foreign territory and indigenous groups, based now on the conquered peoples rather than on the right of the conquerors. Brod distinguishes modern polities from their predecessors in terms of the exercise of some form of popular sovereignty. Skinner’s portrayal of the gradual process of emergence of the modern state is a welcome counterbalance to narratives of a ‘break’, but it necessarily suppresses a narrative about the metamorphosis of sovereignty.

Heiman regards the development of ‘constitutional and legally ordered interaction’ as the key feature of modern sovereignty. Bottici highlights the idea of the state asa persona ficta, and in similar vein Gough regards as crucial a shift from the personalised sovereignty of the monarch to the ‘technical’ modern notion of a legal sovereign. Harrison locates the suppression of church authority as the key factor. Jackson’s confident assertion of sovereignty as the distinguishing mark of modern politics represents well the ideological claim of the realist tradition of international relations. Spruyt presents a more nuanced account of the Jackson argument. Franceschet draws out the ideological dimension of this story. A version of this first argument is also put forward by Brown et al, who contrast the emergence of sovereignty with the way political communities were envisaged in the ancient world. Keal’s work complicates the received story when it identifies how the modern state definition of sovereignty was crucially constructed against a backdrop of a continuity of imperial power.

Loughlin makes a case that the concept of sovereignty is necessarily associated with the modern state, and looks to evidence from medieval history to support his claim. He argues that while the ‘terminology of sovereignty was in use during the medieval period, the concept in a true sense did not then exist’. He quotes Jouvenel that although people in the Middle Ages had ‘a very strong sense of that concrete thing, hierarchy; they lacked the idea of that abstract thing, sovereignty’. Loughlin contends that sovereignty was used in the medieval period to signify superiority but that even the Holy Roman Emperor could only assert ‘command over those who were best placed to disobey’, and he invokes the fact that ‘central authority possessed only a limited hold over the governed’ (Loughlin 2003, 57). Loughlin sees the major stages on the way to modern sovereignty as monarchs ‘breaking the political power of the feudal magnates’, and challenging the authority of the Pope and the Holy Roman Emperor, with the outcome that sovereignty gives to the modern state its internal coherence, external independence, and supremacy of the law. The first was achieved by the ‘destruction of all authorities that sought to challenge the power of the royal will’, and so the achievement of plenitude potestas, supreme power, and the second resulted in the ‘assertion of royal authority and the subversion of the medieval order’ (Loughlin 2003, 58–9). Habermas also takes the view that the modern sovereign state marked an important break when he refers to ‘its predecessor, the dynastic absolutist state’ (Habermas 1997, 120).

However, as Spinoza’s conception of sovereignty will demonstrate in Chapter 2, lack of strong central authority does not on its own invalidate the use of the notion of sovereignty. More generally, in order to make his point Loughlin describes a conception of sovereignty that is very narrowly conceived. There is a strong case for recognising a wider scope for the meaning of sovereignty.

Schmitt highlights Hobbes’s innovation over the medieval form. He says, ‘[f]or Hobbes it was relevant for the state to overcome the anarchy of the feudal estates’ and the church’s right of resistance as well as the incessant outbreak of civil war arising from those struggles’. The Hobbesian state did so by ‘confronting medieval pluralism, that is, power claimed by the churches and other “indirect” authorities’, but also through its sense of ‘the rational unity of an unequivocal, effective authority that can assure protection and a calculable, functioning legal system’ (Schmitt 1996, 72).

Keal seeks to distance modern from earlier forms of sovereignty by pointing out the different bases of sovereignty. He argues that, ‘Christian claims [in the sixteenth century] to sovereignty rested on the “nature of the people being conquered [ie their supposed status as barbarians], instead of in the supposed juridical rights of the conquerors”’ (Keal 2003, 69–70, quoting Anthony Black).

Brod finds another way of differentiating modern sovereignty from earlier forms of rule. He argues that ‘[e]very modern political system must in some sense claim to express “the voice of the people” and must at least give lip service to the idea of “popular sovereignty”’. Brod contends that ‘[c]lassical or medieval political systems, in contrast, had no such obligation’. He substantiates this view with the argument that ‘Hegel’s attention is on the underlying deep level of continuity and agreement in the foundations of political discourse in the modern world’. This underlying level of continuity ‘makes it possible, for example, to take competing systems like capitalism and communism and cast the arguments for each in terms acceptable to the other system, to speak of competing claims to realise political and economic democracy, and to construct a dialogue with shared basic assumptions’. These things, says Brod, ‘could not have been constructed between monarchists and republicans, for example, in an earlier period’ (Brod 1992, 136).

Although this first narrative poses modern state sovereignty as emerging from a decisive break with the past, the historical record indicates rather a series of stages through which the modern state notion of sovereignty became entrenched, of modifications right up into the twentieth century and beyond. State sovereignty as we understand it today did not arise simply at one time fully formed. State sovereignty, and the international system of nation states that accompanies it, have both developed over time and so changed their meaning since the seventeenth century. The relationship between state sovereignty and the international system of states (so crucial to the modern sovereignty paradigm) has also varied across time, and these redefinitions can be plotted through the history in a series of treaties and settlements. The Westphalian settlement of 1648 not only sought to provide a peace treaty between warring political societies in Europe, but also set out the basis for excluding religious differences from conflicts between polities, recognised the existence of England and France as nation states, set the basis for what became the principle of an international system of nation states whereby states had sovereignty and a right to non-intervention, acknowledged a wider international system dominated by European states with colonies and empires abroad, and inaugurated the territorialized basis of states. The Concert of Europe of 1815 was set up to enforce the decisions of the Congress of Vienna. The Versailles Treaty after the First World War redrew the borders of states and the marked the final end of the Austro-Hungarian Empire, and the League of Nations was formed. The end of the Ottoman Empire had an important impact in shaping European self-definitions. The post-Second World War settlement, the establishment of the United Nations, waves of decolonisation, the Yalta agreement instituting bipolarity and the Cold War, have all also registered new meanings to state sovereignty and its international context. The end of the Cold War, the emergence of the United States as the single world super-power, waging war in Afghanistan and Iraq in the name of liberal freedom, and the growing importance of religion in politics and political judgment, marks another patterning of international politics and a new meaning for the sovereignty of the nation state.

One far-reaching effect of the development of the idea that there is a separate legal and constitutional order, that of the state, which the ruler has a duty to maintain, is that the power of the state, not that of the ruler, came to be envisaged as the basis of government. This in turn enabled the state to be conceptualised in the distinctively modern terms of modern sovereignty—as the sole source of law and legitimate force within its own territory, and as the sole appropriate object of its citizens’ allegiance. Skinner, Heiman, Bottici, and Gough all express aspects of this view.

Skinner’s Conclusion to his 1978 Foundations of Political Thought. Volume 2, traces well the historical detail of the process by which the idea of the modern state emerged. He sets out the preconditions of the modern state by the end of the sixteenth century. This is an important story, but it is not completely coeval with that of the development of modern sovereignty and its distinction from earlier ancient and medieval conceptions. The narrative of the emergence of the modern state, from the perspective of the history of conceptions of sovereignty, has the effect of depoliticising sovereignty and suppressing the story of the transmutation, translation, and metamorphosis of the concept of sovereignty over time.

Heiman also supports this first view. He comments that, ‘[e]qually lacking from the medieval model was that type of sovereignty which brings about a constitutional and legally ordered interaction between the numerous elements of the whole, an arrangement which allows for diversification yet retains the aims of the whole in sight’ (Heiman 1971, 127–8).

Bottici also identifies modern sovereignty with a vital feature of the modern state. She articulates the view that the notion of sovereignty arose in conjunction with the idea of state as a persona ficta. Bodin and Hobbes are singled out, in this story, as the theorists who exploited the metaphor of the state-person, with the state as a ‘unitary actor, equipped with a single will and rational behaviour’ and the focus of the ‘concept of a power superiorem non recognoscens’. Schmitt takes a similar view, Bottici notes, arguing that the force of the metaphor was achieved through a political secularisation of theological categories, with ‘God’s superiorem non recognoscens power becoming the state’s sovereign power, and the omnipotent God becoming the omnipotent lawgiver’. She also recognises that the ‘idea of the personality of the state is ancient, dating back to the Justinian Roman law idea of the state as an abstract subject of rights’, but regards ancient Greek thought as being governed by another metaphor, an organicist one. She argues that the ‘Platonic parallel polis-soul and the Aristotelian organicistic metaphor point instead much more to the organic composition of society, where the whole of the society is superior to the sum of its parts, but cannot be conceived of without them’. In contrast, the state as persona ficta is regarded as ‘somehow independent of its members’ (Bottici 2003, 395–6).

Gough (1963, 127) wants to make a distinction between a medieval sense of sovereignty and a modern, ‘technical’ sense. In the medieval sense sovereignty coincided with the monarch, while sovereignty in the modern sense is constituted by the distinction between legal and political sovereignty, for Gough. The legal sovereign is the person or assembly that can make positive law that none other can overrule, while political sovereignty is found for instance in popular sovereignty forms. In this case sovereignty has two dimensions—it can revert to the people if the government is dissolved, and it operates where the legislative body represents the people in a popular franchise.

Harrison points out that the move towards modern state sovereignty entailed in a very real sense the suppression of the authority of the church. He takes the view that ‘Bodin argued that in any regime there had to be a single sovereign. Even if this is not analytically correct, it was becoming more and more true as a matter of fact in the new regimes of Europe’. Harrison notes that in ‘the Middle Ages, there were two swords, Pope and Emperor. With Henry they became one’, when ‘Henry abolished the Pope (as a judicial authority in his country) and hence gave himself plenary power, full sovereignty’. Harrison pinpoints Henry’s action as the effective claim to ‘full power, this unification of authority in a single person’ (Harrison 2003, 18–19).

Jackson, working within a confidently state-centric conception of sovereignty, stipulates categorically that sovereignty is ‘a distinguishing feature of modern politics’. It ‘points toward the modern era and away from the medieval era and all previous era’. For Jackson it is unequivocal that ‘[s]overeign statehood anchors our concept of modern politics just as the notion of Christian empire anchored the concept of medieval politics’ and that ‘[p]resumably some new or renewed concept will have to anchor post-sovereign politics’ (Jackson 1999, 423).

Franceschet reminds us that what we are dealing with here is not just facts but with an ideological story too. He observes that the development of ‘[l]iberalism is historically bound up with the coterminous rise of the modern state and the desire by certain social classes for freedom from the constraints of feudalism’. Moreover, if ‘the constraints of the feudal order were to be dismantled properly in favour of individual self-determination, then another, more rational and legitimate constraining device was to be found in the modern sovereign state’ (Franceschet 2002, 69).

The history of ideas about modern (state) sovereignty begins with Bodin, and in an important sense this is a constructed and political beginning. Regardless of what Bodin said (for instance about an impersonal sovereign, secularising the question of rule and politics, and providing a legitimacy away from divine right and in ‘natural’ law, all of which are indeed relevant to the emergence of the concept of modern state sovereignty), it acts to give modern state sovereignty a prestigiously long pedigree, identifying state sovereignty as a concern of a sixteenth century writer.

