Jean Bodin, Popular Sovereignty, and Constitutional Government
Jean Bodin, Popular Sovereignty, and Constitutional Government
Abstract and Keywords
Bodin’s Six Livres de la République is conventionally seen as a defense of political absolutism and an unrelenting criticism of popular sovereignty. I challenge this view. I show how Bodin’s treatment of sovereignty as an extralegal power of states followed the traditional civilian analysis which required sovereigns, whether princes or peoples, to govern just as if they were subject to law. Bodin’s strict adherence to this principle reveals a deep-seated anxiety concerning the dangers associated with the direct, legally unfettered exercise of sovereignty. This anxiety prompted Bodin to investigate the constitutional possibility of delegating the legal exercise of sovereignty to government agents, without simultaneously compromising the right of sovereignty. The chapter traces Bodin’s strategic use of the Roman law of obligations in framing this argument for magisterial government, and his application of this analysis to the government of the Roman Republic, what Bodin regarded as the archetypal ‘popular state.’
Ten years separate the publication of the Methodus and the publication of the first French edition of the Six Livres de la République. It has often been suggested that, in the intervening decade, Bodin, who left behind his legal career in the Parlement to enter the service of the monarchy, underwent a radical transformation in his political thought, moving from a more moderate, even “constitutionalist,” position on the question of the scope of state authority, informed by Roman constitutionalism, to a radical “absolutist” position advocating, in the face of civil war, a legally unrestricted notion of absolute sovereignty.1 Consequently, it has become (certainly among legal and political theorists) commonplace to view Bodin’s République, his most important text of legal and political theory, as little more than a precursor to Hobbes’ Leviathan as a defense of an unbridled monarchical absolutism and rejoinder to Monarchomach theories of public resistance.2
Of the many points of conventional wisdom concerning Bodin’s thought generated by this analysis, one has had a particularly lasting influence, and I would say, a devastating effect on the modern understanding of Bodin’s legal and political theory. This is the notion that Bodin was not only an enemy of popular sovereignty and democracy, but—even more—that he denied even the very possibility of popular sovereignty as a coherent concept of rule.
My goal in this chapter is to challenge this view. As I hope to show, Bodin not only recognized the possibility of popular sovereignty in the République, especially in his analysis of sovereignty in classical republics where supreme constitutional authority was located in the demos, as in Athens, or the populus, as in the Roman Republic, but he was, in a fundamental way, perhaps the most (p.188) important and technically sophisticated early modern theorist of popular sovereignty as a general theory undergirding the constitutional foundations of modern states. This, of course, is certainly not to say that Bodin was a democratic theorist or, in any obvious sense, a champion of popular rule. On the contrary, Bodin, like Hobbes, saw the comparative advantages of monarchical over republican rule and remained deeply skeptical of the capacity of a sovereign people to exercise self-government in a stable and lawful manner. Indeed, a common theme in Bodin’s theory is just how easily democracies are prone to degenerate into lawlessness.
Unlike early modern critics who saw democracy as one step away from full-blown anarchy, Bodin was exceptional in acknowledging the complexities and the particular challenges of constitutional politics organized in the “popular form of state”—or status reipublicae popularis—a fully legitimate, if perhaps misguided and suboptimal, constitutional form. Indeed, he recognized that some of the most important states of classical Antiquity, such as Athens, Sparta, Carthage, and, above all, Rome, were organized, at certain points in their constitutional histories, along the principle of popular sovereignty. And he further understood that popular sovereignty was not merely an artifact of ancient civilizations, but an unavoidable fact of modern politics, as he observed in the democratic politics of such early modern examples of popular sovereignty as the Florentine Republic and self-governing Swiss cantons such as Geneva, Grisons, and Uri. From the perspective of his political science in the République, then, the constitutional form of the popular state was an unavoidable fact, however much its enemies wished to deny its legitimacy and existence.
By accepting the existence of the popular state, Bodin takes up what he sees as one of the central tasks of his constitutional theory, which is to explain how a state, in which sovereignty is located in the populus, might best preserve its popular sovereignty and what sort of government might be most appropriate for such a state. As we shall see, Bodin’s constitutional theory explores, in great depth, matters of central importance to the coherence of popular sovereignty as a viable constitutional doctrine, such as the proper understanding of the concept of “peoplehood,” the varieties of constitutional design appropriate to such a sovereign populus, and whether the legal idea of popular sovereignty necessarily must entail some form of direct democracy. What emerges is not so much a blanket condemnation of popular rule, but a more nuanced theory of the institutional conditions under which popular sovereignty can be best preserved.
This chapter begins by exploring Bodin’s analysis of sovereignty as “absolute power.” As I show, with specific reference to his use of Roman law, Bodin understood sovereignty as necessary for the independence of a state, but this did not mean, however, that sovereignty was to be exercised in this way at all times. Instead, Bodin saw sovereignty as a legal right that could be expressed or exercised by delegation through agents or mandataries of government.
Bodin famously defines sovereignty in the First Book of his most important work of political and legal theory, the Six Livres de la République. There, in what is perhaps the most well-known sentence of the entire work, he defines sovereignty [Fr. souveraineté, L. maiestas] as “the most high, absolute, and perpetuall power over the citisens and subiects in a Commonweale.”3
One way to understand the place of sovereignty in Bodin’s mature system of thought is to consider its higher-order function in conceptualizing the “state” [Fr. république, L. respublica]. It is, as he argues in the earlier Methodus, the sort of power that must be assumed, in theory, to be necessary in order for a state to exist as a unitary and independent entity. In this way, sovereignty “carves” out the boundaries of an autonomous space in which political life can flourish. Sovereignty represents, in this way, “the autonomy of the political and is the foundational concept of modern public law.”4 This necessary connection between sovereignty and the state is indeed built into his very definition of the state, which he articulates in the very first sentence of the République: “A Commonweale [state, république, respublica] is a lawfull gouernment of many families, and of that which vnto them in common belongeth, with a puissant soueraigntie.”5
To be sure, Bodin’s doctrine concerning the necessity of a superior power to hold together, in common subjection, a collective association was not unique to the state. As he argues in the second chapter of Book I of the République, all associations—not just the state—were understood to be tied together by some common power. Families, for example, which Bodin treated as the basic unit of the state, was understood to be tied together by shared subjection to the paterfamilial power of the father.6 So, too, were voluntary associative bodies such as corporations understood to be tied together by the power of its “attourney or agent” [procuratorem, aut actorem] who had the “right of punishing individual members” [coercendi singulos ius habet] of the corporate body.7 In this respect, the state, as a body politic, was no exception to the rule. Collective bodies of (p.190) all sorts, whether public or private, could not be acephalous; they all required a ruling “head” of some kind to assert order over, and among, their members.
But for Bodin, what made the state unique was that it was, unlike all of these other bodies, fully independent. The state recognized no legal superior in temporalibus and was not bound by any legal obligation. Such political and juridical independence could only correspond to a power that was, as Bodin put it, “not limited either in power, charge or time certaine.”8 It was “absolute” in the technical sense that it was “absolved” of any such legal or temporal limitation or constraint. Bodin, thus, has no hesitation in formulating this doctrine in the traditional civilian manner: sovereignty is a power that is, as he puts it, legibus soluta.9
One consequence of this analysis is the modern interpretive suggestion that Bodin ought to be treated as the preeminent representative—indeed, even the “apex”—of “absolutist” thought, perhaps a precursor to later theorists of political absolutism, such as Filmer or Hobbes, or of legal positivism, such as Austin.10 But there are several important reasons why we ought to contest the validity of such an interpretation.11 The first is that Bodin’s concept of “absolute power” (and by implication, sovereignty) plays a technically specific function in his legal theory. Indeed, for Bodin, “absolute power” had a specific meaning, deriving from its use in Roman law describing any extralegal authority, such as the authority of Pompey who was, by the lex Gabinia, “dispensed withall, and absolved from all the laws, [omnibus legibus solutus] ordinances, and customes of his Commonweale” for five years and, more important, the authority of the princeps, absolved or unbound by any legal constraint in perpetuity by the people’s lex regia.12 In civil law, such unrestricted power is illustrated in terms of strict adherence to procedures in executing certain legal actions or transactions, such as in the making of a will.13 Whereas private persons were not ordinarily “absolved” of the obligation to enact a will according to the prescribed legal rules for doing so, only the princeps was “absolved” and understood to (p.191) be “released” from that obligation. His “absolute power”—or perhaps equivalently, his “absolved power” [potestas soluta]—meant that he could make a will without having to adhere strictly to the letter of the law, so as to meet the legal requirements of will-making that others had to follow.
The point could be universalized and restated as a general lesson concerning all areas of law, not just about the law governing the making of wills. A sovereign with absolute power was, by definition, under no enforceable legal obligation to comply with the requirements of law.14 But this did not therefore mean that all sovereigns were to be given license to govern as arbitrarily or lawlessly as they wished. Indeed, this civilian analysis of absolute power was always read in conjunction with the normative principle that, even though a princeps was technically “absolved” of legal limitations [legibus solutus], he should nevertheless always treat himself as “obliged” or “bound” by the laws [legibus alligatus].15
It is seldom remembered in the modern scholarship that Bodin was in fact a proponent of this nuanced understanding of “absolute power.” We know this, first of all, because he explicitly distinguishes, as separate categories, between these two forms of potestas publica in the First Book of the République, separating sovereign power that is legibus soluta from the subordinate power that is legibus imminuta.16
It must be stressed, of course, that Bodin was certainly not the first to adopt this juridical analysis of absolute power. Indeed, as legal historians such as Brian Tierney and Kenneth Pennington have shown in various studies of the Glossators and Canonists, Bodin’s view reflected what had become almost a commonplace in medieval legal thought concerning the relationship between kingship and the law. Even though a princeps may in theory have absolute power as an extralegal potentia or capacity in reserve, he should nevertheless govern within the law as if he did not.17 Strictly speaking, a prince was not legally obliged or required to do so, but good counsel and policy made it practically a necessity.18
That Bodin was directly influenced by these medieval antecedents to the analysis of “absolute power” is clearly evident from examining the medieval (p.192) authorities he cited as lending support for his own view.19 Far from breaking radically from the medieval past and engineering an unprecedented and distinctively modern concept of absolute power, as some commentators have suggested, Bodin was actually quite careful to ensure that his doctrine of sovereignty was framed so as to be largely continuous and compatible with established medieval traditions of constitutional thought in the ius commune.20
This is not to say, of course, that Bodin’s treatment of sovereignty in the République was entirely unoriginal or without innovation. What was original about Bodin’s treatment was not so much in his definition and analysis of sovereignty as absolute power, as such, but rather, in his insistence that analytical and normative inquiries concerning absolute power must be treated separately, unlike medieval jurisprudence which often tended to conjoin them. This was a direct result of his systematic attempt to treat the concept according to the standards of proper science, which required, as a general methodological axiom, analytical domains of thought to be segregated strictly from the normative. Such a methodologically rigorous attitude was, Bodin recognized, essential for proper method in all sciences, but it was especially critical in legal science, where it was necessary, as Bodin put it, to demarcate the “essentiall and formall differences” in things.21
To this axiom, the analysis of absolute power was no exception. Bodin could, at once, investigate the concept of absolute power not only as a value-neutral concept of analytical political theory, but also as a proper object of normative inquiry. Though subtly understated, this dual approach is possibly one of the most important aspects of Bodin’s theory of sovereignty. It is often overlooked in critical studies of Bodin, which indiscriminately commingle his analytical and normative treatments of absolute power as if they were one and the same.
But, by failing to distinguish between the analytical and the normative modes of Bodin’s thought, many modern commentators have not only committed the “is/ought” fallacy of (mis)taking conceptual analysis for the normative, but they have also confounded the very distinction that Bodin insisted upon. Such a leap in logic has not only had the result of presenting Bodin’s thought anachronistically in terms of a crude political “absolutism,” totally alien to his system of thought, but it has also obscured one of Bodin’s most important teachings concerning the sovereign powers of states. Just because sovereignty is formally “absolute” or limitless in the sense of being “absolved” or “free” of all legal and institutional constraints and obligations, it does not at (p.193) all follow that sovereignty should always be exercised or implemented in this way. On the contrary, as a normative matter, Bodin argues in fact for just the opposite.
Sovereignty and Government: Bodin’s Principal-Agent Analysis of Sovereignty
Despite defining sovereignty as an “absolute power,” Bodin nevertheless expressed great unease with the concept. On the one hand, he acknowledged the necessity of sovereignty for the very existence of the state. It is simply not possible to conceive of a state as an independent body without some unifying power that is, correspondingly, independent and free of any limitation or constraint. So he admits, as an axiom to his entire theory of the state, that every independent state in history—not only the great classical states such as Athens, Sparta, Rome, but also modern kingdoms, principalities, and republics such as France, Venice, and the Holy Roman Empire—must have some sovereign authority within their respective constitutions, tying its various parts together as one unit and allowing an autonomous space to be carved out for political life.
