Sovereignty

The Origin and Future of a Political and Legal Concept

Dieter Grimm, Belinda Cooper

• Publisher: Columbia University Press
• Year: 2015
• eBook ISBN: 9780231539302
• Topic: Philosophie
• Subtopic: Histoire juridique

Dieter Grimm's accessible introduction to the concept of sovereignty ties the evolution of the idea to historical events, from the religious conflicts of sixteenth-century Europe to today's trends in globalization and transnational institutions. Grimm wonders whether recent political changes have undermined notions of national sovereignty, comparing manifestations of the concept in different parts of the world. Geared for classroom use, the study maps various notions of sovereignty in relation to the people, the nation, the state, and the federation, distinguishing between internal and external types of sovereignty. Grimm's book will appeal to political theorists and cultural-studies scholars and to readers interested in the role of charisma, power, originality, and individuality in political rule.

B

Development and Function of the Concept of Sovereignty

I

Bodin’s Significance for the Concept of Sovereignty

1. SOVEREIGNTY BEFORE BODIN

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

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

Because, in the Middle Ages, such positions of power were not held by a single person, but were distributed territorially and functionally among many mutually independent holders, sovereignty could be linked only with individual powers. As a result, “sovereignty” described not an abstract but a concrete position of power, and many “sovereigns” coexisted on one and the same territory. “Sovereignty” was not a unified concept, but a plural one. Because it built upon individual powers, the characteristic of being sovereign did not suffer from the fact that its possessor was subordinate to a higher holder in regard to other powers. One could only be relatively, not absolutely, sovereign.

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

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

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

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

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

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

The leges that regulated the power to rule were prescribed. Functionally, sovereignty did not include the right to autonomous lawmaking. The social order was established by God-given or natural law, but, in any case, not by man-made law. Political rule existed primarily to implement law or reestablish it when it was violated. Lawmaking was limited to making existing law more concrete, or at least it had to claim to be doing this. Ascertaining the law was most important. The function of finding the law antedated the function of making law. Thus the expression sovereign referred with particular frequency to the power of dispensing justice.

2. SOVEREIGNTY IN BODIN

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

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

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

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

A new word soon appeared for this novel form of political rule, in which politics developed into an independent function related to a territory, with a concentration of power and a governing apparatus oriented toward its use: namely state. It was no longer used only in compound form—a state of something—but on its own. The chancellor of the absolutist regime, Michel de L’Hôpital, used it in the abstract form as early as 1562 in a speech before the Estates General. Bernard de Girard, no supporter of the royalists, called France a state in 1570. Bodin was also familiar with the expression; it frequently appears in his writings as a synonym for republic.¹¹

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

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

Bodin was one of them. In his view, a superior power was necessary to achieve the goal of restoring internal peace, one that could rise above the warring factions and force them into a secular order that would allow the opposing faiths to exist side by side, by turning faith into a private matter. From a historical perspective, this could only be done by the king, who, at the tip of the medieval feudal pyramid, had no lord above him and already possessed a large number of sovereign rights. The first condition was that he could consolidate the scattered sovereign rights in his hands and become independent of others in exercising them.

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

This law was not and could not be restricted to the temporal, if it were to fulfill its purpose. It applied to all matters important for establishing and maintaining domestic peace. No area of law could be reserved to the Church. Ecclesiastical sanctions could not be allowed to affect the worldly status of the individual.¹⁵ It included the power to overturn existing law and abrogate customary law. The extension of public power to lawmaking also marked the birth of positive law. Law’s validity was no longer based in divine will, but in the will of the sovereign. “The laws … proceed simply from his own free will.”¹⁶

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

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

In this way, possession and exercise remained in one place. The fact that others also had authority in addition to the ruler did not affect his sovereignty, as long as their authority was derived from the ruler and exercised at his behest. To Bodin, sovereignty was not identical with puissance publique. Rather, there were two types of puissance publique: “One is the sovereign right which is absolute, unlimited, and above the law, the magistrates and all citizens. The other is legal right, subject to the laws and the sovereign. This is proper to the magistrate, and those who have extraordinary powers conferred on them by commission. These persons can exercise the right only until their office is revoked or their commission expired.”¹⁸ Earlier powers could thus continue to be exercised under the new conditions, but not on one’s own authority and under one’s own conditions.

Bodin did not, however, go so far as to define sovereignty as unlimited power. This was particularly clear where lawmaking was concerned. The right to legislate was the most important and sole right of the sovereign. However, the ...

Table of contents

• Cover 
• Series Page
• Title Page
• Copyright
• Contents 
• Series Editor’s Foreword
• Preface and Acknowledgments
• A: Sovereignty in a Time of Changing Statehood
• B: Development and Function of the Concept of Sovereignty
• C: Sovereignty Today
• Notes
• Index
• Series List