Spruyt presents a sophisticated form of the argument represented by Jackson. He contends that it was not a foregone conclusion nor natural upshot that sovereign states, and a system of sovereign states, would supersede medieval nobilities, feudal lords, burghers, city states, city leagues, confederated city leagues, centralising monarchies, emperors, and the pope as crosscutting jurisdictions and focuses of political authority. The development of the state system cannot be ascribed to a simple Darwinian survival of the fittest in terms of military power. Neither was the history of this development even nor linear in fashion. The previous ‘system’ was the feudal mode, characterised by rule by personal bonds, and in the late medieval and early modern period the sovereign state had serious competitors in the city league and the city state. However, Spruyt argues, the element that proved decisive was not ‘the particular level of monarchical administration or royal revenue, nor the physical size of the state’, but the ‘new element introduced by the late medieval state … the notion of sovereignty’, a ‘critical turn in the political organisation of the Late Middle Ages’.

According to Spruyt, while ‘the fundamental transformations of the late medieval period were set in motion by the dramatic changes in the economic environment’ (Spruyt 1994, 67), ‘it was the concept of sovereignty that altered the structure of the international system by basing political authority on the principle of territorial exclusivity’. He states bluntly that the ‘modern state is based on these two key elements, internal hierarchy and external autonomy, which emerged for the first time in the Late Middle Ages’ (Spruyt 1994, 3). The sovereign state is ‘an organisation that is territorially defined. Authority is administrative control over a fixed territorial space. It is delimited in an external sense, vis-à-vis other actors, by its formal borders. Unlike the church or empire, it advances no superiority over other rulers’ (Spruyt 1994, 36). The sovereign state exercises secular rule. Spruyt argues that the ‘sovereign, territorial logic of organisation replaced the alternative modes of authority in Europe’ because their centralised decision-making authority was ‘in a better position to overcome the f eudal r emnants o f e conomic a nd legal particularism’. Because ‘the king’s interest in rationalizing and improving the overall economy coincided with the interests of the mercantile elements in society’, kings were more efficient at ‘curtailing freeriding and defection, and hence they were better at mobilizing the resources of their societies’. Also, given ‘the existence of a final decision maker, sovereigns could credibly speak on behalf of their constituencies’ and, ‘because of their territorial character, states were compatible with one another’, and their ‘borders enabled sovereigns to specify limits to their authority’ whereas city-leagues could not easily do this (Spruyt 1994, 155).

Spruyt also argues that before the system of sovereign states emerged, the identity of the political community derived from some readily identifiable shared affinity such as ‘shared kinship, similar religious belief, or highly personalistic ties of mutual aid and submission’. Similarly, says Spruyt, the sovereign state also needs to be ‘imagined and personified before it can exist’ (Spruyt 1994, 67), or in other words this transition ‘required reification and objectification of authority’. Feudal relations ‘resembled a form of artificial kinship’. According to Spruyt, the ‘emergence of sovereign, territorial rule was, therefore, not merely a fight between the forces favouring fragmentation versus centralization; it was a contest about the very nature of authority and kingship’, and a move from a personalised to a depersonalised form of kingship (Spruyt notes that ‘when Louis XIV supposedly equated himself with the state, he contravened the realities of political discourse of the seventeenth century’), as well as a ‘radically different way of ordering international transactions as well’, based on the ‘principle of juridical equivalence’ between states. Spruyt is adamant that what is at stake here ‘represent[s] a cognitive shift’ and that a ‘pure materialist explanation does not suffice’ (Spruyt 1994, 68).

Spruyt’s argument is excellent in pointing out the historical specificity of the political ‘logic of organisation’ in the late medieval period and at showing how the system of sovereign states triumphed over its competitors in a non-teleological manner. Also, while Spruyt is not on sound ground in introducing the concept of the ‘logic of organisation’ meta-historically, nevertheless the term is useful in conveying an important aspect of what ‘sovereignty’ accomplishes for a polity. However, the weakness of his analysis is that he takes on a definition of sovereignty from Benn and Hinsley as a given, has a simplistic model of sovereignty (hierarchy and autonomy), and does not seek to problematise whether the concept of sovereignty might have more richness by looking for continuities with the past or broadening the range of factors involved in its meaning.

A version of this first argument is also put forward by Brown et al, who contrast the emergence of sovereignty with the way political communities were envisaged in the ancient world. They highlight the role of city states as ensembles of collectivities, and argue that ‘cities such as Athens and Rome were founded as associations of families, and the lineage groups of the original families, the tribes, continued to play an important role in the politics of the city throughout the classical period’. Under the Roman republic, they observe, ‘the Romans always voted with the tribe as the constituency rather than any territorial sub-division of the city, and tribal identities were equally important amongst the Athenians, where the large number of resident aliens—some of second or third generation or more—testified to the near impossibility of non-descendents of the founders achieving citizenship’. They note that ‘Rome had a more open policy in this respect, but under the Republic the notion of descent as the basis for citizenship was preserved by the policy of adopting naturalised citizens into a particular tribe’ (Brown et al 2002, 7).

Brown et al also follow the view that, in the Middle Ages, ‘“[p]olitical” authority was divided amongst a number of different kinds of entities, ranging from territorial magnates and incorporated bodies such as towns or universities to universal entities such as the Holy Roman Empire or the papacy. Each of these bodies exercised some authority, none exercised sovereignty in the modern sense of the term’ (Brown et al 2002, 5). Brown et al endorsea picture of medieval Europe as ‘a tangle of overlapping feudal jurisdictions, plural allegiances and asymmetrical suzerainties’. They characterise it as a place where not only ‘kings, lords, vassals, and church officials but also towns, parliaments, guilds, and universities exchanged diplomatic missions, settled their disputes by negotiation and arbitration, and concluded formal treaties’. They support the view that ‘kings made treaties with their own vassals and with the vassals of their neighbours. They received embassies from their own subjects and from the subjects of other princes’, and ‘subject cities negotiated with one another without reference to their respective sovereigns’. They contrast this with the situation in modern international society, whereby ‘only states are “international legal persons” capable of sending and receiving ambassadors, signing treaties, or appearing before international tribunals’. Moreover, they note, medieval treaties ‘were more like private contracts’ because the idea of public international contract had not yet been established, and treaties ‘were made under the law common to all peoples’, and partly because the distinction between office and office holder had not been established (Brown et al 2002, 250–1).

Brown et al also represent sovereignty as emerging as a way of ‘solving the problem’ of ‘how conflicting claims to ruling authority should be reconciled’ (Brown et al 2002, 247). But they see the idea of sovereignty as ‘implicit’ as far back as ‘the thirteenth-century French formula, “the king is emperor in his own realm”—in other words, that the law of the king of France overrides that of any other lord, baron, or noble in France’. They argue that Bodin’s work was crucial in promoting the case that ‘in the face of intractable religious disagreements’, the ‘only plausible basis for peace was shared recognition within each state of the authority of its ruler’. The criterion for delimiting the respective claims to exercising power is sovereignty (Brown et al 2002, 248).

The teleological and normative interpretation often found as an element of this first view, is summed up by Brown et al when they state that ‘[a]lthough a society of states has been in the making in Europe since at least the fifteenth century, the idea of a distinct body of law springing from and regulating this society remained hazy throughout the early modern period’ (Brown et al 2002, 311).

The conventional idea about the emergence of the sovereignty political form is made more complex by directing attention to writers like Spinoza who presented a theory of sovereignty which refutes the notion that sovereignty in the early modern period was universally characterised by a unified state form, and by pointing out the ideological quality of the modern state paradigm of sovereignty. A further argument that complicates the received story is found in Keal’s work, which identifies how the modern state definition of sovereignty was crucially constructed against a backdrop of a continuity of imperial power. This first story, of the emergence of the modern sovereign state, does not sufficiently take into account several points about empire. The orthodox narrative misses out the impact of the subsequent development of empires in the modern period, and the differentiated experience of countries and peoples under empires, as well as underplaying the (spurious) theoretical arguments used to amalgamate state and empire and to justify imperial domination. To make this case, Keal usefully highlights the value of Benjamin Cohen’s definition of sovereignty, which emphasises the asymmetry between dominance and dependence (Keal 2003, 38). He also usefully quotes Michael Doyle’s definition of empire as ‘a relationship, formal or informal, in which one state controls the effective political sovereignty of another political society’. Keal makes the point that, following Doyle’s definition, the ‘political society’ being controlled could be a state or something less than a state (Keal 2003, 41).

Keal reminds us that empire is not only a Western political form—the Ottoman, Japanese and Chinese empires are all examples of important non-Western empires. He also observes that, ‘at the very time that it became clearly discernible, international society was itself a society of empires’ (Keal 2003, 42). The implications for understanding the emergence of the sovereign state as the dominant political form and of international society in this context are important, according to Keal, because ‘empire involves the limitation of sovereignty’. Keal quotes Doyle’s phrase for empire, ‘a sovereignty that lacks a community’, and argues that it was in important respects the character of empires that led to claims by groups for ‘self-determination and sovereignty over their own affairs’ (Keal 2003, 43).

Two

The second line of argument contends that sovereignty is defined by the modern commitment to reason, social contract and individual rights. This commitment contrasts with the legitimation of political order in the previous period by ideas inflected with Christian religious sanctionings such as the divine right of the king. According to this view sovereignty is associated with the specific context in the history of ideas of modernity and secular reason, and with the pattern of Enlightenment dichotomies such as objective/subjective, mind/body, science/opinion, external/internal, reason/emotion, and culture/nature, all of which have a distinctive form in modern thinking and social practices.

According to this view, the early-modern period saw the transition from temporal rule by personalised rulers legitimated by divine sanction, to temporal rule legitimated by an abstract, non-personalised principle of sovereign right. For this view, modern sovereignty begins with Bodin precisely because this is when the modern process of de-personalisation begins. Modern sovereignty is the answer to questions about ruling that were now being asked, where the answer of a divine sanction retreated into being considered as only part of the background of an explanation.

This second story about sovereignty also argues that the shape of modern sovereignty, and the story about its differentiation from earlier political forms, is profoundly affected not only by Enlightenment processes of secularisation and the elevation of individual reason. It is also deeply informed by the process of nation-state structuring, capitalist economic developments, and the formation of international relations or the international system, which occurred during the seventeenth and eighteenth centuries.

These two processes were closely related. The development of the modern international sphere characterised by modern autonomous states as the agents with choices, mirrors the construction of the sovereign individual. The metaphorical relationship between individual and state, taken to have powerful explanatory value, developed in consequence. The new self/other dichotomy that formed during the Enlightenment period is mirrored in the notion of international relations being modelled on the self/other dichotomy between states.

Three

The third narrative, to which Bodin subscribed, is that sovereignty is a political concept which characterises any and every political form. In capturing the notion of symbolic authority itself, sovereignty applies to all polities by virtue of their having some distinction between the arrangement of public order and other kinds of social orderings, including before and outside the modern Western formulation of the distinction between public and private. Bodin’s answer to the first story, about a putative break between modern and pre-modern sovereignty, was simply to argue that in the medieval period, ‘the emperor is subject to the Estates of the Empire, and does not claim sovereignty over the princes or the Estates’ (Bodin 1992, 16). Cole uses the same logic when he argues that we ‘have only to seek out the determinate human superior in a given society, and we shall find the Sovereign’, following Austin that a sovereign has no superior to whom obedience is due and receives ‘habitual obedience from the bulk of a given society’ (Cole 1973, xxv).