That having been said, Bodin was fundamentally concerned about how sovereignty was, in practice, to be exercised and implemented. The reason for his overwhelming concern reflected his keen awareness of the potential dangers of sovereignty, a concern he voices most clearly in connection with the sovereign power of legislation, the first “mark” of sovereignty. It is well known, for example, that, for Bodin, the free and unrestricted capacity to make and unmake law (in the sense of lex) is, no doubt, a formal legal right of sovereignty.22 Yet, in Book IV of the République, Bodin also acknowledges what he sees as the dangers that are associated with the frequent exercise of such sovereign power and, thus, warns sovereign legislators of the many potential risks involved in exercising their sovereignty by introducing new laws. As he puts it, “there is nothing more difficult to handle, nor more doubtful in euent, nor more dangerous to mannage, than to bring in new decrees or lawes.”23 This is especially crucial with respect to constitutional or public law:
To chaunge the laws which concerne the estate [leges quae ad statum Reipublicae pertinent mutare], is as daungerous, as to remoue the foundation or corner stones which vphold the whole weight or burthen of the buildings; in which doing, the whole fabrike is to be sore shaken, and beside the daunger of falling, receiueth more hurt by the shaking thereof, than it doth good by the new repairation, especially if it bee now become old and ruinous.24
(p.194) So, even though it is certainly a sovereign right to make whatever new legislation a sovereign wishes to make, there are nevertheless real dangers and risks associated with such choices, which should enter into the sovereign’s decision-making calculus. With respect to legislation, then, Bodin’s position is remarkably Burkean: sovereigns should only exercise their sovereignty through introducing any legal change in the least disruptive manner, “by little and little … and not violently all at once.”25 Indeed, as a rule, sovereigns ought to avoid as much as possible having to exercise their legislative authority directly.
But there is a general lesson that can also be taken from this. The more frequently, wantonly, or recklessly sovereignty is exercised, without proper deliberation or institutional restraint, the more the state risks exposing itself to potentially destructive forces. Indeed, the careless exercise of the state’s absolute power can threaten the very existence of the state itself. It is indeed for this reason that Bodin strikingly advises sovereigns to avoid having to exercise their sovereignty. The central normative doctrine emerging from Bodin’s theory of sovereignty was, thus, a principle of self-restraint. Being formally free and entitled to exercise sovereignty without restraint does not at all mean that one should exercise sovereignty in such a way and at all times.26
So the question is this: How should such sovereignty actually be exercised in the practical day-to-day task of governing and managing affairs of state? To address this question, Bodin introduced a distinction that would become critical not only for his theory of the sovereign state, but would also become one of his major contributions to modern constitutional thought and subsequently shape the thought of modern political theorists such as Hobbes, Pufendorf, and Rousseau—that is, the distinction between “the state of a commonwealth [l’estat d’une République du gouvernement; status reipublicae] … [and] the administration and government of the same” [administration; gubernatio].27 By drawing (p.195) this distinction, Bodin carved out a normative domain of analysis concerning how sovereignty ought to be exercised, separate from the conceptual task of explaining what sovereignty is.
One important theme that immediately emerges in Bodin’s normative treatment of sovereignty in this way is that sovereignty is properly to be exercised, not directly, but indirectly, through delegation of powers to others—as “agents” of sovereignty. While it is certainly true that sovereignty could, by right, be exercised directly and immediately by the sovereign authority, it could just as well be exercised indirectly through an intermediary agent or mandatary, legally constituted with a share of public authority, as he explains in the case of monarchies:
There is a great difference betwixt the State, and the government of the State: a rule in policy (to my knowledge) not before touched by any man: for the state may be in a monarchie [Monarchie; reipublicae status regalis], and yet the government nevertheless popular [gouverné populairement; gubernatio popularis]; if the king do distribute all places of command, magistracy, offices, and preferments indifferently unto all men, without regard of their nobility, wealth, or virtue. But if the prince shall give all command, honors, and offices unto the nobility only, or to the rich, or the valiant, or to the virtuous only, it shall be a royal monarchy, and that simple and pure, but yet tempered in manner of an aristocracy.28
The modes of government by which sovereignty is exercised are, as Bodin admits, potentially unlimited.29 The difference in these modes depends entirely on how the sovereign authority assumes “an institutional form,” so as to be exercised and expressed through the agency of others.30
Bodin’s principal-agent approach was important for several reasons. It indicated, first of all, that a sovereign authority, whoever or whatever it was, was fully entitled, if it so chose, to exercise supreme power by delegating it in any way it pleased, so that it may be legally exercised through an agent or mandatary without, in any way, compromising the principal’s right to sovereignty. Delegated sovereignty, in short, was fully compatible with absolute and indivisible sovereignty, just as granting the use, care, or management of one’s (p.196) proprietary estate to another was still fully compatible with the owner retaining the right of property.31
That Bodin envisaged such a principal-agent analysis to model the corresponding relationship between the sovereign state and its government is indicated right at the beginning of his famous chapter on sovereignty in Book I of the République, where he tries to specify what is (and what is not) the essence of sovereign authority by introducing certain extreme threshold cases illustrating how even the state’s “absolute power over citizens could certainly be given to one or many” without also compromising the principal’s status as sovereign.32
By far, the best known example in Bodin’s thought where the state’s “absolute power … [is] granted … to one or many to manage their estate and entire gouernment” [donne puissance absolute de manier l’estat & gouverner entierement; summam ac legibus solutam potestatem … dari] was that of the Roman dictator, an example we have already seen briefly in the Methodus.33 As he famously—and controversially—states, the Roman dictator could never properly be regarded as the bearer of sovereignty in Rome, despite his exercise of such extraordinary power, because his hold on that power always came with an expiry attached to the dictatorship.34 For Bodin, there was no doubt or disagreement that dictators held a legally unlimited “absolute” power, but it was a power which was valid only “for a short period of time [breve tempus], and not in perpetuity.”35 So even though Roman dictators such as Cincinnatus (for fifteen days), Servilius (for eight days), and Mamercus (for one day), certainly may have held supreme or absolute power over Rome, it could hardly be a genuine sovereign power, precisely because it was temporally limited.36 Nor was the dictator even a kind of “supreme magistrate” [Magistrat souverain; summu(m) . . . magistratu(m)], such as the Roman Praetorian Prefect or the Merovingian French Mayors of the Palace, since dictatorial appointments were, in Bodin’s view, extraordinary and precarious grants of power held during the sovereign’s pleasure.37 At most, (p.197) the dictator could only be said to have absolute power delegated as a “simple commission,” charged exclusively with the expeditious completion of certain defined tasks.38
While the dictatorship was perhaps the best known example to illustrate this point, it was by no means the only one. Using a variety of classical examples, such as the Roman Decemvirate, the Spartan Harmost, the Thessalonian Aesymnetes, the Maltese Archus, and the Athenian Archon, Bodin underscores his general point that the mere holding or exercising of absolute power does not, by itself, make one a sovereign, precisely because such power may be held as a temporary grant. Such persons of high authority, Bodin argues, never have sovereignty. They are, rather, merely agents appointed as temporary “depositaries of power” [depositaires de la puissance; potestatem precariam].39
Nor was the practice of delegating absolute power to agents merely an institutional practice restricted only to the tumultuous politics of classical states. Even modern states, as Bodin observed, granted absolute power to agents, especially in moments of constitutional emergency, such as in Florence in the time of Machiavelli [populari potestate], where such power was extraordinarily committed by the populace to the Balia, an emergency council of citizens convoked by a parlamento for major fiscal or institutional reforms.40 National monarchies likewise governed by the grant of commissions of absolute power to subordinate bodies or agents, such as the Habsburg King of Spain who granted, on his sufferance, a plenary, though fully “revocable,” absolute authority to senatorial bodies governing in his name over the conquered Duchy of Milan and the Kingdom of Naples.41 Even in his native France, Bodin acknowledged that the king could exercise absolute power over the kingdom “by precarious commission” [commission precaire; precario] of such power to agents, such as (p.198) “the Regents or Viceroyes of kingdoms” [Regents des Royaumes; Regentes regni] as was the Queen Regent Catherine de Medici during the minority of her son, Charles IX, and especially through the institutional device of Lieutenants-General of France, to which Bodin alluded, with some alarm, as an increasingly common and destabilizing practice in French constitutional politics of the sixteenth century:
There was neuer greater power giuen to magistrat next vnto his prince, than that which was of late yeares graunted to Henrie of Fraunce, duke of Aniou, by king Charles the ninth his brother, for it was most great and perpetuall, without any exception of the regall power [de regale; regalis potestate]: yet for all that one cannot say that it was soueraigne [souverain; summa], inasmuch as he was called Leiutenant General for the king [Lieutenant general pour le Roy; legatus sui principis], So long as it shall stand with our good pleasure, ioyned vnto it in his letters patents: which wel declareth a power but during pleasure [souffrances; precariu(m) imperium … significat]. Which power of lieutenancie (as of all magistracies) ceaseth in the presence of the prince.42
The King of France, in Bodin’s analysis, remains fully sovereign, even while power is exercised by other agents within the realm, whether they happen to be the legally constituted magistrates of Parlement or extraordinarily commissioned lieutenants serving at the king’s pleasure.
All of these examples, whether of classical or modern origin, are however prefatory to the most important example, which Bodin very deliberately seems to have held back in order to complete his analysis of delegated sovereignty. This was the example of the lex regia of Roman law which, as he put it, epitomizes all the cases where a sovereign “people have given absolute power [to a man] so long as he liveth.”43 Without taking an interpretive position on the old medieval dispute as to whether or not the lex regia represented a full alienation of popular sovereignty to the princeps, Bodin charitably acknowledges that, even under the lex regia, the princeps—who, as Ulpian declares, is (p.199) legibus solutus—might nevertheless be said to be limited, precisely because he is an agent of the Roman people and, thus, limited by the residual relationship of agency between the Roman people (as principal) and the Roman princeps (as agent). This is, as he observes, only plausible if the original popular grant of authority by the lex regia is interpreted as a kind of concessive delegation, as in the concession theory of Azo and Accursius, so that a princeps, despite his absolute powers, can be regarded as nothing more than “a plaine [simple] officer, or leiutenant, regent, gouernour, or guerdon and keeper of another mans power” [gardien, & bail de la puissance d’autruy].44
In all of these examples, the main point that Bodin wanted to stress was the incompatibility of sovereignty and agency: all agents, however great their power was in magnitude, were always understood to be limited by their status as agents. For this reason alone, agents can never be sovereign.45 This point is, of course, not difficult to see in cases where the agent holds a limited power, such as an inferior magistrate whose power is defined and bound [imminuta] by law.46 Because such agents were limited in these ways, they could never be considered sovereign, which, by definition, was legibus solutus, legally unlimited.
But Bodin wants to make an even bolder and more controversial statement. Even those agents to whom a legally unlimited absolute power is granted—like the dictator, the Balia, the lieutenant general, and even the princeps—are also excluded from the right of sovereignty because their grasp on such extraordinary power is always temporary and tenuous. Even if such authority figures might technically be legally unlimited and absolute in their powers, “exempted from all laws” [omnibus (legibus) solutus est] during their tenure, they are nevertheless tied by an overriding bond of obligation that all agents, even the most powerful, always owe to their principals.47 Their power comes with strings attached, tethering them to their respective sovereigns, whether they happen to be princes or peoples.
(p.200) The lesson here, then, was a simple, but centrally important, one for Bodin. No government agent, however powerful, could ever be said to be a sovereign because the very concept of delegated agency by some derivative or concessive act of mandate always implied some limit—otherwise, it wouldn’t be delegation. As Bodin puts it, a sovereign “never giveth so much power vnto another, but that hee alwayes keepeth [retienne; reservavit] more vnto himselfe.”48 Since such delegated power is limited by the very terms or conditions under which power—even absolute power—is delegated, it cannot, by definition, be a sovereign power, but something inferior and subordinate.
The Juridical Sources of Bodin’s Principal-Agent Analysis of Sovereignty: The Roman Law of Delegated Jurisdiction
By summarily disqualifying all agents, however powerful, from sovereignty, Bodin considerably and controversially narrowed the field of candidates eligible to assert a right of sovereignty. He excluded, for example, the Holy Roman Emperor, the Doge of Venice, and the King of Poland from the category of sovereignty because they all held their regnal titles and authorities only by way of election, as “agents” of their electors who, in his view, should properly be regarded as the bearers of sovereignty. He likewise excluded any holder of a legally constituted permanent public office—even the most powerful magisterial office, such as the Roman consul or praetor—from sovereignty since such officers were always understood to exercise the public power attached to their office under fixed legal terms.
