Jean Bodin

Julian H. Franklin, JulianH. Franklin

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780754625452
• eBook ISBN: 9781351561785
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

In the course of a lifetime, Jean Bodin aimed at nothing less than to encompass all the disciplines of his age in a huge encyclopedia of knowledge. In many areas, his ideas have been not only original but seminal. He made major contributions to historiography, philosophy of history, economics, political science, comparative public law and policy, religion and national philosophy. This volume brings together a selection of major articles in English, representing almost all of his intellectual interests. It is an essential collection for libraries and scholars in both humanities and social sciences.

Part I
Sovereignty

[1]
JEAN BODIN’S ‘LOGIC OF SOVEREIGNTY’

J. U. LEWIS

University of Windsor, Ontario

I

IN our age people more often than not think of law as the ‘command of a definite will or group of wills endowed with legitimate authority’, and of the limits of law as being set by the volitions of men, expressed either formally in a constitution or by the ‘unchartered limitations of public consent’.¹ This view is reflected in the ‘authoritarian model of law’,² and can be traced to the Roman dictum that ‘the preference of the ruler is what has the force of law….’³ So widely is it accepted as an accurate and illuminating account of what law is that in some quarters, especially where analytical jurisprudence with its attendant disinterest in legal history holds sway,⁴ the notion that legal authority is to be anchored to the obligation to command what should be commanded—that authority is to be exercised sub lege, as Bracton put it⁵—is thought to be incomprehensible. In many minds the phrase sit pro voluntate ratio, which explains that the sovereign’s will must coincide with reason, is thought to have been wrongly quoted; that what one meant to say was sit pro ratione voluntas—the will of the sovereign takes the place of reason.⁶

The predominance of voluntaristic theories of law, however, is a relatively modem phenomenon. Indeed it was only with John Austin in the nineteenth century that the balance shifted decisively in favour of such theories.⁷ For throughout the Middle Ages and well on up into the modern period the argument over whether law is an act of will or rule of reason was evenly fought.⁸

Among the first thinkers in the modem era to grapple with the difficulties inherent in this issue was the French lawyer and statesman, Jean Bodin,¹ called ‘the most powerful of French and perhaps all political thinkers of the [sixteenth] century’.² There is some dispute as to how great his theoretical innovations actually were, but a balanced assessment seems to be that in his major work, The Six Books of the Commonweale, the thesis that the king is above man-made law was for the first time fully and—although there is dispute about this, too—systematically developed.³ Some ‘civilians’⁴ and even some theologians between the ninth and thirteenth centuries⁵ had, it is true, also said that law was the expression of a superior will; but in A. J. Carlyle’s words, ‘we think it may properly be said’ that Bodin’s treatment of the matter ‘represents a much deeper and more dogmatic enunciation of the conception’ of sovereignty than had before been given.⁶ The idea of sovereignty was not new; but what Bodin did to and with it was. His work was at once the ‘culmination of the claims of “imperialist” writers throughout the Middle Ages who had sought to vindicate the position of the secular ruler as independent of ecclesiastical authority’⁷ and also the place in which the idea of sovereignty was lifted out of the ‘limbo of theology in which the theory of divine right left it’⁸ and placed within the context of secular constitutional theory.⁹ Perhaps the closest any thinker came to Bodin in this respect was Marsiglio of Padua, referred to by Clement VI as the ‘worst heretic’ he had ever read.¹ In his work were to be found all the elements of a theory of sovereignty; but the theory itself was lacking. Bodin provided it.²

The fundamental importance of Bodin’s work to political and legal theory becomes apparent once it is understood that the chief difference between the modern and contemporary world of law on the one hand and the ancient and medieval systems on the other is the modern emphasis on legislation rather than custom as the chief source of law.³ For as long as law was thought of primarily in terms of custom the question of authority was not a pressing one; the nature and function of the maker of law hardly arose. Custom is simply a ‘rule or habit of action which is in fact used or observed … by some body or class of persons’,⁴ and it may in some cases stretch back beyond ‘legal memory’, beyond the time before which the memory of the law does not reach—which as far as Anglo-American law is concerned is 3 September 1189.⁵

When legislation becomes the core of a legal system, however, the situation changes radically. For legislation is ‘that source of law which consists in the declaration of legal rules by a competent authority’ ;⁶ and with its use there arise the questions as to what constitutes ‘authority’ and what if any limitations are to be put upon it. Such questions comprise what Bertrand de Jouvenel calls the problem of ‘the content and substance of decisions couched in the imperative’.⁷ It is the problem of the nature and scope of sovereignty.⁸

A consideration of the nature of sovereignty and its relation to law and legal obligation must for two reasons begin with the thought of Jean Bodin. First, and from an historical standpoint, he claimed, ‘probably with justice’, as McIlwain says,⁹ to have been the first man to understand it in terms of its legislative function.¹ Secondly, and with an eye to the theoretical problems inherent in the notion of sovereignty itself, Bodin attempts to overcome the dilemma that arises when the idea that lawmaking implies the existence of an authority that can establish law by its will clashes with the further idea that arbitrary sovereignty has no place in law.² The task undoubtedly caused him considerable strain, and Professor Allen was correct when he remarked that if ‘you read certain modem writers you might suppose that Bodin’s theory of sovereignty is a tolerably simple thing; you will not think so if you read Bodin’.³ But the very difficulty met in seeking to understand his thought holds, in an odd way, a certain promise. To paraphrase H. L. A. Hart’s ‘tribute’ to Austin, if he is wrong, the demonstration of where and why can prove to be a source of illumination.