De Tocqueville takes the view that the application of the term sovereignty is general enough that it can be made both about different time periods and, perhaps, different institutions within a society. He argues that the ‘principle of sovereignty of the people … which is always to be found, more or less, at the bottom of almost all human institutions, usually remains buried there’ (quoted in Connolly 2004, 31).

This third perspective on the history of sovereignty argues that if the legitimation of rulers and the establishment of political order are seen as two of the key components in the sovereignty cluster, then we can trace a history of changes in sovereignty in the Western tradition from the legitimation of rulers in ancient Greece and Rome by law and polytheistic religion. In the medieval period the legitimation of rulers (monarchs and emperors) came from divine law, a divine source, God. This political order was supplanted by one in which legitimation of the monarchs of early-modern Europe as sovereign was supplied by a developing Rechtstaat idea linking law and morality. With Rousseau we have the argument for the legitimation of the ruler from the people, from popular sovereignty in the Rechtstaat. In contemporary practice the legitimation of rulers comes from democratic principles and procedures (rather than from the people directly) in a moral and legal Rechstaat.

The third narrative can also be supported by reference to important continuities with older political forms such as the Roman. A primary contribution of the Roman period to political thought, lies in the areas of legislation and the definition of governmental offices and institutions. Roman law is the basis of all European jurisprudence, not excluding the ‘common law’ of the Germanic peoples of Northern Europe whose ‘Romanisation’ was mediated by Christianity. Armitage’s analysis of the term imperium, for example, is useful in showing the strong links and continuity between sovereignty and the early classical understanding of empire, because of the Roman origin of the term. His description of the meaning of imperium resonates as strongly with the concept of sovereignty as it does with the concept of empire. Imperium was the term for authority in Roman public law, and it had been ‘invested with a spatial dimension during the late Roman republic and early principate’. The term ‘originally signified the supreme authority held by a military commander’, but took on the meaning of ‘rule’ more generally, and then came to refer to the ‘territory over which such rule was exercised’. Armitage traces the way early-modern uses of ‘empire’ (and the later meaning which put together empire and ‘imperialism’) were ‘distilled from these Roman precedents’, such that from meaning ‘supreme authority, imperium became used to denote any power that recognized no superior and, by extension, a political community that was self-governing and acknowledged no higher allegiance’ (Armitage 1998, 103–4). Armitage’s analysis is also useful from the point of view of this third narrative, in highlighting the ‘wider conceptual field’ of order, hierarchy, independence, and political community, within which contemporaries debated the meaning of empire and, we can add, sovereignty. Furthermore, Armitage’s reminder of the persistence of Roman classics in the educational curriculum, and so the basis of intellectual life, well into the eighteenth century, demonstrates also the indebtedness of the meaning of sovereignty to those Roman sources (Armitage 1998, 104).

Vincent also takes the view of a long and continuous tradition of sovereignty but with a fixed conception of it, specifically in relation to conceptualising the power and authority of Popes in the medieval period. Vincent quotes Figgis that ‘there was a belief, that true sovereignty, ie independence and unquestioned authority, had been derived from appropriation by each kingdom of rights originally confined to the Empire’ in the medieval period (Vincent 1987, 66). He writes that ‘Gierke and Figgis consciously identified the source of this principle of sovereignty with Roman law. The doctrines of imperium and legibus solutus were taken on board originally by Popes’. Vincent notes that the ‘doctrine of the “plenitude of power” (plenitudo potestatis) was adapted by Popes such as Innocent to justify their absolutist claims’ (Vincent 1987, 199). He makes the case that Roman law ideas certainly played a key role, from the twelfth century onwards, in the development of the absolutist theory of the state, of which the idea of sovereignty as absolute, perpetual, indivisible, and inalienable was a central concept. Vincent argues that this ‘is specifically the case with doctrines such as plenitudo potestas and princeps legibus solutus est. These doctrines tended to focus and concentrate power, authority and law into the ruler’. Such doctrines, he claims, ‘were attractive ideas to theorists looking for an alternative to the strife of civil war’. Initially, ‘canon lawyers were fascinated by the use of such doctrines to describe papal rule. Papal monarchy was first formulated by Pope Leo I (440–6), although later, much more vigorous, formulations of it were offered by popes Gregory VII and Innocent III’. According to Vincent, religious ‘discussions of papal sovereignty and the constitutional role of the Church were gradually laicized in the sixteenth century’, and the transformation was ‘accomplished during the Reformation’ (Vincent 1987, 48).

Hinsley’s perspective straddles the third and first narratives. He argues that the concept of (internal) sovereignty is ancient and extends back at least to Roman times, but that sovereignty was not applied to the international domain until the end of the sixteenth century. He accounts for this situation by holding that it was not until the end of the sixteenth century, when another formulation of internal sovereignty was made, that the authority relationship at the heart of the concept was applied to the international realm. Only then did ‘men first grapple with the problem of extending’ the idea of sovereignty ‘to the relations between states’. Moreover, Hinsley relates, and expressing the teleological perspective explicitly, ‘it was not until the eighteenth century that they finally solved it’. Hinsley maintains that while the ‘idea that there is a sovereign authority within the single community involves the corollary that this authority is one among other authorities which are ruling other communities in the same sovereign way’, in practice ‘this logical consequence was not recognized for hundreds of years’. Neither the ‘Romans nor their Byzantine successors, both of whom had developed the notion of internal sovereignty, ever applied it in its international sense’ (Hinsley 1969, 275–6).

Four

The fourth line of argument builds on the third but differs from the previous three in taking conceptual and historical change seriously. The concept/conception distinction enables us to identify a multiplicity of conceptions of sovereignty across ancient, medieval and modern political forms. Attention to historical change and specificity enables us to acknowledge contextual variety and difference. This fourth perspective emphasises that no conception of sovereignty, including the modern state one, is universal, transcendent in character, or transhistorical in its reach. After outlining the abstract form of the argument, evidence from Coleman, Franklin, Loughlin, Teschke, Bartelson, and Reus-Smit is brought to bear to support this view.

In answer to the question of whether sovereignty is a necessary dimension of politics and political society then, this fourth line of argument says, yes in a weak sense but no in a strong sense. In the same way that all political regimes have conceptions of something like politics and law, all have an organising principle for living in political society together. But sovereignty is not necessarily allied to a capitalist economic market, an impersonal bureaucratic state system, a state with a monopoly of power and violence, and fixed territory. All polities have a role for law, though not necessarily a ‘rule of law’ or Rechtstaat. Not all polities have a secularised conception of political principles, and not all polities distinguish political theory from civil and legal theory. All polities have mechanisms for dealing with social conflict, political differences, a principle for social coherence and identity, social cooperation and methods of enforcement, but their means of legitimating and achieving these things vary widely.

Similarly, this fourth viewpoint responds to the question of whether one can talk about sovereignty independently of its subject—of the specific form of polity with which it is associated—by saying that, as with all political concepts the answer is both yes and no. Yes—in order to operate with a concept/conception distinction, there must be a thin notion of the concept which is shared by all thick conceptions but which is expressed differently in the various conceptions. The Greek polis, medieval city-states, the early-modern absolutist state, and the modern nation state, all share a thin concept of sovereignty, this fourth argument maintains. At least in the Western tradition, moreover, the category of empire with reference to ancient Greece and Rome and medieval Christendom can, with some adjustments, be discussed in terms of sovereignty. But no—they don’t all share the same thick conception. In addition, when discussing non-Western forms the meaning of the term is stretched and at some point becomes anachronistic and can only be considered by analogy, and so loses some explanatory force. In these senses then, at least within a Western tradition, all polities, all political forms have a conception of sovereignty, just as they all have some form—however much unwritten or unformulated—of a constitution, an explanation of relations of order, political institutions, ideas about rights and duties, and a sense of law.

The question of what sovereignty meant in the medieval (and possibly) ancient period is complicated by the absence, as Coleman documents, in the earlier time, of the modern notion of self-ownership associated with classic liberal writers. She complains that, in reading the earlier period, ‘there is still a tendency to conflate ownership with powers of self-governance’ (Coleman 2005, 135). Coleman’s work is important in that it helps to de-naturalise the equation of sovereignty with modern liberal sovereignty. She notes that there has been ‘an easy contemporary conflation of sovereignty over oneself and ownership of that self’ (Coleman 2005, 126). In the earlier period, she shows, ‘[s]overeign jurisdiction—the word in Latin was often dominium but it meant jurisdiction—was a duty of care of a superior over an inferior’. Another meaning of the word dominium, she adds, ‘did refer to private property ownership and to say that someone has a property in something, in some exterior material good, meant he had a material interest in it and this required that the something be alienable’. Coleman gives the example of how ‘a judge could have a range of jurisdictional powers over, say, a criminal’s body and his material possessions’, but ‘he could no more “own” that body than he could “own” the man’s soul’. Moreover, Coleman argues, ‘the individual could be said to be dominus or proprietor of his body but only in the sense that his directive intellect was ultimately charged with the care of his body so that one could say he had a ius or right, which was really a power to care for himself, from God, and so long as he did no injury to others’. To emphasise the difference between medieval and modern notions, Coleman confirms that the ‘kind of absolute property right in oneself that could imply that the self was alienable was not possible for medieval scholastics or indeed for Locke since it would give a licence to suicide or self-mutilation, which under natural law is forbidden’ (Coleman 2005, 135).

Franklin expresses a good understanding of the nuances of historical and conceptual change, important to this fourth perspective, in his work on Bodin. He makes a useful point in the context of making a judgment that Bodin’s insistence on indivisible sovereignty was wrong and that the scholars before Bodin were simply confused in classifying some regimes as instances of ‘mixed sovereignty’. Franklin describes how, in the sixteenth century, ‘the king was still addressed as sovereign even though he might require the consent of the Estates or other body [because of their customary legal rights and ‘privileges’] for the conduct of some of his affairs’ (Franklin 1992, xviii).

Loughlin underlines the way the instability and stretched meanings of political terms leads to the conclusion that no single attribution can be taken as authoritative, and that these terms are slippery and overlap. He distinguishes dominium, that is force and material power over another—‘the power of mastery’—from political power, which is ‘a product of a relationship between individuals (natural persons) that, in form at least, conceives them to be equals’. Loughlin argues soundly that this political power ‘becomes public power proper only when taking some institutional form’, and when it retains a sense of ‘some form of partnership’, and of ‘formal relationship constituted by a system of rules’ (Loughlin 2003, 62).