But despite specifying more precisely the criterion of sovereignty in terms of actionable rights, Bodin also made his task considerably more difficult in a way, and that was because the search for sovereignty, in Bodin’s theory, could no longer rely simply on the actual exercise or simple possession of absolute power as the sole criterion for sovereignty, since even the holder of such a great power might nevertheless hold it as an agent. How could it be possible, then, to identify such a sovereign authority, which has, divested itself of sovereignty through delegation and “de-activated” itself into a state of constitutional hibernation or dormancy to become, as Richard Tuck has suggested, a “sleeping sovereign?” Conventional language cannot help in this task because what may appear to be a name or sign indicating sovereignty—such as a title of royal dignity, as in the case of the Holy Roman Emperor or the Doge of Venice—may, in fact, be nothing more than an empty [inane] title or “cipher.”49
What was needed, instead, was a new science of sovereignty that circumvented both conventional language (especially those of classical historians) and traditional considerations of magnitude or exercise of power. For Bodin, (p.201) the focus had to be fixed entirely upon the “essentiall and formall” qualities of states, rather than upon mere “externall accidents,” especially normative value-laden considerations, which are potentially “innumerable.”50 One of Bodin’s most urgent tasks for his civil science of the state was to provide some guidance on how a principal-agent analysis might be conducted, so that it would be possible to “trace” and “uncover” the form of the true sovereign authority in any state, as the principal sovereign entity, which, by implication, was understood to be hidden behind all institutional forms legally constituted to govern the state, and to exercise public power in its place, while sovereignty is de-activated and laying dormant.
Of course, in the early modern context, before the rise of the modern social sciences, Bodin had limited analytical resources available to him to express the essentials of such a principal-agent analysis and the associated problems of principal-agent relations in law, economics, and public administration—what might be called today “agency slack,” “information asymmetry,” and “transaction costs.”51 What he did have available to him, however, was the legal science of civil law, and insofar as the civil law was chiefly concerned with relations between legal persons, it enabled him to approach the body of concepts and principles approximating modern principal-agent analyses, although framed in the juridical language of the Corpus Iuris Civilis. The point of entry into Bodin’s thought concerning the delegated exercise of sovereignty by way of agency must, I argue, be through this juridical framework.
Bodin was, of course, not the first to frame the principal-agent analysis of sovereignty in terms of civil law. As we have already seen, in sixteenth-century jurisprudence, the legal humanists of Bourges, beginning above all with Alciato, crafted the enormously influential theory that the princeps of Roman law alone might be understood to be a principal or dominus with full right in their imperium, like the legal right of nuda proprietas, while magistrates were simple agents of the princeps who were granted limited usus or exercitium in the public imperium belonging rightfully to the princeps.
But Bodin was largely resistant to the humanist doctrine of delegation and agency, represented above all, in Bodin’s view, by Alciato, Donellus, and Dumoulin. The main reason for his opposition might be traced to what he viewed as an unjustified argument in the humanist theory of delegated authority. They treated all agents of the state’s sovereignty indifferently—from the highest magistrate to the lowest clerk—as if they were all in the same position (p.202) of inferiority and dependence with respect to the sovereign authority, just as any simple agent in civil law was with respect to a dominus.
To recall the humanist analysis, all magistrates in public law were understood to be legally indistinct in status from other legal agents in civil law, such as a procurator, an administrator, or a usufructuarius. This was the important innovation of Andrea Alciato who, in his Paradoxa, remarked that all legally constituted magistrates were not proper “owners” of their jurisdictional authority [domini iurisdictionis], but merely its usufructuaries. The unavoidable consequence of this humanist analysis was that a magistrate, even the highest magistrate of state, was legally incapacitated from acting in certain ways contrary to what is “proper” [propria] for an agent in civil law. For example, on the humanist theory, a magistrate was strictly prohibited from sub-delegating his authority to another agent, because they held their authority on a strict mandate. Such magistrates had, as we have already observed in Bodin’s Methodus, “the exercise of public authority [publici iudicii exercitium], but were unable to delegate it again to others.”52
But for Bodin, this humanist argument positioning all magistrates as simple agents without any proper right of their own was an absurdity, a “reason without appearance” [raison sans apparence; absurdum], on two important grounds.53 It contradicted the bare text of Papinian’s rule [D.1.21.1.pr] in Roman law that “magistrats may depute and commit … as they themselves please, of such things as they have by vertue of their office [iure magistratus], and which are proper to their estate.” There was also an obvious mismatch between law and fact in the humanist theory which, if enacted, would have artificially and unjustifiably restricted magisterial authority in a way potentially damaging to the government and general welfare of the state.54
Bodin began with a point of fact: ordinary magistrates—Bodin has in mind permanent judges with ordinary jurisdiction—did actually have the right to appoint agents and to delegate some share of their authority to them.55 This was the case not only in early modern France, but also in Roman legal procedure under the legis actio and formulary systems, where the first formal act in litigation was the nominatio of a private judge [iudex or arbiter] by the magistrate and delegation of jurisdiction to that agent. If magistrates were really nothing more than simple agents appointed to act on a strict mandate, as the humanist had opined, then it would follow, by that same logic, that magistrates cannot (p.203) re-commit that authority unto another agent, which was, Bodin thought, factually untrue.56
Even more troubling than this mismatch between law and fact was, for Bodin, the humanist argument explaining just why a magistrate could not sub-delegate.57 Specifically, the humanists relied upon a haphazard commingling of private law and public law ideas, by treating magisterial iurisdictio as if it were an object of private property in the care of magistrates, acting as if they were “usufructuaries” or “usuaries” of servient property.58 Since, on this view, magistrates were essentially usuaries, but not the proper “owners of jurisdiction” [domini iurisdictionis], they were thought to be bound by the general rule of equity that usuaries may not sub-delegate or reassign their rights of use onto another.59 To do so would, in effect, be equivalent to an illicit act of alienation, exposing the usuary to liability and civil remedies for restitution litigated by the dominus. This analysis provided, as Alciato put it in his Paradoxa, the “new reason why merum imperium is non-transferable” [nova ratio cur merum imperium in delegatum non transeat].60
Since, on the humanist theory, public authority can be treated as validly subject to rules of property, it follows that rules prohibiting sub-delegation or reassignment should also be applicable in the case of delegated jurisdiction. Dumoulin, who approvingly cited Alciato’s Paradoxa on this point, similarly reasoned that, just as a “usuary cannot constitute [nequit constituere] another usuary,” neither were magistrates “able to constitute their own deputies or lieutenants” [non possunt sibi constituere vicarios, vel locum tenentes].61 Ordinary magistrates were not “owners of jurisdiction” [domini iurisdictionis] but merely its agents, as “simple administrators.”
Bodin, however, felt that this humanist application of private law was deeply problematic, and he accused, by name, Alciato and Dumoulin of introducing—“without reason”—rules of private law in the analysis of public office.62 According to Bodin, both Alciato and Dumoulin (and their humanist disciples) were guilty of describing magistrates—such as the French bailiff and seneschal or the Roman praetor—“but as simple usagers or occupiers” [usuarii] of (p.204) sovereign authority who lacked the power of “the appointing of their deputies” [potestatem legatos constituendi].63 Bodin accuses Dumoulin, by name, for having “addeth the Pretors of cities, whom wee call Bailifes, and Seneschals, by the lawes of this realme, to have the power taken from them for the appointing of their deputies.”64 The problem with this application of the law of usufructs was not only that it opened the door to what Bodin saw as an unacceptable commingling of private law with public law. The more serious problem was that this would, in effect, bind magistrates to an artificial rule of private law with absolutely no validity in public law—namely, the rule that “he which hath a thing but only to use and occupy, cannot make any other usager or occupier but himself.”65
Bodin’s Criticism of the Humanist Theory of Delegated Authority
The legal humanist theory, thus, became one of Bodin’s chief targets of criticism in the République. As in the Methodus, Bodin was especially concerned to show that, while high public authority can certainly be delegated to magistrates and other subordinates, such delegation did not thereby reduce magistrates to the status of a mere manager or usuary of a property belonging to someone else, as in private law. The relationship, as Bodin wants to show, was fundamentally different, and he relied on a different Roman law source to make that argument.
As Bodin was well aware, even in his earlier work such as the Methodus, the origins of the humanist theory could actually be traced back to the medieval debate on imperium between the Glossators—Azo and Lothair—which he had already discussed in the Methodus. Bodin also knew that the humanists were responsible for deliberately reviving Lothair’s doctrine, thereby unsettling a legal doctrine that had been long settled through centuries of medieval legal science. As he observed, “many since have [adopted] the opinion of Lothair, so that the question [concerning imperium] remaineth yet undecided.”66 It was, above all, Alciato who reformulated Lothair’s doctrine using the civilian framework of agency to emphasize how even the most powerful magistrate or vassal was nevertheless inferior to his prince. In reviewing the history of this legal debate, Bodin viewed Lothair, Alciato, and Dumoulin together as representing one unified school of thought on the issue of magisterial authority, despite their separation over a period of several centuries—in opposition to the standard view of Azo, Accursius, and Bartolus.
(p.205) As in the Methodus, Bodin renewed his complaint that neither side adequately explained this question of delegated public authority.67 But the argument of the République is, in some important respects, richer and more conceptually sophisticated than in his earlier account. This was, Bodin thought, because they did not specify whether they intended their dicta on imperium to be a general theory of delegation applicable to all states, or a more narrowly crafted historical interpretation of delegated authority applicable only within the classical Roman context. Because of this failure to specify, Bodin thought the lawyers “entangled themselves, some mistaking the practise, and some the theorique” of the Roman state.68
If the intent had only been to describe Roman practice, Bodin declared that he could not conclusively judge which of the two had the better view. As he scornfully observed, “neither of them [i.e., Azo and Lothair] well knew Rome” and had “no insight into the estate or government of the Roman Commonweale.”69 On the one hand, Lothair might be said to have had the better view “if hee had spoken but of the auntient Pretors of Rome” during the Republic.70 On the other hand, however, Azo might be said to have had the better view if the Emperor’s question referred to the constitution of magistrates in the Principate where, as Bodin observed, the Roman Emperors granted a wide degree of discretionary power as imperium to the high magistrates such as the praetors, “the great Provost of Rome” [praefecti urbi], and the “presidents and governours of provinces” [praesides provinciarum], all of whom had the power to judge “according to their owne discretion” [arbitrio suo] and had “the power of the sword” [gladii ius = merum imperium] when the formulary procedure fell into disuse and was replaced by the cognitio extra ordinem.71 Bodin’s criticism (p.206) was that, depending on the specific period of Roman constitutional history, both Azo and Lothair were correct—and incorrect. We just cannot tell from the medieval sources alone.
But even if Azo and Lothair had intended to articulate a general theory of delegated state authority, applicable beyond the narrow classical Roman context, there still remained a more basic conceptual problem, in Bodin’s view: the relationship between princeps and magistrate was framed exclusively in terms of private law categories, almost as if the princeps-magistrate relationship emerged out of a commercial transaction between two private parties in civil law. Both views articulated by Azo and Lothair were faulty, but for different reasons. He thought, on the one hand, that Azo treated magistrates as the actual legal “owners” in their magisterial authority, just as if the supreme princeps had “communicated” to them a right of property in their public powers by an act of alienation approximating a donatio inter vivos. On Azo’s view, as we have seen, jurisdictional authority might be said to belong “properly” to the magistrate, just as, say, a plot of land belongs “properly” to its owner.
Lothair’s view, was, in some respects, even worse, in Bodin’s view. By denying magistrates any legal right to the public imperium, but limiting them merely to the simple “use” or “exercise” of such power, Lothair effectively reduced all magistrates to the inferior status of a personal agent or deputy, serving only at the pleasure of the supreme or sovereign authority.
What was wrong with Lothair’s (and, thus, the humanists’) treatment of magistrates as simple agents, according to Bodin? His chief complaint was a technical point: Lothair’s doctrine was based on a sloppy reading of Roman law. As we saw previously in the Methodus, “Lothair exploited [usurpavit] Papinian’s rule [D.1.21.1] by which magistrates are said to have, but are not able to delegate [mandare], the exercise of public judgment.”72 Lothair took an arcane rule of public law, articulated originally by Papinian, concerning the narrow topic of delegated magisterial authority, and (mis)applied it as a general rule concerning all forms of authority, including the relationship between the prince and his magistrate.
It will be recalled that, in the classical law of the Digest, a magistrate may, by mandate, delegate iurisdictio to a private judge. The jurist, Paul, even acknowledged that this delegated jurisdiction might be termed a species of imperium, so that it is fully reasonable to think that a magistrate may, by right of his office, delegate imperium to his agent. What the magistrate cannot do, however, was delegate merum imperium, the coercive power of the sword given exclusively to (p.207) the magistrate by law. Lothair apparently took Papinian’s analysis of principal-agent relations between the magistrate and judge in the context of civil litigation in Roman law as a general model to frame the principal-agent relation between a sovereign princeps and the magistrate. In doing so, he had assumed that the agency relationship between the princeps and all inferior magistrates could be treated as structurally homologous to the agency relationship between the magistrate and judge in Papinian’s analysis in the Digest. One was a principal; the other an agent.