In our own day political theorists have given various interpretations of Bodin’s work. To some he seems to assert a doctrine of popular sovereignty, to others he is portrayed as a champion of monarchic absolutism.⁴ But regardless of which way his work is read it is unanimously criticized as being internally inconsistent. His logic of sovereignty is said to be faulty, for he places limitations on the sovereign’s power. Legal historians, too, have read his work; and the majority of them regard him as the well-spring of the tradition in law that flows through Hobbes and Austin to contemporary legal positivism and analytical jurisprudence.⁵

A purpose of this paper will be to examine these assessments of Bodin’s thought. But before his logic of sovereignty can be tested its frame of reference must be understood.

II

The central theme in Bodin’s Six Books of the Commonweale, to which everything he says contributes, is summed up in the following text:

We see… in the end of all edicts and laws these words, Quia sic nobis placuit, Because it hath so pleased us: to give us to understand that the laws of a sovereign prince, although they be grounded upon good and lively reasons, depend nevertheless upon nothing but his mere and frank good will.¹

In such words historians of political theory see a breakdown of Bodin’s logic of sovereignty: he appears in an inherently contradictory way to be saying both that law originates in the sovereign’s will and also that it is dependent upon ‘good’ or right reason—almost as if he cannot decide in his own mind whether to side with Machiavelli or Sir Edward Coke.² Legal historians, on the other hand, have focused on the voluntaristic side of Bodin’s doctrine of sovereignty, holding that all else he says is to be understood in its light.

When one reads Bodin’s statement that anarchy is ‘worse than the harshest tyranny in the world’,³ however, doubts about such interpretations of his thought are planted. For when it is recalled that Bodin’s purpose in writing the Six Books was the essentially practical one of saving the French ‘ship of state’ from sinking,⁴ it appears too facile to interpret his work in terms of concepts made second-nature to us by the overwhelming influences of legal positivism and power politics. And the doubts once planted begin to grow when it is discovered that Bodin’s definitions of concepts such as ‘sovereignty’, ‘commonweale’, and ‘law’ are, technically, definitions constructed in terms of final causality. A definition, he says, ‘is nothing else than the very end and scope of the matter propounded…; he that knows not the end of the matter… is as far from hope of attaining thereunto as he is from hitting the mark who shoots at random’.⁵ In other words, an understanding of what Bodin meant by ‘sovereignty’ and ‘law’ demands an understanding of what he thought the purpose of a sovereign ruler to be in the making of laws.

It is apparent from what we have so far seen Bodin say that he is inviting us to examine his basic view of reality. And unless we are prepared to accept the invitation we shall neither find the context that he himself has provided for his logic of sovereignty nor will we escape the fault of anachronistically interpreting that logic in nineteenth- and twentieth-century terms. Many today think of the universe as a whole as being comprised of closed, essentially disordered, individual entities that are ordered and brought into interaction with one another only by means of external forces.⁶ This view constitutes the primal assumption operative in contemporary political and legal theory.¹ But Bodin’s world was not in any way like this, as his very terminology shows. ‘The Great God of nature’, he writes, ‘harmonically composed this world [out] of matter and form, of which the one is maintained by the help of the other, and that by the proportion of equality and similitude combined and bound together’.² God is the ‘most wise workman’;³ and he has so ordered the parts of the universe that every part is intrinsically ordered to every other, beginning from the ‘celestial Spheres around which the planets move down to the earth, upon which the soil is joined to stones (by clay), stones to plants (by coral, which is a “stony plant”), plants to brute animals (by “Plantbeasts, which have feeling and emotion but yet take life by the roots”) and brutes to men (by monkeys—“except we shall agree with Plato, who placed a woman in the middle between a man and a beast”).⁴ Men, be it noted, are slightly lower than the angels, being ‘in part mortal and in part immortal’.⁵

Bodin places this view of reality at the very end of the Six Books of the Commonweale. It is also found in the Preface to the first French edition,⁶ where in addition, the relation between his world-view and the nature of sovereignty and the purpose of law are treated in the outline that the remainder of the Six Books fills in:

… just as the bond of nature … rules over the angels, so the angels rule over men, men over beasts, the soul over the body, Heaven over the earth, and reason over the appetites; so that whatever is less fitted to rule may be directed and guided by that which can protect and preserve it, in return for its obedience… .⁷

As might be expected, now, Bodin holds that society is natural to men, a position it might be noted, that serves to distinguish him sharply from Hobbes.⁸ When God ‘ingrafted reason in us [he] made men desirous of the company and society of man… .’⁹ And, startlingly perhaps, what holds men together in society is love. It is ‘the only foundation of all human and civil society, and much more requisite for the keeping and maintaining thereof ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Sovereignty
• Part II Public Law
• Part III Political Economy
• Part IV Religion
• Part V Natural Philosophy and Method
• Part VI Theories of History
• Name Index