Teschke supports the case for multiple conceptions of sovereignty by arguing convincingly that the medieval, absolutist and modern conceptions of sovereignty need to be distinguished from each other. He also has insightful comments on the relationship between sovereignty and politics. While he takes the view that ‘a strict historical semantic would avoid the terms sovereignty or state’, nevertheless he argues that ‘for comparative purposes it is acceptable to say that sovereignty was “parcellized” or “divided”, in the sense that each lord was a “fragment of the state”’. However, he adds, ‘since the feudal “state” was neither a corporate entity nor a “legal person”, since it lacked an abstract institutional existence beyond the life-spans of individual rulers, it is more precise to define the political in terms of a concrete praxis of personalized domination’. Indeed, Teschke notes, ‘since the medieval world lacked a “state”, it also lacked an “economy” and a “society” as separate institutions with autonomous mechanisms of social integration and developmental logics’. Moreover, it also follows from the ‘interpersonal character of medieval domination for determining the sphere of the political’ that because ‘domination was personal, noble families—dynasties—were perforce the “natural” transmitters of political power’ (Teschke 2003, 62). Adding weight to the notion of the utility of the idea of sovereignty prior to the modern conception of it, Teschke refers to ‘Roman law and the Justinian conception of undivided sovereignty flowing from one supreme source’ (Teschke 2003, 179).

Teschke also works with a concept/concept distinction when he usefully classifies ‘geopolitical core institutions’ central to conceptions of sovereignty. The term ‘geopolitics’ refers here to ‘relations between public carriers of political power’ (Teschke 2003, 12), ‘such as political authority and public power, peace and war, territoriality and border, legitimation and coercion, empire-building and geopolitical fragmentation, alliance formation and the resolution of conflicts’. Teschke identifies such connections between ‘public carriers of political power’ as having different meanings and references in different historical periods (Teschke 2003, 4).

The concept/conception approach is also evident in Bartelson’s insightful work when he takes the view that something like sovereignty has been a generic feature of political communities. He says that ‘most human societies have confronted problems of power and authority, and where they should be located’ (Bartelson 1995, 3). In the context specifically of European political thought, he argues, the trend has been that the source and locus of ‘authority is distributed downwards in a slow chronological series, ranging from God to king, and then from king to people’ (Bartelson 1995, 4). He makes a case that a different and ‘specific arrangement of sovereignty’ is found in three historical periods, which he calls the Renaissance, the Classical and the Modern, the last of which is characterised by the modern subject, the modern state and the international system (Bartelson 1995, 7).

Within this context, Bartelson argues that among the ‘conceptual antecedents’ to sovereignty, articulated within the ‘logical conditions of possibility within theological, legal and political writings in the Middle Ages and in the Renaissance’ (Bartelson 1995, 88), there is ‘an array of concepts with overlapping and sometimes contradictory connotations, as as potesta, potential, majestas, gubernaculums, regnum, imperium, dominium, status, republicae’ (Bartelson 1995, 263). He also cautions that the framework in which to discuss sovereignty is also made more complex by the recognition that before the modern age, there was ‘no object of knowledge called the international system’ (Bartelson 1995, 137). According to Bartelson, the ‘very tem sovereignty was not present within political discourse until Beaumanoir introduced it in the thirteenth century’, and that even after that date, there is no autonomous discourse on sovereignty, if we by autonomous mean a discourse which has a single system for the formation of statements’. Consequently he uses the term ‘mytho-sovereignty’ to refer to ‘the mimetic paradigm of rulership in the early and high Middle Ages, when the legitimacy of the ruler is founded on his resemblance with Christ or God’, and he uses the term ‘proto-sovereignty’ to refer to ‘the polity-centred paradigm of rulership in the late Middle Ages, when the legitimacy of the ruler derives from more profane sources’ (Bartelson 1995, 88–9).

Bartelson makes the case that a profound shift marks the meaning of sovereignty from the late Middle Ages and the Renaissance to what he calls the Classical Age, the sixteenth, seventeenth and eighteenth centuries. He contrasts sovereignty in the earlier period, as ‘a mark of superiority or a sign of divine origin, known and disseminated by analogy, resemblance and exempla’, with the later period when ‘the concept of sovereignty becomes linked with individuation, identification and order. Sovereignty here, for Bartelson, ‘has the power of individuation since [as Bodin noted] it is “it selfe a thing indivisible”’. As a result, Bartelson maintains, ‘sovereignty itself becomes “sovereign” in political discourse as [again in Bodin’s words] “the most necessarie point for the understanding of the nature of a Commonweale”’ (Bartelson 1995, 138). Sovereignty is a principle of identification in the sense that it is no longer ‘exclusively linked to the person of the prince’, but is also identified with the political unit. Bartelson argues that in this period, sovereignty ambivalently referred to both ‘the intense divinisation and personalisation of authority in the hands of the sovereign’, and to ‘an abstract notion of a naturalised state as a symbol of depersonalised authority’. Sovereignty became in this period also a principle of order, in the sense that ‘its concept defines the domain of objects of an autonomous discourse, a science of states’ (Bartelson 1995, 139).

Reus-Smit also employs a concept/conception procedure when he argues for sovereignty as a concept with a history going back to Ancient Greece, whose meaning has been underpinned by values current in different historical situations, and so revised and recast over time. He relates that when ‘sovereign states were constructed in ancient Greece, when they were championed again in Renaissance Italy, when absolutist states were carved out of the declining heteronomous order of medieval Europe, and when the age of revolutions spurned the development of modern nation-states’, the ‘idea of sovereignty did not emerge in a moral vacuum’. In each case, he notes, sovereignty ‘had to be justified, and that justification has always taken the form of an appeal to higher-order values’ or moral purposes. Such values and purposes, Reus-Smit continues, ‘define the identity or raison d’etre of the state, whether they entail the pursuit of justice’, the ‘cultivation of bios politikos, a distinctive form of communal life’, the ‘achievement of civic glory’, the preservation of a divinely ordained, rigidly hierarchical social order’, or the advancement of individuals’ rights and the celebration of the nation’ (Reus-Smit 2001, 527–8).

This way of looking at sovereignty is valuable for breaking down the not very helpful ancient/modern sovereignty formula, for seeing the history of sovereignty as a history of changing conceptions tied to specific circumstances, and for showing in this way the constructedness of sovereignty. However, it is worth noting that Reus-Smit’s theory is less convincing when he argues that configurations of sovereignty are always determined by revolutionary ideals of legitimate statehood and new ideas about the moral purpose of the state challenging the existing political order. In his tripartite scheme of sovereignty, ideals of moral purpose, and political order, it is possible that the other two elements could also drive change, not just the ideals of moral purpose. Reus-Smit’s theory also places too much weight on moral considerations in politics, when sometimes instrumental and strategic considerations can be recognised as playing a stronger part, and sometimes all considerations are so intertwined that it would be difficult to isolate moral considerations as primary.

Reflecting back over the first and second lines of argument, we can see that they contain a dominant and triumphalist narrative about modern sovereignty that sees it emerging from the entanglement of politics with religion and dynastic monarchies in the medieval period, equates it with state sovereignty as a new secular, rational form of political organisation based on nations, and regards it as bringing about a progressively more egalitarian expression of popular sovereignty. From the perspective of the fourth line of argument it is possible to contest all these points. First, it is clear that the past is misrepresented as an irrational web of loyalties and obligations, that modern sovereignty is misrepresented as a rational and neutral system, and that both are much more diverse. Secondly, there is a strong case for the view which highlights the powerful but mythical status of state sovereignty and which identifies the presence of continuing diversity, for instance in that not all political communities even today are states. Thirdly, one can argue strongly against the teleological view and demonstrate the diversity of conceptions. The canon of thinking about sovereignty does not simply support the view of the emancipatory nature of modern sovereignty. One can point, for example, to the way that the only really positive conception of popular sovereignty in the mainstream canon is Rousseau’s and he is considered equivocally from the liberal perspective on the grounds that too much popular sovereignty can result in totalitarianism. Moreover, Schmitt’s theory is no more egalitarian than was Hobbes’s.

Having made a case for the fourth argument, for the continuity of a thin concept and existence of a multiplicity of thick conceptions of sovereignty over time, we turn to Bodin.

BODIN

Jean Bodin was born in 1529 or 1530 in Angers in France and died in 1596. He made an early change of career after three or four years in a Carmelite order, and then gained an up-to-date humanist education in Paris. Franklin describes Bodin as a ‘religious maverick’ (1992 xii) although he continued throughout his life to observe Catholic religious practice. After studying and teaching law but not gaining a permanent appointment, Bodin became a barrister in the Parlement, and was given a number of administrative and political appointments under Henry III’s government in France in the mid-sixteenth century. He was very proud to be elected to the assembly of the States General in 1576, but his act of trying to persuade the assembly to resist the king’s taxation proposals (despite his being a public figure recognised as an enlightened royalist and his being against civil war) meant an end to further advancement in public office. His treatise on public law and policy, Six livres de la république, first written in French and now translated as Six Books of the Commonwealth, was published in 1576, during the French religious wars, to considerable acclaim.

To contextualise further, the Six Books was published sixty years after two crucial events had taken place. Publication occurred sixty years after Luther nailed his Ninety-Five Theses to the door of the Castle Church at Wittenberg, which initiated the Reformation, the Protestant challenge to the hegemony of the Roman Catholic Church in Europe. The appearance of the Six Books also happened sixty years after Machiavelli’s works were written, cautioning against the inevitable corruption of political forms. Bodin’s approach is more legal and philosophical than Machiavelli’s, but like Machiavelli, Bodin places great significance on the idea of power in his understanding of the state. This account of Bodin’s theory of sovereignty is indebted to Quentin Skinner’s fine Foundations of Modern Political Thought. Volume Two and Julian Franklin’s edition of Bodin’s writings on sovereignty.

Four chapters in the first and second books of the Six Books deal specifically with the definition of sovereignty, the marks of sovereignty, the refutation of mixed forms of state, and with whether it is permissible to kill a tyrant. These chapters on sovereignty, while clearly central to Bodin’s purpose, are part of a much broader political theory, examining the way political communities differ from the family and from patriarchal power; providing a detailed exploration of monarchy, aristocracy, and democracy; a discussion of senates, magistrates and other powers within the political community; consideration of the cyclical character of commonwealths and the role of officials and princes in them; an examination of the diversity of commonwealths and peoples, and of alliances and treaties between princes; and surveying matters such as censorship, finance and coinage; ending with a comparison demonstrating that royal monarchy is the best form of state.

Bodin’s Six Books was shaped to a considerable extent in reaction to the intense religious and political conflict between Catholics and Huguenots which threatened the unity and survival of the French monarch. The Huguenots argued that the religious duty to resist tyrannical monarchs could be translated into the political concept of a moral right of resistance. The Puritans in the English Civil War a century later argued the same case, and Locke gives the classic liberal articulation of this political right of resistance at the end of the seventeenth century. In Bodin’s earlier work, written in Latin, the Method for the Easy Comprehension of History of 1566, he had shared with a group of other writers a plea for toleration towards the Huguenots, and as Vincent notes, ‘Bodin was a member of the politiques,a Catholic royalist group who advocated some toleration’ (Vincent 1987, 34). Interpreters of Bodin have different views about whether the move from the Method to the Six Books represents a continuity or a sharp break. While this debate does not have a crucial bearing on the examination of Bodin’s ideas here, it is important for assessments of Bodin’s wider theory. Vincent characterises the positions in the debate. For Franklin the Six Books involved a dramatic shift from the more constitutionalist view of his earlier work. The line of argument is that in the wake of the force of the Huguenots’ claim for constitutional limits on monarchical power, Bodin in the Six Books abandoned his earlier constitutionalist position. Vincent argues that, for Franklin, Salmon and Skinner the Six Books was ‘a reaction to the views of Huguenot monarchomarch constitutionalism after 1572’, and the work advocated more limited forms of sovereignty. On the other side of the debate, Vincent contends that Preston King however, ‘maintains that the Six Bookes simply “argues more forcefully than the Methodus for unrestrained public power—not that it contains fewer arguments for greater restraint upon public power”’ (Vincent 1987, 52).