But, as Bodin argued, these were not homologous relationships. Certainly, an appointed private judge in the context of Roman litigation may be thought of as an “agent” of a Roman magistrate (as Papinian opined), just as a magistrate may be thought of as an “agent” of the princeps (as Lothair and Alciato opined). But judges and magistrates were agents in fundamentally different ways. Judges held authority only so long as the superior magistrate permitted it, but magistrates held authority independently as laid out impartially in the law. It would, thus, be wrong to treat both just as if they were the same as any agent in private law—such as a procurator or actor—appointed by strict mandate to carry out some task on behalf of his principal. Failure to keep these concepts of delegation and agency analytically distinct had produced errors in legal reasoning, as he complained in Book III of the République:
Whereas the Romans had properly separated the “office of the Proconsuls Lieutenant” [l’office du Lieutenant du Proconsul], whom they called Legatum [Legatum, as in D.1.16: De officio proconsulis et legati] from the office of the Proconsull himselfe: and so of the deputie tearmed a “particular Commissioner” [le deputé en titre de commissaire particulier; Iudicem datum, as in the Decretales X.1.29, De officio et potestate iudicis delegati] from the Commissioner himself, and of him unto whome power was given by the magistrate to command, whome they called eum cui mandata iurisdictio est [as in D.1.21: De officio eius cui mandata est iurisdictio], the doctors [of law] have confounded all together under the name of “Delegats.”73
(p.208) Bodin, thus, lay the blame with Lothair and, by implication, his early modern humanist disciples, the “younger lawyers” who followed his dubious analysis of agency.74
To clarify: In Bodin’s diagnosis, the fundamental problem was not that Lothair applied a principal-agent analysis to differentiate magisterial authority from the supreme or “sovereign” authority. Bodin, after all, did accept in principle that all magistrates were in some sense like agents when they exercise authority on behalf of the sovereign state. The real problem, according to Bodin, was that Lothair and the humanists assumed erroneously that all magistrates could be uniformly modeled by such a simplistic model of agency which treated all magistrates—even the highest magistrates such as the praetor—indifferently as equivalent to one’s personal servants, deputies, lieutenants, or attorneys in civil law.75 But in doing so, the humanists utterly failed to elucidate what Bodin thought was the unique quality of magistrates that made them different from simple agents in private law. Something more, he felt, was needed.
Commissions and Offices: the Roman Law of Obligations in Bodin’s Theory of Constituted Magistrates
Bodin, thus, set out to remedy what he thought was not only a hopelessly simplistic position, but also an extreme position adopted by the humanist legal science. Indeed, the conditional exercise of sovereignty through delegated agency could actually be quite diverse in form. Whereas one might hold public power as a personal grant only at the pleasure [arbitrio] of the sovereign authority, another might hold public power by a formally promulgated statute [lege] constituting a permanent and impersonal office. The failure to detect this diversity in form, according to Bodin, was due entirely to the humanists’ inability to draw the proper finer-grained distinctions in the means by which authority can be delegated unto others.
One can give authority, even supreme authority, to another party in one of two ways, either as a “pure donation” [donatione pura] with “no conditions” (p.209) [conditiones nullas, sine conditione] attached or as a “conditional grant” that generates valid obligations.76 The point was essential in the analysis of commercial transactions between private parties in civil law. As Bodin observed, classical legal science distinguished between a donatio perfecta which, once made, “does not attach to any subsequent conditions” [condiciones postea non capit] and other conditional transactions whereby the original donor retained certain residual rights in whatever is given to the donee.77
Bodin applied this analysis to the various sorts of grants a sovereign authority may choose to make in delegating public authority to a subordinate. Like any object of property, the state’s powers could be framed explicitly in terms of the Roman juridical language of private commercial transactions: public power could be “given” by the state to others.78 Insofar as this is true, the relevant question then to ask concerned the terms on which such power could be given. On the one hand, such power could be given freely as a donatio perfecta, without any conditions or restrictions, so that the state could have no residual right or claim to those powers, once they are given away. As Bodin observes, these are not, properly speaking, delegations at all but, in effect, full and irreversible alienations of authority given in perpetuity. Once completed, they cannot be undone or reversed; and for this reason, Bodin is very careful in cautioning states to avoid enacting these sorts of perpetually self-limiting acts, such as permanent grants of immunities and privileges.79
Such alienations, however, are to be distinguished from conditional grants of authority which, as he puts it, are nevertheless tied or “entwined” [implexa] by some “stipulation” [causa] or “condition” [conditione] binding the donee to some obligation owed to the original donor or principal of the delegated authority, the state. Again, Roman law was the legal authority cited by Bodin to illustrate and sharpen the underlying concept. A principal may give some share of authority to an agent, such as a “praetor who is exercising someone else’s jurisdiction” [D.1.21.3]. But so too can that same praetor further “delegate jurisdiction” [iurisdictionem mandare] onto another agent appointed to then “act in place of the praetor who delegated it” [fungetur vice eius qui mandavit], and “not in his own right” [non sua].80 What distinguishes all these cases of conditional grants from the other cases of alienations or donations is that, here, the donor “giving” authority to the donee, as his agent, nevertheless retains some residual right to the delegated authority, even while the agent is in temporary possession of it. The donor can always recover what he has given away.
(p.210) The basic distinction then is between unconditional donations of power and conditional grants of power. But Bodin did not stop his analysis here.81 He was keenly aware that, within the latter category, conditional grants of authority were even further divisible, depending entirely on the sort of conditions that were attached to the grant from sovereign to agent.
On the one hand, a sovereign might grant public power to an agent as a temporary or provisional grant to be held only “by sufferance” at the pleasure of the sovereign and revocable at any time. Bodin had generally called agents of this kind a “commissioner” [commissaire; curator].82 Such commissioned agents held, by definition, an “extraordinary charge” [Fr. charge extraordinaire; L. extra ordinem], which was unregulated by law [sine lege] and entirely provisional. It was made as a gratuitous grant of the principal’s authority “which ceaseth by the death of him that granted the same, or by the revoking of the commission.”83 What distinguished this grant of commission was not so much the magnitude of power—after all, even the Roman dictator was regarded a commissioner with “absolute” power—but rather, the fact that a commissioner’s power was fully dependent on the source of that power.84 Indeed a commission could, at any time, be “arbitrarily revoked” at the pleasure of the sovereign [arbitrio revocantur] and “ceaseth at death.”85 It was for this reason then that Bodin thought all commissioners, even the most powerful commissioners, such as the Roman dictator or the Turkish vizier, were nevertheless “bound, and as it were, tied unto the very words of their commission, and especially where question is of the affairs of state.”86
But extraordinary commissions were not the only sort of conditional grants a sovereign could make to a subordinate agent. Just as a sovereign can make conditional grants of public power so that the commissioned agent is bound by a unilateral obligation to the sovereign, so too can a sovereign make conditional grants that are doubly binding by creating a bilateral obligation which not only tied the agent to the sovereign, but more importantly, tied the sovereign to the agent. This latter form of conditional grant of power was denominated “office,” and its incumbent the “officer” [officier; officialis].87
(p.211) What crucially distinguished the officer from the commissioner was the nature of the “charge” by which each held and exercised their power by way of agency. Whereas agents appointed by commission held public authority as an “extraordinary charge,” held only as a temporary personal grant at the pleasure of the sovereign, agents appointed to a proper office held what Bodin called an “ordinary charge” [charge ordinaire] made not by an extralegal sovereign act of will, but as an impersonal legislative act formally enacted through settled law [limitee par edict; lege definitum].88 Just as any other statute, a public office must be constituted according to a publicly recognized process of legislation, a point that Bodin observes in the different processes used to appoint officers and commissioners.89 This is what separated, in Bodin’s analysis of Roman public law, proper officeholding magistrates, such as the consul and the praetor, whose offices were established by law and whose powers of imperium were conferred formally by leges imperii, from mere temporary commissioners with no office or permanence, such as the dictators, quaestores parricidii, and the duumviri.
Legal permanence and continuity were the essential features distinguishing an office from a commission. As Bodin put it, offices “continue for ever after they be once by edict erected,” even after the sovereign authority which created such office by law has died or is no longer in office.90 It is precisely for this reason that all officeholders enjoy an independence and autonomy in their offices that commissioners do not: “The power of an officer … is better authorized, and larger than a commissioner.”91 This independence and autonomy was indeed what Bodin, following Bartolus, considered to be the “noble” [nobile] quality of office and, by extension, of the incumbent officeholder.92 Office implied certain legal rights to which the officeholder was entitled, but were inaccessible to all commissioners. By virtue of his office, a magistrate licitly could do certain things by “right of office” (which we have already seen has been described in Roman law as acting “by their own right” [suo iure] or, more specifically, “by right of magistracy” [iure magistratus]), which simple commissioners could not do, such as appoint agents and delegate powers to them by a mandate. Classical Roman law in the Digest (Papinian), as we have seen earlier, made special note of these legal “rights of magistrates” [iura magistratus], which made the humanist interpretation highly untenable.
Magistrates, thus, were not simple commissioned agents, as the humanists thought, comparable to the iudices or arbitri of Roman law, conceived as mere instruments without any discretion for the legis actio. They were, in a sense, (p.212) also principals in their own right [suo iure] who had “integritie and discretion” in the scope of their jurisdiction. Bodin quite remarkably interpreted these rights of magistracy broadly, so that magisterial office, or what he called officium iudicis, even implied certain capacities empowering the magistrate to act for the sake of equity or even piety—sometimes even against the written law, as justice required.
Richard Bonney once identified this distinction between commission and office as one of the most original and enduring contributions in Bodin’s constitutional thought.93 Indeed, Carl Schmitt, writing in his treatise on Dictatorship, regarded this analysis as “an extraordinarily clear and detailed juridical foundation” for the analysis of dictatorship.94 Bodin himself thought it to be critical to understanding his analysis of government, separating “seigneurial governments”, where the sovereign authority is also the “owner [dominus or seigneur] of all things” in the state, from properly “lawful governments” where the sovereign authority, governing not by naked aribtrary will, but through law, can never have “the proprietie of the publike demains,” and that “propertie of the crowne lands is not the princes,” but instead, “belong[s] unto the commonweale.”95
What is most important, however, is how Bodin tries to explain the nature of this difference between commissions and offices by an analogy with commercial transactions in civil law:
An office is a thing borrowed [vne chose empruntee; commodato], which the owner cannot demaund againe before the time it was lent for bee expired: but a commission is a thing which one hath but by sufferance, [a]nd as it were by leave [vne chose qu’on a par souffrance, & par forme de precaire; precario], which the owner [seigneur] may againe demaund when he seeth good.96
The vocabulary invoked by Bodin in the Latin here is especially significant, and that is because commodatum and precarium were two types of legal obligations in Roman law. But there was an important difference between them that was critical for Bodin’s argument in distinguishing between delegation of authority to officeholding magistrates and delegation of authority to commissioners.
The precarium was the exemplar of what jurists called a “unilateral obligation”—that is, an obligation where only one party has the right to demand performance of some action by another duty-bound party.97 By describing (p.213) extraordinary commissions as comparable to the unilateral obigation arising from a precarium, Bodin was actually saying a great deal about the sort of legal relationship he envisaged between the sovereign and the commissioner. Since, in a commission, all rights accrued entirely to the sovereign, the commissioner served only at the arbitrary pleasure of the sovereign who could arbitrarily revoke the commission at any time [imperantis arbitrio revocari], just as in a precarium, the owner could arbitrarily and rightfully revoke the grant away from his precarious tenant at any time.98
By contrast, the commodatum—the legal model of office—was an example of a “bilateral obligation,” arising from a “real contract” [obligatio re contracta] involving generally the delivery [traditio] of some article of property to another party with the expectation of return at some later date. The distinctive feature of these bilateral obligations consisted in the juridical symmetry since rights and duties in these cases were reciprocally binding on both parties to the contract.99
The upshot was clear. If the magisterial office was, legally speaking, res commodata, then it must follow that the magistrate appointed to such an office, as well as the sovereign, who not only constituted the office but enabled the appointment of the officeholder, were both tied by a mutually binding bilateral obligation, and not just the magistrate. On the one hand, the magistrate is bound by his obligation to the sovereign, as a sort of “borrower” of the public office and its imperium, to exercise it in good faith as well as to lay down [deponere] and return the office to the sovereign upon completion of his legally specified term of office.100 Yet, so too is the sovereign bound by an obligation to the magistrate, by a duty of non-interference. In a government where offices are constituted by law, the sovereign authority must not interfere in the affairs of the magistrate or remove the magistrate without cause.101 So, while the sovereign authority may certainly be exempt from its own laws, legibus solutus, it is not exempt from its contractual obligations, especially where those obligations arise from legal grants of office to magistrates.