Another aspect of the historical context in which Bodin asserted this conception of sovereignty is attested to by Vincent. Vincent notes that the ‘independent life of many thirteenth-century Italian cities fostered the image of sovereign units independent of the prince’. He quotes A J and A W Carlyle to the effect that ‘as late as the middle of the thirteenth century the civil or Roman lawyers were unanimous in holding that the populus was the ultimate source of all political authority, that they recognised no other source of all political authority than the will of the whole community’ (Vincent 1987, 110).

The most important concepts in Bodin’s political theory—examined in turn below—are the rejection of a right of resistance, the theory of sovereignty, and the idea of the state. The three concepts are closely inter-connected. What emerges crucially from this investigation is that Bodin theorised the ‘state’ as the locus of power rather than theorised absolute monarchy, and that while he places limitations on the power of the prince they do not mirror corresponding rights of resistance by the people, legislative representative or other officials. What is most distinctive about Bodin’s theory of sovereignty is the notion of sovereignty as majesty, within the context of the office-holder theory and asymmetrical limitations just noted. The general features highlighted in Bodin’s theory include sovereignty as the highest legal authority, sovereignty as absolute and indivisible, and sovereignty as a regulative ideal establishing political stability and identity.

As Skinner assesses, the Six Books of the Commonwealth contains several crucial lines of argument, the first of which is an uncompromising defence of the power of the French monarchy, in the form of a theory of sovereignty. Sustaining the conception of sovereignty is a compendious and wide-ranging wealth of scholarship in the Six Books drawn not just from French history but from the histories and legal codes of other contemporaneous European countries and ancient Rome and Greece, as well as further afield. Examples from Poland, Denmark, Persia, and Egypt are regularly used. This feature of Bodin’s writing serves not just to illustrate his points but also to form an interpretation of history to support his particular conception of sovereignty. One of the primary ways in which Bodin uses his examples is as evidence for his argument that his conception of sovereignty is and always has been a necessary feature of all political communities. In illustrating his theory with this breadth of knowledge, Bodin often—significantly—uses the rhetorical strategy of finding other and earlier authors to be ‘confused’. The breadth of Bodin’s intellectual background is indicated by Vincent, who compares the rationalistic and utilitarian features of Hobbes’s thinking and his scepticism about religion with the view that ‘Bodin’s ideas on politics were rooted in his interests in astrology, climatology, geography and cosmology’ (Vincent 1987, 51). The Six Books also contains, as Skinner attests, an ideological assault on and repudiation of the Huguenots’ constitutional case, and a call (that directly follows from the logic of the theory of sovereignty) for the outlawing of all theories of resistance. Bodin held that no public act of resistance against a legitimate sovereign by a subject can ever be approved or vindicated. Skinner also underlines that the Six Books contains a call for order, peace and political harmony to be recognised as the primary value in political life, even above liberty. In contrast with his earlier tolerationist and constitutionalist emphasis in the Method, it was the fragility of order and the importance of political stability that now preoccupied Bodin.

Lindahl makes an observation in support of this view, linking Bodin’s theory to a deeper ‘loss of order’ than the religious wars on their own created. He argues that the mainstream reading ‘has him devising the concept of sovereignty to hold at bay the disintegration of society in the face of bitter religious wars’. But, Lindahl notes, this interpretation does not account for why sovereignty, ‘became a philosophical theme at the threshold of modernity; after all, there was no dearth of civil wars prior to Bodin’s time’. He contends that the significance for Bodin of these civil wars was that they were occurring in the context of a more profound ‘loss of order’, the loss of a unifying framework previously supplied by the Catholic Church and the political institutions of the papacy and the Holy Roman Empire. Lindahl identifies this loss of order with the inauguration of modernity, politics in a secular framework, and political community as a unity achieved in the context of contingency (Lindahl 2003, 88).

Once the basic doctrines of no right of resistance and the primacy of order have been propounded, Bodin does introduce a qualification—if the ruler is a tyrant who has usurped power, he can be lawfully slain. This qualification is perhaps surprising, given Bodin’s reputation for theorising absolutist sovereignty, but he is able to propose the qualification without compromising his theory because what he seeks to establish is absolute sovereignty through law, or legal absolute sovereignty. So, on the question of killing a tyrant he says unequivocally that ‘a tyrant … may be justly killed without form or shape of trial’. Again, deliverance by a virtuous foreign prince from a sovereign tyrant who is ‘cruel, oppressive, or excessively wicked’ is ‘glorious and becoming’, in Bodin’s view (Bodin 1992, 112–13). However, Bodin adds, if the tyrant ‘becomes legitimate’, in that ‘having encroached upon sovereignty by force or fraud, he has himself elected by the Estates’, then that ‘solemn act of election is an authentic ratification of the tyranny’, and it is not permissible to kill him (Bodin 1992, 111).

Bodin does not regard his validation of killing tyrants as in any way providing an ambiguous clause licensing widespread claims that sovereigns were tyrants and so killed. Secure in his belief in the lucidity of the close abstract relation between the concept of law as legitimate and the concept of sovereignty, Bodin evidently thinks he has made it sufficiently clear that such exceptions to absolute sovereignty do not in any way infringe the fundamental argument against a right of resistance. He asks rhetorically, ‘if it is not permissible for a subject to pass judgment on his prince, or a vassal on his lord, or a servant on his master—in short, if it is not permissible to proceed against one’s king by way of law—how could it be licit to do so by way of force?’ (Bodin 1992, 115).

Bodin’s assault on the ideas and conduct of the Huguenots is translated in the Six Books into a positive theory of sovereignty. The importance Bodin attaches to sovereignty is seen in his designation of it as ‘the principal and most necessary point for the understanding of the nature of a commonwealth’. As Skinner argues, since the ‘aim of government must be to secure order rather than liberty, any act of resistance by a subject against his ruler must be altogether outlawed’ in order ‘to preserve the fragile structure of the commonwealth’. In this way, Skinner notes, Bodin is ‘drawn by the logic of his own ideological commitment into arguing that in any political society there must be a sovereign who is absolute’ (Skinner 1978, 287).

By ‘absolute’ Bodin means something quite precise, the asymmetry of unaccountability to another of a sovereign who governs but is never governed. Bodin adopts the view that ‘persons who are sovereign must not be subject in any way to the commands of someone else and must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others—which cannot be done by someone who is subject to the laws or to persons having power of command over him’ (Bodin 1992, 11). We can see how the terms ‘majesty’ and ‘absolute’ do crucial work for Bodin in his theory of sovereignty when we observe that, in practice, this means for Bodin that ‘the main point of sovereign majesty and absolute power consists of giving the law to subjects in general without their consent’ (Bodin 1992, 23). It is in the nature of sovereignty, for Bodin, that a sovereign prince ‘cannot tie his hands even if he wished to do so’ (Bodin 1992, 13). Bodin begins Chapter 8 of Book 1 with the statement that sovereignty ‘is the absolute and perpetual power of a commonwealth’ (Bodin 1992, 1), and he defines sovereignty as ‘the most high, absolute and perpetual power over the citizens and subjects in a commonwealth’. For Bodin, a commonwealth is ‘a just government, with sovereign power’ (Bodin 1992, 1). The absolute sovereignty of the sovereign protects him, by definition, from lawful and well as from unlawful resistance. In this way, the meaning of sovereignty is in part constituted by the rejection of the right of resistance.

Philpott introduces an important point when he defines absolute sovereignty as the ‘scope of affairs over which a sovereign body governs within a particular territory’, but poses the question as to whether that requires it to be ‘supreme over all matters or merely some’. Philpott notes that initially, ‘non-absoluteness might seem to contradict sovereignty’s essential quality of supremacy’. After all, if ‘sovereignty is supreme, how can it be anything but absolute?’ Indeed, this is the line taken by James, that sovereignty ‘is either present or absent, never only partially realised’ (James 1986, 112). However, Philpott makes a case to ‘understand absoluteness … to refer not to the quality or magnitude of sovereignty, for if sovereignty were less than supreme in any particular matter, it would not indeed be sovereignty at all’. It remains the case, though, that ‘a holder of sovereignty need not be sovereign over all matters’ (Philpott 1999, 571).

Bodin stringently distinguishes the perpetual possession of sovereignty from all the many ways in which there may be ‘trustees and custodians of that power until such time as it pleases … the prince to take it back, for the latter always remains in lawful possession’. The prince still remains ‘lawfully possessed of power and jurisdiction, which the others exercise in the manner of a loan or grant on sufferance’ (Bodin 1992, 2), or on commission. His power is undiminished, no matter how much power is delegated for how long a period of time, and is ‘revocable at the good pleasure of him who granted it’ (Bodin 1992, 6). Bodin is at pains to reaffirm that sovereignty ‘is not limited either in power, or in function, or in length of time’ (Bodin 1992, 3). And when Bodin adds that ‘it makes no difference whether the officer is high or low’ (Bodin 1992, 2), he is affirming that the same rule applies to magistrates, regents, deputies, lieutenants, governors, agents, guardians, and senates as to less important officials. None can have a legitimate veto over or right of appeal against the sovereign power, and all similarly exercise authority or power (even if it is ‘absolute power’) only on condition or proviso of the sovereign (Bodin 1992, 5). As Bodin emphasises, the ‘power of commanding and judging, and the action and the force of the law, do not lie in the person of the deputy’. Sovereignty itself is only granted when a sovereign dispossesses and strips himself of power and vests it in another, transferring ‘all his power, authority, prerogatives, and sovereign rights to him and placed them in him, in the same way as someone who has given up the possession of, and property in, something that belonged to him’ (Bodin 1992, 7).

While Bodin often refers to the sovereign as ‘prince’, he also states that, strictly speaking, the status of a prince conveys that he is merely ‘first in the state’ (Bodin 1992, 18). Moreover, it follows from the logic of his argument that, for Bodin, ‘sovereignty given to a prince subject to obligations and conditions is properly not sovereignty or absolute power’ (Bodin 1992, 8). Furthermore, Franklin points out that, perhaps surprisingly, ‘Bodin does not reject election as inherently incompatible with the principle of monarchy, but only the idea that the power to elect entails a power to depose’ (Franklin 1992, 19). It also follows, for Bodin’s conception of absolute sovereignty, that no power of any form with political import can be held by an independent agent. In consequence the sovereign can never be legitimately hindered by any of his subjects, even if his commands are not honest or just. Furthermore, as Franklin notes, the king’s absolute sovereignty eclipses the right to exercise imperium that had been held by magistrates and public officers in more decentralised medieval practice. Now such a right belonged only to the king, and even high officers of state only acted according to a delegated authority (Franklin 1992, xiv).

Sovereignty for Bodin refers to the locus of effective power, held in a determinate location. According to Bodin, it follows from absolute sovereignty that it is indivisible. Some later theorists have taken the view that sovereignty need not be indivisible, on the grounds that it is perfectly possible to share or distribute sovereignty, for instance in the idea of the state as a federation or corporation, without sovereignty dissolving. This comparison throws into relief the radical force of Bodin’s logic. Indeed, Schmitt identifies a strong parallel between the conceptions of sovereignty generated by the political crises of sixteenth-century France and inter-war Germany. He claims that, ‘despair about the religious wars led the well-known originator of the modern concept of sovereignty, Jean Bodin, to become a decisionist in the sense of sovereign state power’ (Schmitt 1996, 43). This quotation is also interesting in that it shows how closely Schmitt identifies the origin of modern sovereignty with his own concept of decisionism. Schmitt’s appropriation of Bodin is in many ways not surprising, given the resemblances between the theories of these two lawyers steeped in jurisprudence who both conceptualised sovereignty primarily in relation to the law but as crucially overriding the law.

What Bodin added to previous discussions about these matters, as Skinner outlines so well (1978 287–9), were the idea that sovereignty is analytical, a new conception of forms of rule, and the essentially legislative quality of sovereignty. The central point of the idea that sovereignty is analytical is not just that it is an abstract concept. Moreover, the idea of sovereignty as analytical does not just contrast with the idea of sovereignty as a historical aggregation of the ‘marks’ or necessary prerogatives of the sovereign that in concert configured absolute sovereignty, or with the idea of sovereignty as a prudential basis for political stability. Sovereignty as analytical also means much more forcefully for Bodin that, as Skinner puts it, ‘the doctrine of non-resistance’ is ‘an analytical implication of sovereignty’, and that absolute sovereignty is ‘an analytical implication of the concept of the state’ (Skinner 1978, 287). What we see here is the tight conceptual interconnection between the rejection of the right of resistance and the meaning of sovereignty.

Coming now to the idea of the state, for Bodin the specification of sovereignty in terms of ‘marks’ of sovereignty is his way of registering that sovereignty is signalled in attributes that belong to the office rather than to the person, and are exercised by the office-holder rather than shared with subjects. Loughlin’s argument that the differentiation of public power from private power is central to the meaning of modern sovereignty is something that is found in Bodin. Loughlin’s view, that ‘political power derives neither from force nor from the power that property confers’, and that it ‘cannot be possessed like property, nor applied like force’ (Loughlin 2003, 61), reflects Bodin’s insistence that sovereignty lies in the monarch’s office and not in his private property or power as a private person. Bodin’s insistence on the sovereign monarch as office-holder can be seen as drawing on an older tradition. Loughlin, for instance, notes that the concept of office, officium, had previously been used to describe the power of office-holders in ecclesiastical institutions, and ‘drew concurrently upon the dual Roman and canonical tradition of service to the public realm and the common good’. He also confirms that officium indicated a ‘position of some permanence; the position assumes the status of an institution’ (Loughlin 2003, 64).

Bodin devotes a chapter (Chapter 10 of Book I) to ‘the true marks of sovereignty’, and does list ‘marks’ of sovereignty in the conventional manner—the power to legislate, to declare war and peace, hear final appeals, appoint and remove higher officials, impose taxes, grant pardons and dispensations, determine the coinage and regulate weights and measures, and receive oaths of fealty and homage (Bodin 1992, 58–9). Bodin added extra ‘marks’ in the Six Books to those listed in the Method, and elevated the legislative power to first place. It is critical to Bodin’s argument in the Six Books that the power to make and repeal laws is primary. Indeed it follows from the logic of the argument, for Bodin, that this legislative power ‘includes all the other rights and prerogatives of sovereignty’, such that ‘strictly speaking we can say that there is only this one prerogative of sovereignty, inasmuch as all the other rights are comprehended in it’ (Bodin 1992, 58). However, the lesser significance of the ‘marks’ of sovereignty for Bodin is seen in that the underlying contention in the chapters on sovereignty is that the idea of the pre-eminence of the state cannot be fully equated with such a list of ‘marks’. The concept of sovereignty denotes for Bodin an exclusive ‘high, absolute and perpetual power over the citizens’. ‘Majesty or sovereignty’ is located in the state, and in the political supremacy expressed in the sovereign person. In this way we find in Bodin the first systematic modern use of the term ‘sovereignty’.

Franklin argues that Bodin derived the ‘marks’ of sovereignty from ‘the concept of supremacy itself’, and that Bodin’s line of reasoning asked ‘what prerogatives a political authority must hold exclusively if it is not to acknowledge a superior or equal in its territory’ (Franklin 1992, xv). Franklin’s case is strengthened by Bodin’s clear message in Chapter 1 of Book II, that the combined set of prerogratives of sovereignty themselves, as well as the logic of the principle of sovereignty, is indivisible, because the right to legislate assumes all the other marks, and because they cannot be considered separately since functionally they imply each other (Bodin 1992, 104). Franklin argues persuasively that Bodin’s use of the term iura (rights or prerogatives) in his Latin edition of the Six Books comes closer to his meaning than does his use of the term marques (marks) in the original French edition. According to Franklin, the French term suggests that ‘the problem was to show the ordinary subject how to discern which of the many authorities placed over him was entitled to ultimate obedience’. However, Franklin maintains, ‘since the distinctive marks of a sovereign in Bodin’s account are a state of juridical prerogatives (and not force or ceremonial honors per se), the idea perhaps is better expressed by the Latin’ (Franklin 1992, 46).

Bodin defines the marks or indications of sovereignty in the following way—in order to be able to recognise a person asa sovereign, ‘we have to know his attributes (marques, nota), which are properties not shared by subjects’ (Bodin 1992, 46). The marks of sovereignty are those things that are ‘proper to all sovereign princes to the exclusion of all other lords having administration of justice, magistrates, and subjects’. These, he says, are ‘by their very nature … untransferable, inalienable, and imprescriptible’ (Bodin 1992, 87). Bodin thus distinguishes sovereign rights from the more minor regalian rights that can apply to ‘dukes, counts, barons, bishops, officers, and other subjects of sovereign princes’ (Bodin 1992, 48), and concludes that ‘the prerogatives of sovereignty have to be of such a sort that they apply only to a sovereign prince’ (Bodin 1992, 49). Thus pronouncing justice, appointing and removing officers, and taking counsel on affairs of state, are not marks of sovereignty (as Aristotle had contended), according to Bodin, because these are all things that can be shared with subjects or officers (Bodin 1992, 50). The same applies to the laws of a magistrate, which bind only those under his jurisdiction. In contrast, ‘the power of the law lies in him who has the sovereignty and who gives force to the law’ (Bodin 1992, 55). This is the primary prerogative of the sovereign, and is distinguished from the less important edicts of magistrates and decrees of a Senate. In addition, the power to order the death penalty is a punishment attached only to the laws of a sovereign and not to the orders of lesser agents (Bodin 1992, 56).

In his earlier works Bodin made two significant changes to current humanist legal scholarship at the time that was dissatisfied with the legacy of Roman law at their disposal. Bodin sought to derive the principles of law not from the defective and culturally-specific Roman source but from a systematic inquiry into (and perhaps reinterpretation of, to give historical validity to his specification of sovereign power) the legal codes of a variety of countries, and he developed a notion of the locus of sovereignty adequate for public law summed up in five essential rights. Franklin highlights Bodin’s radical innovation here in relying neither on the Roman code that had been primarily concerned with private law, nor on ‘the lists of regalian powers taken from feudal law [that] were mere catalogues of particular privileges’ (Franklin 1992, xvi).

Skinner highlights the second change when he identifies Bodin as having significantly added to previous discussions of forms of rule. For Bodin a vital distinction needs to be made between the system of sovereign rule, found in the state, and the various forms of organised political community over which the sovereign rules. Previous categorisations of forms of rule by political theorists had tended to identify three approved ones (monarchy, aristocracy and democracy), three corresponding defective ones (tyrannies by one, by several, and by all), and the mixed state, which was often regarded as the most stable form of rule. In contrast with this commonly-held categorisation, Bodin argued that only monarchy, aristocracy and democracy are valid forms of rule because only in these forms is the sovereignty relationship exercised correctly. The defective forms of rule are thereby disqualified, and crucially there can be no valid mixed state, according to Bodin, since by definition sovereignty must be held by some identifiable person and persons within the commonwealth. Franklin underlines that Bodin’s antipathy to the mixed state is not ‘merely prudential or political’, since for Bodin the ‘unity of a legal system seemed logically to require the unification of power in a single ruler or single ruling group’ (Franklin 1992, xvii).

Another innovation and radical change from past practice identified by Skinner follows from Bodin’s idea that sovereignty has an inherently legislative quality. Franklin also indicates how Bodin’s elevation of lawmaking to the supreme prerogative of a sovereign represents a fundamental shift. He notes that throughout Bodin’s discussion of the mark of sovereignty concerning appeals, ‘the term “sovereignty” is linked to the term “appeal” almost as a synonym, as though echoing an older usage in which the primary meaning of sovereignty was the right to hear appeals in last instance’ (Franklin 1992, 134). Bodin stresses the importance of being able to make law in the constitution of the meaning of sovereignty when he argues ‘for a sovereign prince to have power over the laws in order to govern well’ (Bodin 1992, 24). Franklin emphasises that for Bodin this legislative power includes constitutional change (Franklin 1992, xvi). The highest, and in a sense single, ‘mark’ of sovereignty is now conceived as that of making laws for subjects without their consent, in contrast with the previous tradition of thinking in which the sovereign’s capacity to judge was primary and the key ‘mark’ of sovereignty was the appointment of magistrates.

It follows from Bodin’s line of argument that the sovereign is not subject to his own laws nor those of his predecessors, and that the sovereign’s role is no longer understood in terms of the normative commitment to, as Skinner notes of the earlier period, ‘upholding the sense of justice already embodied in the laws and customs of the commonwealth’ (Skinner 1978, 289). Bodin’s sense of the sovereign standing above the legal order, of all legal codes as grounded in culturally-specific norms requiring elucidation, and the impossibility of an abstract universal science of jurisprudence trumping the edicts of the sovereign prince, would also appeal strongly to Schmitt. At the same time, however, Bodin sought to provide in the Six Books an historically and sociologically-informed account of the laws common to all successful commonwealths (Skinner 1978, 292–3).