That Bodin understood the relationship between the sovereign authority and government offices in terms of bilateral obligations is supported further by his embrace of the whole range of bilateral real contracts in Roman law, not (p.214) just the contract of commodatum, but also the contract of deposit [depositum] and the contract of security for a debt [pignus], all of which appear in one of the most famous passages in all of the République:
[Supreme magistrates empowered with summum imperium] cannot, therefore, be called “sovereign princes” [summi principes] but rather are, for that period of time, merely the “guardians” [custodes; depositaires, & gardes] of the supreme power and imperium, until such time when the sovereign prince or people [summus princeps populusve; au peuple ou au Prince] might demand back [reposcat; revoquer] the entrusted [depositum] imperium, of which they are properly named the “possessors” [possessores] as well as the “owners” [domini]. They are, not unlike those individuals [in civil law] who gave [on the word, “gave”/dederunt, Bodin adds citations to D.184.108.40.206 and 41.2.18] their own things [res suas] to others by loan or by mortgage [commodato, vel pignori]. Such sovereign princes and peoples merely “entrusted” [permiserunt] their own [suam] iurisdictio or imperium for another’s “enjoyment,” either for a certain period of time, or for as long as the sovereign pleases [precario; precaire]. They do not however cease to be the lords as well as possessors [arbitri ac possessores] of their own [suae] power and iurisdictio [citation to D.2.1.5, 2.1.6].102
There is a general point worth stressing before proceeding further. Bodin’s notion of “absolute” sovereignty is an absolution or release only from his own laws.103 It is not, however, to be understood as a release from other sources of binding obligations, including, especially, those contracts a sovereign authority enters into voluntarily with subjects.104 What this suggests is that the proper way of understanding the relationship between a sovereign authority and a (p.215) subordinate magistrate in a legally constituted office of government is in terms of a contractual obligation, to which both parties are bound.
Constitutional Choices: Government of Magistrates or Government of Commissioners?
Bodin’s analysis of sovereignty and government, and of offices and commissions, suggests a stark choice to be made between two very different options of constitutional design. A sovereign may, on the one hand, choose to govern by means of “commissioners,” all directly subservient to the sovereign’s “word, beck, and call,” and holding their magisterial imperium at the sovereign’s pleasure, or arbitrium. Bodin called this type of government “seigneurial” because it positioned the sovereign authority as a seigneur [= dominus] with respect to his commissioned agents who held subordinate authority “by sufferance” only.105 It was the mode of government by which the earliest kings, such as the legendary hunter-king, Nimrod, governed, before the invention of law. And it was the mode of government in unfree states, such as among the Turks and Muscovites. By contrast, a sovereign may, on the other hand, choose to govern by means of legally constituted magistrates, by legally constituting or creating permanent public offices and investing officers occupying those offices with imperium to be exercised according to publicly known terms of office.
A sovereign authority is entirely free to establish whatever mode of government it pleases, whether a government of magistrates constituted by law, or a government of commissioners appointed by will, or some combination of both. But the issue of government was not entirely a neutral question of institutional design. Bodin was deeply concerned that the unrestrained or unregulated exercise of sovereign authority would, in the end, threaten the very stability and existence of the state itself.
What appeared to be a purely analytical question of civil science concerning institutional design quickly became, for Bodin, a normative question of political theory concerning how a state should properly be governed and how a state’s public institutions should be designed and regulated. Insofar as it is accepted that states must be governed indirectly through the delegation and entrusting of state authority to state agents, the further question must be asked whether a state should be governed through magistrates with a legally defined office or through commissioners, whose dependence on the arbitrary will of the sovereign makes them no better than a mere seigneur or dominus?
Bodin’s answer was unambiguous: It is, on balance, better to govern indirectly through law and through legally constituted magistrates. Bodin offers some strictly utilitarian reasons for this. Direct, unmediated exercises of sovereignty by the sovereign authority (whether a prince or a people) always has (p.216) some sort of “transaction cost.” The more it is so exercised, the more the state exposes itself to the risk of losing sovereignty altogether:
If the [sovereign] prince or the [sovereign] people shall take upon themselves the authority of the senate, or the commands, offices, or jurisdictions of the magistrates, it is much to be feared, least that they [i.e., the sovereign] destitute of all help, shall at the length be spoiled of their own sovereign majesty also.106
Thus, in making the public choice to exercise sovereignty directly—for example, when designing new public institutions, declaring war, reforming laws, or creating new offices—the sovereign authority must strategically weigh these “transaction costs” and measure the calculated risks that must be endured in matters of state. This is why he states, as a general—although perhaps counterintuitive—principle of sovereignty, that “the less the power of the sovereignty is … the more it is assured.”107
But Bodin’s theory was further complicated by the fact that the sovereignty of a state could take one of three forms—monarchy, aristocracy, or popular sovereignty—depending on who, or what, is recognized as the exclusive and ultimate bearer of sovereign right within a state. So, for example, a state in which sovereignty is indivisibly and exclusively held by a king is to be classified as a monarchy, while a state in which sovereignty is held collectively by a group of optimates or nobles is to be classified as an aristocracy.
More importantly, Bodin insists that there can be no universal “one size fits all” formula for government that can be applied with equal success to monarchies, aristocracies, and popular states. Public institutions that may function best with a monarchy may not be appropriate, say, for a popular state. And that is because each form of sovereign state brings with it a unique set of problems that may be absent in other forms. To stress this point, Bodin introduces an analogy from medicine. Sovereign states are comparable, he argues, to different types of organic bodies, each with different sorts of diseases and ailments that are unique to each type. As Bodin puts it, “the first rule for the keeping and preserving of commonweales in their estates is well to know the nature of every comonweale, together with disases,” so that the sovereign can prescribe the proper institutional remedies to cure those diseases that weaken sovereignty.108 Government—the whole institutional structure by which public authority is exercised on behalf of the sovereign—functions, in this analogy, as medicine, introduced to cure or minimize those illnesses that may cause further harm to the body politic.
Sovereigns of all states, thus, confront this most basic of challenges in the constitution of government. Should the state be governed “seigneurially” or “lawfully”? (p.217) Should the state constitute ordinary magistraterial officers or should it rely on commissioners? How large or small should government be? Who should be eligible, and ineligible, for positions of authority? What ought to be the procedures for appointment to such positions? Under what circumstances should the sovereign authority in the state interfere in the actions and decisions of its government?
The Problem of Popular Sovereignty: Governing the Popular State
We now, finally, arrive at Bodin’s theory of sovereignty in the “popular state,” what he called status reipublicae popularis [l’estat populaire]. The popular state, as Bodin defines it, is that in which “all or most of the people together commandeth in soveraigntie over the rest altogether, and over everie one in particular.”109 Like the other two principal forms of state in his theory—that is, monarchy and aristocracy—the popular state has its own idiosyncracies, even ailments, that require an appropriate constitutional remedy.
But unlike monarchy and aristocracy, the popular state presents a unique conceptual difficulty, and that is because the vertical relation of sovereignty and subjection is obscured where the people holds sovereignty. In a monarchy, a king holds sovereignty over subjects, just as, in an aristocracy, the optimates collectively hold sovereignty over the common people.110 But in a popular state, the people seem to play both roles of sovereign and subject; they hold sovereignty over themselves.
This presents a problem for Bodin, since he regards the notion of self-rule as incoherent. Just as one cannot bind oneself to promises or obligations, neither can a popular self be capable of self-binding. But he is unwilling to dismiss the validity of popular sovereignty outright. Instead, while acknowledging the criticism that one “cannot bind itselfe unto itselfe,” Bodin offers a theory of the popular state that relies on a typical argument derived from medieval corporatist thought to get around this problem. There is, he argues, a need to distinguish between two concepts of the people—one, as a collective body that can be bound “all together” and another, as an aggregate of individuals who can each be bound “everie one in particular.”111 Given this distinction, he specifies that “the people in general is a certaine universall bodie, in power and nature divided from every man in particular.”112 Sovereignty—as an indivisible bundle of rights and powers—has to belong legally to one unitary party. So, in the case of popular sovereignty, the people, as bearer of sovereign authority, must be understood not as an aggregate or multitude of particular individuals, but (p.218) represented as one unitary entity, like a legal corporation, capable of owning and asserting actionable rights, of having oaths and acts attributed to it, and of being bound by obligations—just like a princeps.
Bodin is, thus, very clear that popular sovereignty is to be recognized as a fully legitimate and valid form of political rule in an independent state. There is no doubt in his mind that the popular state is a state and should be recognized as such, and he applies this label to numerous states organized around the principle of popular sovereignty, such as Athens, Sparta, Thebes, Florence, the Swiss cantons, and, above all, Republican Rome.
That having been said, however, it is well known that Bodin does not think much of the popular state, which, at one point, he compares to an immodest strumpet.113 The principal ground for his criticism of popular sovereignty is in the natural instability of the people as a sovereign entity, a worry that is expressed most clearly in Book VI of the République. Even though a people can be thought of as one unitary entity, it is naturally a plurality. Its natural tendency is to decay or degenerate into a mass crowd or multitude [turbum] of private and conflicting interests, wills, and passions. Politically, he argues, such decay presents an existential threat to a popular state: “No tyrannie,” he writes, “is so dangerous as that of a multitude.”114 And that is because a people, in possession of sovereignty, can very easily lose it: “Maiestie,” as he put it, “doth perish and decay in a multitude.”115
What accounts for this natural tendency of popular degeneration? The natural instability of popular sovereignty derives entirely, in Bodin’s analysis, from what he calls the “true nature of the people”—the unchecked popular desire for “libertie without restraint of bit or bridle” and “to have all men equall,” even contrary to the natural inequality prescribed by the law of nature.116 One inevitable political consequence of this popular egalitarianism is the common sharing of sovereignty in the populus, not only by “judicious and wise men,” but also by “furious, ignorant, and mad men.”117 It is therefore necessary in a popular state to institute measures, by some form of constitutional engineering, as “brakes” to slow the almost inevitable degeneration of a naturally “fickle and fanatical” people into a condition of “madness” or a “turbulent” mob or perhaps even a “beast with many heads, without jugement, or reason,” and incapable of self-rule.118
(p.219) Bodin’s proposals for curing the ills of democracy were, in part, aimed at remedying, or at least containing, the capricious and fickle nature of the people by non-institutional means. Recognizing that a people can so easily be swayed by the force of the rhetorical trickery of “popular men” who can trap a state as “unto spiders webs,” Bodin proposes, as a sort of counter-measure, some device to stabilize the naturally weak and inconsistent psychology of a people, so that they do not become like a fanatical or beastly madman in need of government by a tutor—or worse, in danger of enslavement by another power.119 To soothe and calm this natural and latent ferocity of the people, Bodin suggests that perhaps even music or rhetoric could serve this function.120
But the more important proposals for protecting a sovereign people from itself were fundamentally institutional in nature, and concerned the question how a sovereign people should exercise its sovereignty. As a general principle, Bodin argued that states generally expose themselves to the most danger when sovereigns get too directly involved in politics—especially by “intermeddling” with the legislative and judicial powers of state.121 This is, to be sure, the case not only for popular states, but indeed, also for monarchical and aristocratic states. Monarchies, for example, are exposed to the most risk of political instability where sovereign princes, governing “seigneurially,” intervene too frequently in the political process. The safest strategy of constitutional design in a state, thus, is one of “de-politicizing” sovereignty to remove and de-activate the sovereign authority from the day-to-day tussle of politics and policy-making which properly ought to be delegated to legally constituted magistrates. In this respect, Bodin becomes one of the most important early theorists, arguing for the instrumental rationality of the constitutional strategy of precommitment and self-binding.122 The interest of the state calls for a self-limitation on the exercise of sovereignty, in all its forms. Thus, Bodin argues, monarchs should govern through legally constituted magistrates with ordinary offices and defined powers, rather than extraordinary commissioners empowered with, and subject to, the potentially faulty arbitrary will of a prince.
The same lesson applies to popular states. Just as princely states should govern to minimize the need for sovereign intervention, popular states should likewise govern in such a way that popular sovereignty is voluntarily limited and regulated through institutional means, so as to minimize occasions when the people are required to intervene directly in matters of state and activate their popular sovereignty. This principle informs some of Bodin’s views on (p.220) institutional design in popular states. For example, he cites the example of the Swiss cantons to show that most functions of government should be delegated to magistrates, so that the sovereign people play only a minimal role, with “nothing being almost left unto the people more than the choosing of their officers.”123 Observing the natural ambition of citizens nurtured in democracies, where offices are equally open to all citizens, Bodin advises that magistracies should be numerous and temporally limited, so as to allow a constant turnover to satisfy such ambition and prevent “an appetite or desire to some one or other ambitious citizen to aspire unto the sovereignty alone.”124 He even argues magistrates in a popular state should be allowed to be “at variance and discord among themselves.”125 And since reliable access to such public offices ensures constitutional stability, Bodin warns that “the laws and ordinances concerning the magistrate’s time [in office in a popular state should] be not changed, neither their charge prorogued, if the necessity be not very great.”126
But there is a potentially anti-democratic consequence to these prescriptions, since it suggests that a people who legally have the right to sovereignty nevertheless should, for reasons of state, voluntarily remove themselves from the task of public administration, of exercising functions of government. Instead, Bodin advises, popular states should “deposit,” “lend,” or “entrust” their popular sovereignty to legally constituted government officers empowered to exercise public authority on behalf of the people. What emerges, then, in Bodin’s doctrine of popular sovereignty is not so much a theory of direct democracy, but one of indirect democracy: The people exercise their sovereignty through other government agents, intermediaries, or mandataries by an act of legal delegation.
Of course, as we have now seen, not all grants of public authority are the same. While some grants may be made on sufferance as extraordinary commissions, subject only to the arbitrary will of the sovereign, other grants of authority are made in the form of legally prescribed impersonal grants of office detached from the popular will. This basic difference accounts for the wide variations in the stability (or to use a more contemporary term, “institutional performance”) of popular states throughout recorded history. While some popular states, such as the Roman Republic, Geneva, and the Swiss cantons, enjoyed a remarkable degree of political stability over time, others, such as Pericles’ Athens, Soderini’s Florence, and Caesar’s Rome, suffered from civil disorder eventually resulting in the loss of popular sovereignty.
What accounts for the difference between the more successful and the less successful popular states? The answer, according to Bodin, was entirely due to the constitutional choices a sovereign people make in designing their government. The issue is this: How much of a role should the people actively play in (p.221) the governing institutions they create? When institutions are designed so as to “insulate” the people from political activity and, in a sense, “de-activate” what Bodin saw as the potentially self-destructive force of democratic politics, popular states become the most durable. Such states, in Bodin’s view, have institutions that address the special needs and problems unique to popular states; such institutions function as devices to limit and regulate the potentially self-destructive force of unbridled popular sovereignty, a fate that has, in Bodin’s view, brought the people in countless popular states such as Athens, Rome, and Florence to lose not only their popular liberties, but also their popular sovereignty.
The Roman Model: Popular Sovereignty and Non-Popular Government
As in so many other areas of his thought, the political experience of classical Rome provides Bodin with a point of reference to illustrate his analysis. For Bodin, Republican Rome was the exemplar of the popular state.127 This democratic interpretation of Roman Republican politics, it is worth noting, was a highly unconventional view, running against the tide of the historically dominant mixed-constitution tradition of Polybius and Cicero that viewed the Roman constitution not as a “pure” form of state, such as a monarchy, aristocracy, or democracy, but as a “mixture” of all three, with monarchical power in the consulate, aristocratic power in the senate, and democratic power in the popular assemblies. The likely source for Bodin’s democratic interpretation, according to Richard Tuck, was the historical scholarship of Nicholas de Grouchy, who, in his study, “On Roman Assemblies” [De Comitiis Romanis], had uncovered the voting procedures in Roman popular assemblies.128
But despite locating Roman sovereignty corporately in the populus Romanus as assembled in their comitia, Bodin nevertheless observed that Roman popular sovereignty was coupled with non-popular or non-democratic institutions of government. In this arrangement, most public tasks of government, within Italy and among the provinces, were legally administered by high-ranking magistrates with imperium together with the senate, a socially exclusive group composed mostly of patricians. For this reason, Bodin concludes that, even though Rome was technically a popular state, its government was aristocratic, and perhaps even a “harmonic” mixture of aristocratic and popular elements of government.129 It was, moreover, a highly advantageous combination of (p.222) sovereignty and government for the Romans, since it was precisely the non-democratic arrangement of Roman government in the magistrates and senate that accounted for Rome’s longevity and conquests: “Rome never flourished more than in the popular estate,” when most government was handled indirectly by the senate and magistrates.130
Of course, the Roman Republic did not always rely on the government of properly constituted magistrates and senates. In extraordinary moments of crisis or emergency, Rome suspended the ordinary government and placed plenary authority in a dictator for resolution of such crises. He observed more troubling patterns of government in the Late Republic, which revealed an unsettling willingness to innovate and do away with settled institutional patterns of government to satisfy immediate short-term plebeian interests. One important example was the tribunate of the Gracchi, whose populist actions aimed at enlarging the power of the plebs by expropriating public lands made the people “entirely rabbit” [rabid].131 This was precisely the corruption of popular sovereignty that Bodin thought Roman Republican government was designed to protect against.
But, by far, the most important examples illustrating the violent decay of popular sovereignty were the extraordinary dictatorial commissions and civil wars in the last century of the Republic in the dictatorships of Sulla, Pompey, and Caesar—the inevitable consequences, in Bodin’s view, of too much direct involvement by the people in matters of state.132 On Bodin’s analysis, no Roman dictator ever held sovereignty; it always remained with the Roman people even during the dictatorship, which Bodin characterized merely as a precarious grant on sufferance—that is, a “commission.” But the difference in this critical period preceding the fall of the Republic was the irreparable damage that such repeated “commissionate government” was inflicting not only upon the ability of the senate and the magisterial order to govern Rome and her provinces, but also upon the institutional function of the Roman government as a check on the potentially self-destructive force of populism.133
The lesson Bodin takes away from the case of Rome is how the dismantling of well-settled government institutions and abrogation of public laws in popular states—as the sovereign people of Rome did by extraordinarily and even “seigneurially” assigning plenary authority to dictators—could very well result ultimately in the loss or forfeiture of popular sovereignty. This is precisely what happened with the perpetual dictatorship of Caesar and the (p.223) subsequent rise of the Principate.134 No doubt, the people of Rome had an original right to their sovereignty, to be exercised as they please and by their mandate. Bodin’s point, however, is more nuanced, that the exercise of such sovereign right comes with real dangers and costs attached, almost as an irresistible intoxicating effect on the bearer of sovereignty. It is almost as if sovereignty is a naturally addictive substance, the use of which, without proper restraint, invites its bearer (whether a prince or a people) to use it even more and to the point that it can cause irreversible harm.
Bodin’s analysis of popular sovereignty lays the foundation of what some have called the modern “paradox of constitutionalism.” A people with the full right of sovereignty nevertheless can only exercise it effectively through some non-popular indirect means, by delegation, mandate, agency to legally constituted magistrates—or to use a more modern formulation—by “representation.”135 It is a paradox that many commentators have associated with modern political theorists such as Sieyès. But the source of this paradox, I want to argue, is ultimately in Bodin who, despite his (undeserved) reputation as a royal absolutist, actually turns out, on this reading, to be perhaps the most important theorist of popular sovereignty. His is a model of an indirect and delegated popular sovereignty that serves as the guiding ideal in the constitutional thought of early modern civilians who concluded that sovereignty could only be popular in structure.
The aim of this chapter has been to present Jean Bodin as a theorist of popular sovereignty and to show how his particular version of popular sovereignty emerges from his background legal theory. The key to my analysis has been Bodin’s treatment of delegated authority, designed to show that even a people with the full right of sovereignty, just like a monarch, is nevertheless fully entitled to exercise their public authority by way of delegation to government agents. One of the important consequences emerging from Bodin’s theory is the segregation of popular sovereignty from democratic government. Indeed, for Bodin, popular sovereignty need not imply democracy, let alone direct democracy, as he tries to illustrate in his study of government in Rome and Geneva. On the contrary, popular sovereignty is understood to be most secure and most effective as a constitutional form where government is least democratic and insulated from the vicissitudes of democratic politics and mass decision making.
None of this, to recapitulate, is intended to suggest that Bodin should be regarded as a democratic theorist favoring democracy. Instead, the purpose (p.224) here has been to highlight the many complex layers of Bodin’s theory, which, despite his own personal misgivings about popular constitutions, acknowledges popular sovereignty as a valid constitutional form alongside monarchy and aristocracy. But by showing how popular states are to govern themselves, by some mode of delegation and legal constitution of government offices, Bodin perhaps inadvertently prepared the groundwork for what would become the standard theory of popular sovereignty in early modern constitutional thought, where the only legitimate source of public authority can be the populus and never a princeps.
(1) Julian Franklin’s influential explanation for this is the sudden outbreak of religious violence and acts of resistance after St. Bartholomew in 1572. Jean Bodin and the Rise of Absolutist Theory Ch. 3. But the suggestion that Bodin shifts from an earlier constitutionalism to a later absolutism has been challenged continuously, such as in King, The Ideology of Order and, more recently, in Richard Tuck, Sleeping Sovereign, who has suggested that the relationship between the Methodus and the République is comparable to that between Hobbes’ De Cive and the Leviathan, as an unfolding and continual development of ideas.
(2) A recent example of such an interpretation is Eleftheriadis, “Law and Sovereignty” 535–69.
(3) République 122 [1.8]: la puissance absolue & perpetuelle d’une Republique. De Republica 78: summa in cives ac subditos legibusque soluta potestas. Commonweale 84. I use the Knolles translation for English texts, although I use the term “state” (instead of Knolles’ “Commonweale”) to translate république and respublica. In this respect, I follow the convention established in the Italian translation of Margherita Isnardi Parente and Diego Quaglioni (lo stato) and the German translation of Bernd Wimmer (der Staat).
(4) Loughlin, Idea of Public Law 72–3.
(5) Commonweale 1 [1.1], République 1: République est un droit gouvernement de plusieurs mesnages, & de ce qui cur est commun, avec puissance souveraine; De Republica 1: Respublica est familiarum rerumque inter ipsas communium summa potestate ac ratione moderata multitudo. Bodin refers again to this definition in the opening paragraph of Book I, Chapter 8, where he stresses again the essential necessity of sovereignty for the very existence of the state.
(6) République 10, De Republica 8, Commonweale 8 [1.2]; cp. Methodus 154, citing Ulpian on the meaning of familia at D.220.127.116.11 and 50.16.85. The same citation recurs at République 479 and De Republica 331 [3.7] to establish the principle that a collegium must have at least three members.
(7) Commonweale 365, De Republica 331 [3.7].
(8) Commonweale 85 [1.8].
(9) De Republica 14 [1.3], 78 [1.8]. The margin of 82 treats of the topic of absolute power as legibus soluta potestas, stressing the juridical foundation of the concept, whereas République 128 has puissance absolue.
(10) Rothbard, “Jean Bodin: Apex of Absolutist Thought in France.” There remains some considerable doubt among historians whether “absolutism” is even an accurate or useful category in the study of the political and intellectual history of early modern Europe, such as John Daly, “The Idea of Absolute Monarchy in Seventeenth Century England,” Historical Journal 21 (1978): 227–50; Nicholas Henshall, The Myth of Absolutism: Change and Continuity in Early Modern Monarchy (London: Longman, 1992); and more recently, Cesare Cuttica and Glenn Burgess, ed., Monarchism and Absolutism in Early Modern Europe (London: Pickering and Chatto, 2011).
(11) Salmon, “Legacy of Jean Bodin” 500–22 explores some of these alternatives.
(12) Commonweale 90, De Republica 84 [1.8].
(13) Glossa Ordinaria on D.1.3.31 on Princeps legibus specifies that the emperor subjects himself to the law on testaments, voluntate sua. Accursius cites, in turn, Inst.2.17.8, reciting the rescripts of Severus and Antoninus that “though we are not bound by the laws [legibus soluti sumus], nevertheless we live [legibus vivimus] in accordance with the laws.”
(14) This is because lex is formally defined as the command of the sovereign, a device which imposes legal obligation upon the subject. For a sovereign to be subject to a lex of its own making would be as incoherent, in Bodin’s view, as a person being bound by an obligation to a promise made to himself. Bodin cites, almost verbatim, the principles of D.18.104.22.168 and 32.1.22.pr at De Republica 85 [1.8].
(15) To recall, the gloss on D.1.3.31 cites the contrary principle of the lex Digna at C.1.14.4, that even though a ruling princeps is technically legibus solutus, he ought nevertheless to conduct his rule so that he is legibus alligatum, “subject to the laws.”
(16) De Republica 14 [1.3].
(18) Stephen Holmes, Passions and Constraints: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995) 115, and Holmes, “Precommitment and the Paradox of Democracy” 214–15. This was because princes were bound by divine law and natural law, which no prince could violate, even by right of sovereignty.
(19) Giesey, “Medieval Jurisprudence in Bodin’s Concept of Sovereignty” observes that the major authorities cited by Bodin in République are Baldus, Bartolus, and Alexander Tartagnus, as well as the Canonists, Panormitanus and Felinus Sandaeus.
(20) Pennington, Prince and the Law 282–3. Some examples of this conventional view include Franklin, Jean Bodin and the Rise of Absolutist Theory; Mesnard, L’essor de la Philosophie Politique au XVIe Siecle; Allen, A History of Political Thought in the Sixteenth Century; Helmut Quaritsch, Staat und Souveränität (Frankfurt am Main: Athenäum, 1970).
(21) Commonweale 183 [2.1].
(22) Commonweale 102–03 [1.8], is particularly critical of laws in Antiquity that were treated as if they were immutable. As he writes, “there is no law which is perpetuall.”
(23) Commonweale 470 [4.3].
(24) Commonweale 470, De Republica 426 [4.3].
(25) Commonweale 471 [4.3].
(26) On this point in Bodin’s thought, see Holmes, “Precommitment and the Paradox of Democracy” 214–15; Holmes, Passions and Constraints 115. On the question whether a sovereign legislator should actively introduce new legislation, especially on matters of state, Bodin indicates that such sovereign power should rarely be exercised, except in cases of “urgent necessitie.” Bodin, Commonweale 470–71 [4.3]. See also Lee, “Office Is a Thing Borrowed” 416–20.