However, again perhaps surprisingly in the light of his modern reputation as the annihilator of constitutionalism, for Bodin sovereignty is not unlimited. For while Bodin defined sovereignty as absolute, this did not imply for him that sovereignty is without limits. There are three important limitations on the sovereign’s sovereignty. These limitations are things whose authority is in some sense prior to the authority of the sovereign, namely the male royal line, the distinction between office and individual office-holder, and the role of natural law. Bodin accepted the condition on sovereignty set by the customary Salic law, the law that guaranteed the succession of the male line to the throne, ensuring that France had only kings and not queens. The next limitation was the idea that the ruler has a ‘use only’ rather than full possession of lands, attached to the role and position of sovereign. The palaces and estates of the king belonged to the office of monarch, not to the monarch as a private man. For Bodin, the sovereign and the commonwealth are not identical, and the private ‘patrimony of the prince’ must be distinguished clearly from ‘the public treasure’ (Bodin 1992, 42). As Skinner aptly puts it, ‘the domain is annexed to the sovereignty rather than the sovereign’ (Skinner 1978, 294). Franklin identifies the specific nature of these limitations when he notes that both the rule prescribing the succession to the throne and the rule ‘forbidding alienation of the royal domain without consent’, were ‘designed to keep the state intact, rather than to limit the royal right of governance’ (Franklin 1992, xxv).

The final limitation was that while the form of positive law was made by the sovereign alone, its contents must accord with natural and divine law. Bodin argues that ‘if we say that to have absolute power is not to be subject to any law at all, no prince of this world will be sovereign, since every earthly prince is subject to the laws of God and of nature and to various human laws that are common to all peoples’ (Bodin 1992, 20). He is at pains to stress the gravity of the law of God and of nature, to which the sovereign ‘is more strictly bound than any of his subjects, from which he cannot be dispensed either by the Senate or the people, and for which he is always answerable to the judgement of God, whose inquiry … is very rigorous’ (Bodin 11992, 31). This is affirmed by Bodin in a hierarchical argument about ascending legal instruments—whereby he argues that ‘just as the contracts and testaments of private persons cannot detract from the ordinances of magistrates, nor the edicts of magistrates from custom, nor customs from the general laws of a sovereign prince, so the laws of sovereign princes cannot alter or change the laws of God and of nature’ (Bodin 1992, 32). He emphasises that sovereignty is ‘the power of overriding ordinary law’, but not ‘the laws of God and of nature’ (Bodin 1992, 13). It is also worth noting, as Philpott rightly observes, that while natural law was understood at this time as a universal standard of morality, it ‘did not prescribe offices or powers in the way that the United States Constitution, for instance, does’ (Philpott 1999, 579).

It might be considered that this point, by reinforcing the prior duty of the sovereign to natural law, kept open qualifications to a monarch’s absolute sovereignty—such as that subjects have a duty to disobey if the sovereign’s orders run counter to natural and divine law; that the ruler must honour contracts, including those with subjects, since they involve a promise and reciprocity that derive from natural law; that on the same grounds subjects must be allowed to own private property that cannot be touched by the ruler; and that, as a consequence, the taxation of subjects requires their consent. Bodin does indeed hold that it ‘is not that the prince is bound by his own or his predecessors’ laws, but rather by the just contracts and promises that he has made, whether with or without an oath, as is any private individual’, and stresses the difference between laws and contracts (Bodin 1992, 13–14). Skinner makes a strong case that the emphasis Bodin places on the importance of natural law overcomes any inconsistency between his pointed defence of subjects’ right to be taxed only with their express consent and his definition of sovereignty as a power of ‘giving laws to the subjects in general without their consent’ (Skinner 1978, 297).

However, as Franklin stresses, such qualifications do not in practice inhibit the sovereign prince. The restrictions that Bodin placed upon the king, for instance regarding taxation of subjects’ property, crucially ‘could never be a ground for legitimate resistance, since for violations of the law of nature the king was answerable to God alone’ (Franklin 1992, xxiv). In addition Bodin argues that while a king cannot justly set aside a promise made to subjects, nevertheless he can do so without his subjects having any right of appeal (Bodin 1992, 14). As a result, for Bodin, ‘neither the law of nature nor the fundamental law could justify a challenge to absolute authority, or resistance to a sitting king’. In sum, Franklin argues, these limitations on the sovereign’s power, rather than specifying possible sources of popular sovereignty and resistance, actually represent the ‘systematic elimination of binding institutional restraints’ that were a tightening up of previous constitutional practice (Franklin 1992, xxv). While they represent limitations on sovereign power, these limitations are no longer anchored in the stronger basis of binding customary law. In this way, as Franklin sums up, ‘Bodin had thereby undermined the legal force of checks upon the king’ (Franklin 1992, xxvi). Bodin’s stipulation that ‘he is absolutely sovereign who recognises nothing, after God, that is greater than himself’, and the blunt statement that ‘a sovereign prince … is answerable only to God’ (Bodin 1992, 4), are meant by him to be taken in a strong sense that disbars redress by subjects.

In making the argument so forcefully that sovereigns solely make positive law but are not bound by it, and are subject only to natural and divine law but can override it with impunity from the people, Bodin in effect contends that for the purposes of temporal life there is a strict divide between civil and divine law. His conception of sovereignty is very much a secular one, and natural and divine law and oaths owed to God by the sovereign can effectively be broken by the sovereign, insofar as they are in relation to his subjects, at his discretion. While natural and divine law is said by Bodin to be binding on the sovereign, the people do not have any right to ensure his obedience to it. Rhetorically, the great stress laid by Bodin on the solemnity of the sovereign’s obligation to natural and divine law has the contrary primary effect of reinforcing the powerlessness of his subjects in curbing the prince. Bodin’s statement, ‘it is the law of God and of nature that we must obey the edicts and ordinances of him to whom God has given power over us, unless his edicts are directly contrary to the law of God, who is above all princes’ (Bodin 1992, 34), might seem to suggest a right against the sovereign prince. However, Bodin argument that a sovereign’s infringements of natural or divine law are not subject to redress by the people precludes this possibility. Likewise, when Bodin states that ‘a prince who has contracted with his subjects is bound by his promise should … be beyond all doubt’ (Bodin 1992, 36), his meaning is, as Franklin notes, ‘not that the prince is bound by civil law, but rather that having made a contract in accordance with civil law, he is bound by the law of nature to keep it strictly’ (Franklin 1992, 36). In other words, the other party to the contract has no civil remedy on a sovereign’s breach of the contract.

The people have no basis for a claim against a sovereign’s violation of either natural equity or his good faith. Bodin’s argument that even the pope or the emperor cannot simply act without licence, and the statement that it ‘is a kind of legal absurdity to say that it is in the power of the prince to act dishonestly’, for ‘absolute power extends only to setting civil law aside … and that it cannot do violence to the law of God’ (Bodin 1992, 39), operate on the same basis. Bodin’s argument here is further augmented by his explicit rejection of an independent role for reason. He makes the argument that many authors ‘mistakenly say that a sovereign prince cannot ordain anything against the law of God unless it seems well founded upon reason’. Bodin ripostes, ‘what reason can there be to contravene the law of God’ (Bodin 1992, 32). At the same time, Bodin seeks to give some weight, but not to the extent of a right of resistance, to the prudential idea that ‘it is seemly for a sovereign prince to keep his own law, for there is nothing that makes him more feared and revered by his subjects, whereas, on the contrary, there is nothing that more abases the authority of his law than his own contempt for it’ (Bodin 1992, 31).

Thus, the net effect is that the third limitation on absolute sovereignty is no limitation at all. In addition Bodin withdrew constitutional safeguards for subjects that he had included in the Method. These checks were part of what was called ‘la police’, ‘la religion’ and ‘la justice’, and under which the limitations on absolute sovereignty had been specified. So while introducing conditions on sovereign power, Bodin specifically removed a range of traditional constitutional rights and checks of subjects, which previous practice had acknowledged, and which he himself had allowed in his previous work. The check of ‘la police’, whereby the king was limited by customary law, was revoked. Specific restraints on the ruler, derived from ‘la religion’ and ‘la justice’, were abolished. For instance, the powers of the Estates General apart from that of withholding consent to taxation were curtailed, and the coronation oath was no longer seen as qualifying the king’s powers. The ambiguous power of the French Parlement was curbed, according to Bodin’s theory, and he explicitly rejects the view of earlier authors who upheld the power of the Estates over the prince. Previously, as Franklin puts it, the ‘Parlements did not assert a veto on royal legislation, so much as a right of continued remonstrance until such time as their complaints were heeded’ (Franklin 1992, xxv). Bodin affirms a particular interpretation of the role of the Parlement when he insists that ‘the grandeur and majesty of a truly sovereign prince is manifested’ when ‘the Estates of all the people are assembled and present requests and supplications to their prince in all humility, without having any power to command or decree, or even a right to deliberate’, and ‘whatever the king pleases by way of consent or dissent, command or prohibition, is taken for law, for edict, or for ordinance’ (Bodin 1992, 18–19). A similar ambiguity concerning the independence of judges was likewise tightened up in favour of the sovereign, in Bodin’s account of sovereignty.

The effect of retracting these checks was to dramatically increase the scope of the power of government over the individual, defining—in a negative way—what subjects can and cannot do. The king’s explicit powers and discretionary powers were increased, and the idea that delegated powers could be reclaimed at will was clarified. Correspondingly, the authority of customary law and habitual practice was demoted, and the active role of natural and divine law minimised. Thus the limitations on the sovereign’s powers were severely diminished by the withdrawal of these constitutional safeguards protecting the subjects. However Bodin, probably sincerely, held that his conceptualisation of sovereignty was ‘compatible with civilised and law-abiding government’. As Franklin puts it, Bodin ‘confidently believed that the complaints and administrative pressures of the magistrates would restrain impulsive rulers, and he optimistically expected that the political value of the Estates was sufficient to assure their consultation’ (Franklin 1992, xxvi).

Having examined Bodin’s theory we can come to an assessment. In one sense Bodin’s significance lies in his attempt to explain the political associations of the emerging modern state in completely autonomous terms, and in morally neutral terms. The idea of the state political form was only developing in the middle of the sixteenth century. It is no accident that Bodin’s theory was developed in France, the first place to develop a centralised ‘state’ in this sense. This idea of the commonwealth as a ‘state’, charged with the maintenance of order, rather than with the promotion of goodness, was used by Bodin to great effect. Sovereignty, or the power to make and enforce laws, belongs he says to the state by definition. In the absence of this power it would quite simply cease to be what it is. Supreme authority and power constitute the essence of the state.

In the previous medieval period in Europe, a complex relationship was understood to exist between an individual and several different kinds of power and authority, deriving from local squires, feudal lords, town charters, work guilds, the prince, the king, the emperor, and the pope. These relationships, and their modes of expression, were differently organised in different places. The emperor was usually a very distant power, probably with no visible effect on ordinary people’s lives, except in times of war in the case of conscription to fight in an emperor’s wars. With his theorisation of sovereignty Bodin cut through these complex layers of power and authority over the lives of subjects. He defines a single, unitary and primary line of power and authority between the subject and the absolute sovereign. Sovereignty must be located in a determinate place and cannot be shared between different layers, he insists. Magistrates and ministers of the crown exercise powers delegated by the king, not in their own right.

But it is important to emphasise that at the heart of Bodin’s theory is the analytical distinction between the office of the king, the sovereign, and the personal rule of particular kings. He is defining the ‘state’ as a locus of power, rather than simply justifying the power of absolutist monarchs, and this is the greatest restriction on the power of an individual ruler. Furthermore, for Bodin, sovereignty means the absolute and perpetual legislative power, a notion influenced by Roman law. According to this definition, the laws of nature and of God, and customary laws of the land represent limitations, if only theoretical provisos, on the sovereign.