(27) République 272; De Republica 189; Commonweale 199 [2.2]. The word, “state,” in this formulation, I argue, is being used in the sense of “form” or “condition”—as in the Ciceronian formulation status reipublicae or even the optimus civitatis status—and not so much in the substantive sense of the modern “nation-state,” which is represented instead by the terms, respublica or république. Hobbes, for example, discusses the distinction between the “the right of summum imperium” [summi imperii ius] and the mere “exercise” [exercitium] in De Cive 1647: 213–14 (13, §1). At 214, Hobbes, following the legal humanist analysis, speaks of summum imperium held and administered either “by one’s own proper right” or “by the right of another” [sive proprio, sive alieno iure]. Rousseau introduces the discussion in Book III of the Social Contract, especially in Ch. 1, which treats “government” as “merely the minister” of the sovereign authority, “an intermediate body established between subjects and sovereigns … charged with the execution of the laws and the maintenance of freedom.” The Social Contract, ed. and trans. Victor Gourevitch (Cambridge: Cambridge University Press, 1997) 82–3. This trajectory is discussed in Loughlin, Foundations of Public Law 59, 76, 80, 108–17, as central to the autonomous category of the droit publique. This distinction is also the central organizing theme of Tuck’s lectures on The Sleeping Sovereign.
(28) République 272; De Republica 289; Commonweale 199 [2.2]. In Book VI, Bodin clarifies that “there bee few or rather no such monarchies indeed.” Commonweale 786 [6.6].
(29) Bodin allows, as a minimum, no less than nine different possible forms of “government,” and likely more. Each of the three basic forms of states (monarchy, aristocracy, and the popular state) can be governed in one of three ways, as Bodin indicates at République 273 [2.2] and 507 [4.1]; Commonweale 200 and 409. Monarchies can be governed in a “royal” or “lawful” [legitime] manner, a “seigneurial” manner, or a “tyrannical” manner. Aristocracies can be governed lawfully, seigneurially, or in a “factious” [factieuse] manner. Popular states can be governed lawfully, seigneurially, or in a “turbulent” manner, which Bodin, citing Cicero, calls “the greatest tyrannie of all.” Cp. Commonweale 199 [2.2], 409 [4.1], 700 [6.4]. But Bodin allows more than just these nine principal forms of government, since in his discussion of “harmonic justice” in Book VI Bodin actually enjoins monarchies to delegate authority by constitutional law so as to “knit together” a “government so compound and mixed” of both aristocratic and popular elements. Commonweale 755 [6.6].
(31) Bodin invokes analogies of property relations in explaining delegated sovereignty in De Republica 80–01 [1.8] and cites especially D.2.1.6, 2.1.6, 41.2.3, in connection with his analysis of the relationship between the sovereign people of the Cnidiens and the Amymones, to whom imperium was entrusted as deposit [depositum].
(32) Commonweale 84 [1.8]; cp. Commonweale 767 [6.6].
(33) République 124; De Republica 80; Commonweale 86 [1.8].
(34) République 123 [1.8]. Bodin thus distances himself from those who did consider the dictator to hold sovereign authority, such as Pomponius’ attribution of summa potestas to the dictator in the Enchiridion (D.22.214.171.124) and Renaissance writers such as Sir Thomas Elyot who, in the Boke Named the Governour, treated the dictator as “sovereign” and in possession of the “pristine authority and majesty of a king.” See Tuck, Sleeping Sovereign Lecture I. Grotius would criticize Bodin on precisely this point at War and Peace 281–3 [1.3.11] suggesting instead that “the dictator, during the whole time of his office, exercised all the acts of civil government, with as much authority as the most absolute King.” However, Pufendorf would later defend Bodin against Grotius’ criticism, at Book VII, Ch. 6, §15 of De Iure Naturae et Gentium. These arguments against Bodin’s position seem to anticipate Carl Schmitt’s arguments against the impossibility of commissarial dictatorship as something distinct from sovereignty. I thank David Dyzenhaus for pointing out this linkage.
(35) De Republica 79 [1.8].
(36) De Republica 80 [1.8].
(37) Bodin makes a fundamental distinction between “commissioners” [commissaires] and “officers” [officiers], with the latter including all magistrates. The notion of “supreme magistrate” or “sovereign magistrate” is discussed at République 451–2 [3.6]. Bodin also gives here the example of Henry, Duke of Anjou, appointed as the Prince de France and Lieutenant General to King Charles IX, an example appearing prominently at République 127 [1.8].
(38) In De Republica 79–80 [1.8], “commission” is translated as curator, which is the Latin term used at De Republica 259 [3.2] for commissaire, and commissarium. It is noteworthy that Bodin indicates that a dictator extraordinarily appointed on simple commission can, nevertheless, discharge specific sovereign functions to be identified later in 1.10, such as “the making of warre” [curatio belli gerendi], “the reforming of the state” [reipub(licae) constituendae], and “the instituting of new officers” [magistratuum creandorum].
(39) République 124; De Republica 80. Commonweale 86 [1.8] has it as a “borrowed power.” The French edition only has a crucial marginal citation to Ulpian at D.1.17.1, which discusses the Prefect of Egypt “lay[ing] down the imperium” [deponit . . . imperium], which was “given to him by law” [lege … ei datum est]. See p. 185, n.129 for Bodin’s comment in the Methodus on Alciato’s worry about Ulpian’s statement to “lay down” authority and office.
(40) De Republica 79 [1.8]. Bodin again makes reference to the Florentine Balia, at De Republica 304–05 [3.3]. On the Balia, see John Najemy, A History of Florence, 1200–1575 (Oxford: Blackwell, 2006) and Nicolai Rubinstein, The Government of Florence under the Medici (Oxford: Oxford University Press, 1997). I thank Mauricio Suchowlansky for this point. It is, as Bodin explains later, an institutional design strategy typical of what he calls seigneurial regimes, states that govern not through law, but by the arbitrary will of the sovereign authority, such as the Turkish Sultan, who entrusts absolute power as an extraordinary commission to the Grand Vizier.
(41) République 126; De Republica 81; Commonweale 87 [1.8].
(42) Commonweale 85, 87–8 [1.8]; République 123, 126–27; De Republica 79, 81–2. In addition to Henry, Duke of Anjou, Francis, Duke of Guise was also made Lieutenant General. The use of the term, legatus, to describe the juridical position of the Lieutenant General is particularly significant, and he does so frequently to indicate one way of understanding the relationship between sovereign and subordinate levels of authority. Bodin’s marginal notation in this part of the text cites, inter alia, D.1.16.3 in the rubric on Roman legates to stress the point that, as agents of proconsuls, legates have no iurisdictio “as of right” [nihil proprium habent, cp. D.126.96.36.199] but only by “express mandate of the proconsul” [a proconsule mandata]. The principle that subordinate authority delegated to magistrates ceases “in the presence of the prince” also appears at Commonweale 170 [1.10], but it was not specific to monarchical states, but a general principle of sovereign authority in all its forms. Thus, at Commonweale 344 [3.6], “in Popular estates, the greatest magistrats as well as the least … laid down their mases and other tokens of honour before the people, and so standing, spake vnto the people sitting: showing, that in their presence they had no power at all to commaund.” But it is also worth pointing out Bodin’s worry about the suspension of magisterial power: “For the suspending of all magistrates in general, is a thing right dangerous, not only in Popular and Aristocratic estates, but even in a Monarchie also.” Commonweale 281.
(43) République 127; De Republica 82; Commonweale 88 [1.8], citing D.1.4.1 with the verb, contulit. Bodin specifies later, following convention, that the lex regia is equivalent to the lex de imperio Vespasiani, and not the lex Hortensia.
(44) Commonweale 88 [1.8]; République 127. Bodin uses the analogy of public power holders to a mere gardien or bail at 439 [3.5]. De Republica 82 shows Bodin to be more deliberate and careful in the use of his terms to describe the princeps as agent of the people, to be called magistratus, aut curatoris, aut legati appellatione … aut procuratoris, all of which correspond to specific roles defined in Roman (and canon) law.
(45) République 127 identifies three modes of agency-creation (1) par commission, (2) par institution, or (3) par delegation, each for either a defined term or in perpetuity. The Latin text at De Republica 82, however, identifies only two modes, (1) curatio and (2) magistratus, each of which can also be either temporally limited [ad breue tempus] or unlimited [in perpetuum].
(46) De Republica 14 [1.3] distinguishes two types of public power: public power that is “legibus soluta belonging to those who have the right of summum imperium” and public power that is “legibus imminuta” belonging to magistrates and other subordinate authorities. Cp. République 19 [1.3].
(47) De Republica 84 [1.8]. This passage in the Latin De Republica explains, at 85, that, even though the princeps Augustus was “exempted from all laws of his country in perpetuity” [omnibus patriae legibus in perpetuo solutus sit], he “nevertheless made himself subordinate to the whole people most often when making a direct appeal to the people” [populo tamen vniuerso … inferiorem se simulans rogationes ad populum saepissime ferebat], just as a Republican magistrate making a similar appeal to popular authority. This passage does not appear in the corresponding page of the French text, République 131.
(48) République 123; De Republica 79; Commonweale 85 [1.8]. There is a marginal citation on this sentence in the French and Latin editions to the Liber Sextus VI 3.4.14.
(49) De Republica 79; Commonweale 85 [1.8]; cp. De Republica 82.
(50) Commonweale 183 [2.1]. In this respect, Bodin may be seen, therefore, as a progenitor of modern legal positivism and one of the first to stress what, in the modern social sciences, has been called the “fact-value distinction.” Bodin’s call for a value-free inquiry into sovereignty was intended largely as a critique of Aristotelian political science which, in his view, improperly combined the normative and the conceptual dimensions of analysis.
(51) Arthur Lupia, “Delegation of Power: Agency Theory,” International Encyclopedia of the Social and Behavioral Sciences 5 (2001): 3375–7; Darren Hawkins, David Lake, Daniel Nielson, Michael Tierney, ed., Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006).
(52) Methodus 171.
(53) République 441; De Republica 305; Commonweale 334 [3.5]. The marginal note in the French and Latin cite two royal decrees of Charles VII and Charles VIII concerning the constitution of the legally autonomous offices of Lieutenans des Baillifs & Seneschaux [Praetorum legatos suo beneficio]. Bodin is almost certainly taking this from Dumoulin who makes the original citation in De Feudis §58.
(54) République 441; De Republica 305–06; Commonweale 334 [3.5]. The French marginalia cites D.1.21.1 as well as 2.1.5 and 2.1.16.
(55) David Parker, “Sovereignty, Absolutism and the Function of the Law in Seventeenth-Century France,” Past and Present 122 (1989): 36–74; Richard Bonney, “Bodin and the Development of the French Monarchy,” Transactions of the Royal Historical Society: Fifth Series 40 (1990): 51.
(56) If the humanist analysis were true, a magistrate such as a praetor or provincial governor would have no right to delegate jurisdiction to a private judge or legate. But that is, as Bodin argues, clearly not how Roman procedure worked.
(58) Bodin, République 441 [3.5], accuses Dumoulin of comparing public magistrates to private-law usagers which, in the Latin De Republica 305, is called a usuarius. Cp. Commonweale 333 [3.5], magistrates as “mere executors and ministers” [to describe the legis actio]. Cp. Methodus 171: executores & administratores.
(59) Alciato 4:39 [Paradoxa 2.6], and also 1:44 on D.1.21.1. Alciato does not seem to account for the conflicting statements of Ulpian and Paul which allow a usufructuary to grant [concedere] usufructuary right to another, such as D.188.8.131.52 and 7.1.63.
(60) Alciato 4:39 [Paradoxa 2.6, §§5–6].
(61) Dumoulin 1:79 [De Feudis, Gloss 5 on Le Fief §57].
(62) Commonweale 334 [3.5]. Gilmore, Argument from Roman Law 104. Bodin’s targeting of Alciato and Dumoulin is continuous with his earlier brief statement on this point in the Methodus, an important piece of evidence to show the trajectory and continuity of thought between these two works.
(63) République 441; De Republica 305; Commonweale 334 [3.5]. This was factually untrue in the French case of bailiffs and seneschals who held appellate jurisdiction in the early modern French judiciary.
(64) République 441; De Republica 305; Commonweale 334 [3.5].
(65) République 441; De Republica 305; Commonweale 334 [3.5]; cp. D.7.1.63.
(66) Commonweale 327 [3.5].
(67) It is not surprising that Bodin would be so deeply interested in the topic of magisterial imperium and iurisdictio in Roman law. Indeed, he devoted an entire treatise, De imperio et iurisdictione, specifically to this topic, almost certainly written during the early years of his intellectual development as a scholar of Roman law at Toulouse. We know this because, at various points in the Methodus, Bodin makes reference to his earlier work on civil law, De imperio, where he says he had discussed at length the debate between Azo and Lothair concerning the magistrate’s imperium in that work. The Iuris Universi Distributio also devotes significant space to matters of legal process and, especially, the function or “duty” of the judge [officium iudicis]. For someone such as Bodin, so deeply committed to elucidating the foundations of modern public law, the dicta on magisterial authority in the Digest were the major points of entry. It is for this reason, then, that Bodin’s earliest writings on the public authority of the state began as commentaries on civil law. See Chapter 5 on the Methodus.
(68) Commonweale 334 [3.5].
(69) Commonweale 327 [3.5].