Franklin argues that Bodin’s account of sovereignty left an important legacy in two crucial respects. Firstly, Bodin’s theory did not itself fully enunciate but prepared the ground for the notion of royal absolutism. Indeed, when Bodin says that ‘[c]ontempt for one’s sovereign prince is contempt toward God, of whom he is the earthly image’ (Bodin 1992, 46), he takes steps toward (though does not reach) that point. The attention he gives to aristocracy and democracy as valid forms of sovereignty also belies that conclusion in full. He also clearly spells out in Chapter 5 of Book II that a sovereign is not only associated with divine right but can come about by several means—by ‘election, or right of succession, or lot, or a just war, or a special calling from God’ (Bodin 1992, 220). Bodin’s description was controversial, since it did not accord with current practice in relatively centralised states like France and England let alone in more medieval European forms.

Franklin’s assessment is that Bodin’s aim was not to promote the idea of royal absolutism as such but to give due weight to the complex forces at play and so to ‘reconcile the new idea of royal dominance with the French juridical tradition of which he was a great admirer and connoisseur’ (Franklin 1992, xiv). With his legal training and strong belief in the importance of law, Bodin drew a sharp distinction between the absolute sovereignty of the holder of the kingly office, and a personalised despotic kingship unmediated by office or law where the relationship between king and subjects is reduced to that between master and slaves. In addition, Bodin asserts an intimate link between the meanings of law and sovereignty. He asserts that ‘law is nothing but the command of a sovereign making use of his power’ (Bodin 1992, 38). Bodin also argues that ‘the prince is not subject to the law; and in fact the very word “law” in Latin implies the command of him who has the sovereignty’ (Bodin 1992, 11), and Franklin notes the derivation of the Latin word for law from the verb ‘to bind’ (Franklin 1992, 129 n23). Reinforcing this point, Bodin ends the key Chapter 8, ‘On Sovereignty’ in Book 1, on the note that ‘if justice is the end of law, law the work of the prince, and the prince the image of God; then by this reasoning, the law of the prince must be modelled on the law of God’ (Bodin 1992, 45).

Secondly, Franklin argues that Bodin introduced the erroneous but ‘seductive notion that sovereignty is indivisible’. Franklin defines indivisibility here with reference to Bodin’s theory of ‘ruler sovereignty’, as distinct from the idea that ‘every legal system, by its very definition’ is ‘an authoritative method of resolving conflicts’ that ‘must rest upon some ultimate legal norm or rule of recognition which is the guarantee of coherence’. Indivisible sovereignty for Bodin, says Franklin, referred not to the power of ‘the constituent authority of the general community’ (as in popular sovereignty), and not to ‘the ultimate coordinating rule that the community had come to recognise’ (as in a constitution), but to the power of ‘the ordinary agencies of government’. Franklin argues that Bodin ‘lacks a concept of constituent power and cannot imagine any power remaining in the people authoritatively to take cognizance of a violation of the law of nature’. For according to Bodin, ‘that act of cognizance would imply retention of ordinary governmental power, which, ex hypothesi, has been entirely vested in the prince’ (Franklin 1992, 129 n17). Whereas Skinner emphasised legislative capacity and analytical logic as the key innovations in Bodin’s theory, Franklin highlights Bodin’s definition of the indivisibility of sovereignty. For Bodin, according to Franklin, the unity of sovereignty lay in the idea that ‘the high powers of government could not be shared by separate agents or distributed among them’, but must rather be centralised ‘in a single individual or group’ (Franklin 1992, xiii). The authority to exercise powers could be delegated by a king but could not be held by right by anyone or in any public office other than that of sovereign. Franklin concludes that ‘Bodin would have done better … to have defined the ruler’s sovereignty as absolute (except with respect to the law of nature and fundamental [constitutional] law more narrowly defined)’, and to have ‘conceded that its functions were divided among the king, the Parlements, and the Estates’ (Franklin 1992, xxii).

Brown et al make the same point as Franklin. They argue that Bodin ‘concludes, erroneously, that the sovereign authority in a state cannot be divided’. They say that it ‘is true that in any single legal system there must ultimately be one and only one way of settling legal disputes’, that there ‘must be a single ultimate criterion by which the question “what is the law?” is decided’. But, they contend, Bodin is confused, because ‘it does not follow that the authority to enact and apply laws cannot be shared among different branches of government’ (Brown et al 2002, 249).

However, while Bodin clearly regarded monarchy as the most appropriate and clearest form of sovereign government, he does acknowledge in many places (for instance 1992, 24) that sovereign power can be vested in an aristocracy and a democracy as well as in a monarchy. Thus, indivisibility refers in Bodin very specifically to the lack of a framework for sovereign power, provided in an ultimate but largely dormant power vested either in the people or in a constitution, rather than to the rejection of forms of sovereignty held by an assembly or other collective body, wherein ‘the person who presides has no power and has to obey the orders of the governing body’ (Bodin 1992, 19).

The value of Bodin’s theory of sovereignty lies in its articulation of the asymmetrical character of absolute sovereignty, meaning that the sovereign commands but cannot be commanded, its analytical approach to sovereignty, its legislative form, its pinpointing of sovereignty as perpetual power and its insistence that, at the same time, sovereignty is not unlimited. The way in which Bodin combines absolute, perpetual and limited dimensions of sovereignty, opens up the conceptualisation of sovereignty beyond its seemingly binding association with early-modern absolute monarchy. This point is very important is supporting the contention of this book that attention to conceptual change and historical specificity render with clarity the particularity of the multiple conceptions of sovereignty that have been formulated.

Bodin does not seek with his theory of absolute sovereignty to eliminate or foreclose political debate, and in this sense his theory is more open than Hobbes’s to a space for politics. The Parlement, the Estates, and magistrates may all engage in real debate. However, their role in political life is circumscribed by only being able to advise and counsel the sovereign, and by holding only delegated authority. For Bodin, so long as the line of authority and its one-way, non-reciprocal nature is well comprehended, then political life can flourish and the sovereign can exercise power, most importantly to legislate, in an effective fashion.

Bodin’s place in the canon as the inaugurator of the modern theory of sovereignty rests upon his conception of absolute sovereignty (or sometimes a misrepresentation of it) and upon his theorising of sovereignty in the context of an impersonal state, whereby the distinction between the person holding the office and the office itself is a crucial element of the theory. But more importantly, and underpinning these aspects of Bodin’s work is his formidable legalism—found in the importance he accords to law within a political community; his understanding of sovereignty as primarily a legal concept; the way his thinking is rooted in a jurisprudence discourse; the pre-eminence he gives to legislating as the key function of the sovereign and in the definition of sovereignty; in his preoccupation with legal distinctions; the political significance he invests in legal technicalities; and the centrality of the legal relationship between subject and sovereign. Whether by accident or design, Bodin’s role in the canon as initiating the modern conception of sovereignty imports a strong legal flavour to the concept.

Bodin’s legalism is of course closely linked to the absolute sovereignty and state sovereignty for which he is famous. It is precisely as a consequence of the legal character of sovereignty for Bodin that there exists that asymmetrical relationship whereby the sovereign prince alone can make law for his subjects, and whereby any infringements that his positive law might have against natural and divine law are not answerable to the people. This absolutism then denies the possibility of a right of resistance. Likewise it is as a direct implication of the status of the sovereign prince as lawmaker within the political community rather than as personal ruler that the necessary framework in which the sovereign operates is a modern state as we understand it. The other interesting dimension of Bodin’s conception that this chapter has noted is that sovereignty, according to Bodin, and notwithstanding his (even if mistaken) emphasis on its indivisibility and his own preference for monarchy, can perfectly legitimately be expressed in democratic and aristocratic as well as monarchical forms of commonwealth.

To conclude the evaluation of Bodin’s theory, we can register the disjunction noted by Teschke and Vincent between Bodin’s proposals and on-going practices ‘on the ground’. Bodin’s conception of sovereignty remains enormously important for its analytical interest and its significance for later writers, but the persistence of older patterns in political life in France distort and make more complex the impact of the theory. Teschke gives two examples to support his case for the disjunction between Bodin’s theory and French political practice. He argues persuasively that, however much Bodin may have analytically distinguished the sovereignty of the state from the personal powers of the monarch, in practice the ‘non-separation of public authority and private property’ that characterised European feudalism ‘persisted in most European states well into the eighteenth and nineteenth centuries’. France is the model for this pattern of ‘dynasticism and proprietary kingship’ (Teschke 2003, 171), and England is the anomaly. Teschke gives weight to the history of political patterns in France, and criticises Spruyt for conflating the experiences of early modern France and England ‘under one type of successful territorial state’. He makes a strong case for recognising the significance of the contrast between the way ‘seventeenth-century England turned into a parliamentary-constitutional state based on an expanding capitalist economy in which sovereignty came to lie with Parliament’, while ‘France started to perfect its patrimonial-dynastic absolutist state form based on a non-capitalist agrarian economy while sovereignty came to be personalized by the king’ (Teschke 2003, 38).

Using historical detail to great effect, Teschke is also cautious of accepting legislative sovereignty—the ‘conventional benchmark of absolutism’ associated with Bodin—as critical to continental and especially French practice in the early-modern period. He argues that although ‘real steps towards “legislative sovereignty” through the expansion and refinement of royal law’ did take place in this period, the ‘alleged transition of the king from personal dispenser of justice, based on feudo-theological conceptions of divine kingship, to sovereign lawmaker was arrested by strong countervailing forces’, in the form of ‘widespread venal officialdom and regionally autonomous political institutions’ (Teschke 2003, 179). For example, ‘autonomous seigneurial courts’ persisted, ‘even though they tended to become integrated into an appellate system’. Even more tellingly, ‘the higher courts did not draw their legitimacy from royal delegation but from a real devolution of authority’. Teschke argues convincingly that ‘[h]igher magistrates had authority not by virtue of their function, but by virtue of their status’. Furthermore, he notes that the ‘patrimonial character of legal office—proprietary, hereditary, and irrevocable—turned the legal system into an incongruous network of patronage’. Not only did clientalism run ‘beyond royal control, developing its own self-reproductive logic’, but also the ‘idea that legal uniformity imposed by the king implied the formal equality of “equal citizens before the law” ran time and again into traditional social hierarchy, based on the possession of land, title, and privilege’ (Teschke 2003, 179–80).

Evidence from Vincent provides another example to support this case. He observes that although ‘Bodin himself was not a proponent of divine right, his notion of sovereignty was quickly adorned with the robes of divinity by later thinkers’ (Vincent 1987, 67). Vincent notes that from ‘Henry IV’s reign (1589–1610) up to Louis XIV’s (1643–1715), legislative absolute sovereignty gradually mutated into divine right. The king was regarded increasingly as a mortal god’. He argues that ‘divine right theory reinforced the idea of property in the realm and legislative sovereignty and also gave an added credence and lustre to the idea that the monarch was the State’. Vincent observes that ‘it is not often realized that divine right is a modern doctrine, a bridging point between the medieval and modern conceptions of politics’, for ‘Papal and imperial authority had come to rest finally in the person of the king’ (Vincent 1987, 68).