(70) Commonweale 329 [3.5], 334 [3.5]. République 432 and De Repulica 300 explain that no magistrate in the early Roman Republic had the ius gladii in cives, the power of capital penalty over citizens. Bodin cites, in support of his observation of the early Roman Republican constitution, Books VII and X of Livy, Ab Urbe Condita and Cicero, Pro Rabirio and In Catalinam. As Bodin explains in Commonweale 293 [3.3], all delegations of ancient kings before the invention of law were all by way of commission, where “the prince’s word, becke, and will, serv[ed] instead of all lawes, who both in time of peace and war, by commissions gave out charge to whome they pleased; and againe at their pleasure revoked the same.” Citing Pomponius, Bodin argues, since the period of the Roman Monarchy fell chronologically prior to the XII Tables, early Roman officials were not properly magistrates but commissioners.
(71) Commonweale 330 [3.5]; De Republica 303. The important difference between the legis actio and the formulary procedures, on the one hand, and the cognitio extra ordinem, on the other, was that the latter dispensed with the use of lay judges. The magistrates were directly involved in all aspects of the trial. But it is not clear how much Bodin would have known about the legis actio procedure, considering that Gaius, the major modern source for the details of the procedure, was only rediscovered in the nineteenth century. It is possible that Bodin may have had in mind Pomponius at D.184.108.40.206 which treats the legis actio as any actio legitima, the basis of statute-regulated legal process originally developed under the XII Tables. I thank Clifford Ando for this suggestion.
(72) Methodus 171. See p. 182.
(73) République 441; De Republica 306; Commonweale 334 [3.5]. Visually, Bodin’s point might be represented as follows:
“He to whom iurisdictio is delegated” = Private Judge
Knolles’ translation of this passage does not quite fully capture Bodin’s meaning, which is better expressed in the Latin phrasing in the 1583 and 1586 texts. Bodin was referring to the rubric indicating the two texts in the Digest separating the original jurisdiction of the proconsul or the praetor from the delegated jurisdiction of the legatus or the iudex, as well as the canonist distinction in the rubric, De officio et potestate iudicis delegati, in the Decretales. His point seems to be that, despite the differences between delegates and sub-delegates, jurists have treated them uniformly under the generic and undifferentiated label of “delegate,” as delegates under some sovereign authority.
(74) Commonweale 294; cp. 295 [3.3] and 334 [3.5]. Bodin probably also means the many Commentators, identified in the margin of République 441 and De Republica 306, whom he cites for criticism such as Bartolus, Baldus, Fulgosius, Alexander Imolensis, Paul Castro, Cynus da Pistoia, and Panormitanus. But it was not only jurists who committed this error in the analysis of delegated authority. Humanist historians were also guilty of it, for example Nicholas Grouchy and Carolus Sigonius who, as Bodin put it, failed in “having understood the difference betwixt an office and a commission” because they were “ignorant in the knowledge of matters of law and of state.” Commonweale 283 [3.2]; Methodus 167–8, where he also faults Varro. See also C.J. Smith, The Roman Clan: The Gens from Ancient Ideology to Modern Anthropology 70; William McCuaig, Carlo Sigonio: The Changing World of the Late Renaissance (Princeton: Princeton University Press, 1989) 174–223.
(75) In the Commonweale, Knolles translates this term by the words “deputie” or “lieutenant,” as at Commowneale 279 [3.2].
(76) De Republica 82 [1.8]; cp. Iuris Universi Distributio 38, under the heading of Gratuitum, where Bodin distinguishes between Donatio Pura, & Conditionalis; Iuris Universi Distributio 52 on Alienatio.
(78) De Republica 82 [1.8]: ut alteri omnia iura maiestatis sine conditione donaret, perinde ut si quis pura donatione rei suae dominium ac possessionem tradidisset.
(79) Cp. Commonweale 91 [1.8]; 321 [3.4] on the dangers of the “derogatory” effect of privilege on sovereignty.
(81) If he did, his position would be indistinguishable from, say, Alciato who allows a conditional grant in the same manner as a usufruct, where the dominus retains a bare nuda proprietas over the servient estate.
(82) République 372; De Republica 259; Commonweale 278 [3.2]; cp. Commonweale 283.
(83) De Republica 259 [3.2].
(84) De Republica 262 [3.2]: Dictatura quoque curatio fuit, non ordinaria potestas. He invokes the same example of Aemylius Mamercus, the one-day dictator, cited at République 124. Recall Bodin’s comment at Methodus 174: Dictator qui non proprie magistratum, sed curationem gerebat, which is the only comment in the Methodus that hints at the magisterial office/commission distinction of the République.
(85) Commonweale 283 [3.2]; De Republica 421; Commonweale 286.
(86) Commonweale 289 [3.2].
(87) République 372; De Republica 259 [3.2]. “Officer” is a generic category, of which “magistrate” is a species. The specification is necessary for Bodin since not all “officers” hold imperium, such as a “senator” who has a public advisory and deliberative function, but no imperium, as he explains in 3.1.
(88) République 372; De Republica 259; Commonweale 278 [3.2]. It is important to stress that, for Bodin, not all personal or private acts of a sovereign were necessarily public legislative acts.
(89) Commonweale 280–81 [3.2]. Such legally constituted offices can only be disestablished by a contrary act of formal legislation, and not simply by an arbitrary act of the sovereign.
(90) Commonweale 280 [3.2].
(91) Commonweale 289 [3.2].
(92) Commonweale 311 [3.4], 334 [3.5], and cp. Methodus 173.
(94) Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (Cambridge: Polity, 2014) 25.
(96) République 378; De Republica 263; Commonweale 282 [3.2]. The Latin text, which alone shows a marginal citation to D.2.1.6, formulates the passage as thus: Ut autem planius magistratuum & curatorum disciplina intelligatur, his quidem precario, illos quasi commodato munere fungi putemus: precarium autem semper repetere licet; commodatum non item, sed tempore definito.
(97) Precarium and precaire is translated as “sufferance” in Knolles; Franklin follows this convention. Cp. Iuris Universi Distributio 40, defining precarium as creditum utendi causa domini arbitrio.
(98) De Republica 262 [3.2].
(99) Cp. Gaius 3.137.
(100) Bodin uses the verb, deponere, in the corresponding passage of the Methodus where this argument is developed. He is referring to Ulpian at D.1.17.1, which he cites on multiple occasions in République 1.8. See Chapter 5 on his comment in the Methodus referring to Alciato’s worry about Ulpian’s notion of the “laying down” of an office.
(101) Bodin argues that, even though sovereigns may be exempt from their own laws, they are nevertheless bound by the laws of nature and of nations. One of those higher legal norms which are binding even on sovereigns is the general principle that contracts are binding: “The soveraigne prince is bound unto the contracts by hime made, bee it with his subiect, or with a straunger.” The binding force of contracts is what prevents the sovereign from treating offices and officers arbitrarily: “For if a prince have once bestowed an honour or an office upon a man, it is deemed, that he may not without iust cause take it againe away from him” Commonweale 106 [1.8].
(102) This is my translation based on the Latin text of De Republica 79 [1.8], which most clearly shows the centrality of Roman law in this analysis. Neither the French text nor Knolles’ English text properly convey the legal significance and technical meaning of the argument here. The citation to D.220.127.116.11, which is in the marginalia of the French and Latin texts by its incipit, Qui pignori, explains why the sovereign authority must be in the position not only of a dominus [Fr. seigneur], but also a possessor [Fr. possesseur] over any imperium or iurisdictio that is delegated to a subordinate party. Depositum imperium occurs again at De Republica 81. Cp. Iuris Universi Distributio 40, which treats obligations of commodatum, depositum, pignus, and precarium under the general heading of creditum.
(103) Note also Bodin’s stipulative definition of “law” (loi, lex) to differentiate from “right” (droit, ius), but which in English, can also be “law.” Cp. Iuris Universi Distributio 14 [Ius Quid Sit], 16 [Lex Quid]. The essence of law, as in the Methodus, is command. But Bodin specifies here that a law imposes a general obligation—all subjects, without differentiation, are bound to comply with the rule created through Bodinian legislation. Not all commands of a public authority are general in scope, such as magisterial edicts (which are legally binding, but still can be overridden in theory by sovereign legislation), and acts which impose a non-general obligation only on some subjects (which are not properly “laws” but, as Bodin calls it, “privileges”).
(104) This is why it is so central for Bodin to distinguish between “law” and “contract.” Both are obligation-creating devices. But only “contracts” create obligations that bind sovereigns in ways that laws do not. République 135; De Republica 87; Commonweale 93 [1.8]. The marginalia of the French and Latin text cites C.1.14.5 and, most notably, D.50.17.35, which establishes the principle that an obligation is to be dissolved [dissolvitur] by the same means through which it is contracted [colligatum est]. The Latin text alone has a further citation to D.2.14.58 which illustrates the principle in various sorts of bilateral Roman consensual contracts such as the emptio-venditio and the locatio-conductio.
(105) English translations have translated “seigneurial” variously as “lordly” (Knolles) and “despotic” (Tooley, Franklin). I prefer, however, to keep the French to stress the feudal-proprietary aspect of seigneurial rule whose agents are like agents of private law.
(106) Commonweale 518 [4.6]. This, as we shall see, is precisely what Bodin thought happened to the Roman Republic: The populus Romanus, beginning with the Gracchi, began to exercise its sovereignty in a more direct and seigneurial manner, directly intervening in high matters of state by the extraordinary appointment of popular “commissions”—especially Sulla, Pompey, Caesar—rather than by ordinary lawful magistrates.
(107) Commonweale 517 [4.6].
(108) Commonweale 469 [4.3].
(109) République 332; De Republica 229; Commonweale 244 [2.7]. Both conditions of rule must hold.
(110) République 143, 255; De Republica 92; Commonweale 99 [1.8], 185 [2.1].
(111) Commonweale 99; De Republica 92 [1.8] renders the relevant terms as populus universus and singuli.
(112) Commonweale 99 [1.8]. The marginalia in the corresponding passage at République 143 and De Republica 92 again cites D.50.17.35, establishing the principle of symmetry that an obligation is to be dissolved [dissolvitur] by the same means through which it is contracted [colligatum est].
(113) Commonweale 703–4 [6.4].
(114) Commonweale 700 [6.4], cp. 200 [2.2], where Bodin, citing Cicero calls it “the rage of the furious and turbulent people.”
(115) Commonweale 703 [6.4]. Bodin’s most important classical example illustrating this danger, at Commonweale 706 [6.4], was the rise of Pericles in classical Athens—as he put it, with a citation to Thucydides, the “very monarch” of Athens.
(116) Commonweale 250, [2.7], 701 [6.4]. Bodin’s argument against democratic egalitarianism is framed here as a sort of “leveling-down” objection.
(117) Commonweale 708 [6.4]. Bodin’s criticism of popular sovereignty in the language of justice, for enabling public authority to be placed in unworthy hands, draws heavily on Platonic sources. Cp. Method 268.
(118) Commonweale 424 [4.1], 409 [4.1], 199 [2.2].
(119) Commonweale 701 [6.4].
(120) On music, Commonweale 456 [4.2], 530–31 [4.7]. On rhetoric, Commonweale 294 [3.3] and 706 [6.4], where Bodin acknowledges the power of “orators and pleaders” in the Athens of Demonsthenes. Bodin’s populism is to be distinguished from the “ferocious populism” of Machiavelli, as in John McCormick, “Machiavellian Democracy: Controlling Elites with Ferocious Populism,” American Political Science Review 95 (2001): 297–313.
(121) Commonweale 517.
(122) Holmes, “Precommitment and the Paradox of Democracy.”
(123) Commonweale 518 [4.6].
(124) Commonweale 485–86 [4.4].
(125) Commonweale 497 [4.5].
(126) Commonweale 420–1 [4.1].
(127) This was before the lex de imperio Vespasiani, which Bodin, following the scholarship surrounding Rienzo’s discovery, treated as the lex regia transferring sovereignty from the Roman populus to the Roman princeps. See Chapter 1.
(128) Tuck, “Hobbes and Democracy” 181–82. Commonweale 244 [2.7] on the curiae of Rome.
(129) Commonweale 785–76 [6.6] introduces Bodin’s interpretation of Rome as a popular state coupled with a “harmonic government” of aristocratic and popular elements, possibly as a concession to mixed-constitution theorists of Rome. At 249, Bodin clarifies, in his constitutional history of Rome, that the lex Canuleia [permitting intermarriage between patricians and plebs] from 445 B.C.E. marks an important transformation in the evolution of Rome’s aristocratic government to the more complex structure of the Late Republic.
(130) Commonweale 411 [4.1], 518 [4.6].
(131) Commonweale 517 [4.6].
(132) Technically, Pompey was never a dictator—but Bodin observes that he was granted absolute power by commission, since he was, by an extraordinary act, made consul without a colleague.
(133) Pomponius makes a brief reference to this decline in effective governance by the senate in explaining the rise of the Principate at D.18.104.22.168.
(134) Bodin applies the same analysis to Florence where, he argues, the popular conferral of extraordinary power on Soderini by commission was a proximate cause of the fall of the Republic.