The
question of sovereignty reappeared at the end of the Middle
Ages, when many began to ask not only what is the best possible
form of government, or what should be the purpose of the
authority held by political power, but what is the political
bond that unites a people to its government? That is to
say, how ought we to define, within a political community,
the connection between those who govern and those who are
governed?
This is the question that Jean Bodin attempted to address
in his famous book, La République (The Commonwealth), which
appeared in 1576. Bodin did not invent sovereignty, but
he was the first to make a conceptual analysis and to propose
a systematic formulation. The starting point for this exercise
was not an observation of the facts but a two-fold aspiration:
first, Bodin’s desire for a restoration of the social order,
which had been turned upside down by the religious wars,
and second, the demand, on the part of the kings of France,
for emancipation from every form of allegiance to the emperor
and the pope. Bodin’s treatment of sovereignty would quite
naturally constitute the ideology of the territorial kingdoms,
then in their infancy, which sought to emancipate themselves
from the tutelage of the Holy Roman Empire, while consolidating
the transformation of power that resulted from the king’s
success in dominating his feudal nobility.
Bodin begins by recalling, quite correctly, that sovereignty
(or majestas), which he makes the cornerstone of his entire
system, is an attribute of the power to command, which itself
constitutes one of the givens of politics. Like most authors
of his time, he also declares that a government is only
strong if it is legitimate, and he underscores his conviction
that a government action must conform to a certain number
of values determined by justice and reason. He is well aware,
however, that such considerations are not enough to account
for the notion of sovereign power. For that reason, he declares
that the source of power derives from the law. The capacity
for making and breaking the laws belongs to the sovereign.
That is what constitutes the hallmark of sovereignty: The
power to legislate and the power to govern are identical.
The conclusion that Bodin deduces from this is radical:
Since he cannot be subjected to the decisions that he makes
or to the decrees he issues, the prince is necessarily above
the law.
This is the formula that had appeared among Roman legal
experts: princeps solutus est legibus. “Those who are sovereign,”
writes Bodin, “must not be in any way subject to the commands
of others. . . . That is why the law says that the prince
is absolved from the power of the laws. . . . The laws of
the prince depend only on his pure free will.” The prince,
therefore, possesses the sovereign power to impose laws
that are not binding on himself, and, to exercise this power,
he has no need of the consent of his subjects—which means
that sovereignty is totally independent of the subjects
on which it imposes the law. Cardinal Richelieu would later
say, in the same spirit, that “the prince is master of legal
formalities.”
By this reason of its legislative power, continues Bodin,
the supreme authority is and can only be unique and absolute,
whence his definition of sovereignty as the “absolute and
perpetual power of a commonwealth”—that is to say, as an
unlimited power in the order of human affairs. The absolute
power of sovereignty lies in the fact that the sovereign
is not subject to his own laws but issues and abrogates
them as he likes. On the other hand, the ability to make
laws requires that sovereignty be absolute, because the
legislative power cannot be shared. All the rest of the
sovereign’s political prerogatives stem from this initial
affirmation. Bodin deduces from this that the fundamental
characteristic of sovereignty is that it confers on the
prince, who is subject to no rule beyond his own will, the
power not to be bound or dependent on anyone, his power
being neither delegated, nor temporary, nor responsible
to anyone whatsoever. In fact, if he were to set about depending
on someone other than himself, whether domestic or foreign,
he would no longer have the power to legislate. He would
no longer be sovereign.
Boudin’s sovereignty is therefore completely exclusive:
In assigning to the king the role of unique legislator,
it confers on the state an unlimited power to act. As a
result, a sovereign state is defined as a state whose ruler
depends on no one other than himself. This implies that
the nation is constituted as a state, and even that it is
identical with the state. For Bodin, a country may exist
by reason of its history, its culture, its identity, or
its customs, but it does not exist politically except to
the extent that it is constituted as a sovereign state.
Sovereignty is then the absolute power that makes a commonwealth
a political entity, itself unique and absolute. The state
must be one and indivisible, since it is nothing other than
an expression of the legislative monopoly held by the sovereign.
Local autonomies can only be admitted to the extent that
they do not constrain the prince’s authority. In fact, these
autonomies will never cease to be ever more constrained.
The state thus becomes a monad, while the prince finds himself
divided from the people—which to say, placed into an isolation
that borders on solipsism.
The significance of this new theory is evident. On the one
hand, it dissociates civil society and political society,
a dissociation that political thought will make great use
of at the beginning of the 18th century. On the other hand,
it lays the foundation of the modern nation-state, which
is characterized by the indivisible nature of its absolute
power. With Bodin, political theory enters, with both feet,
into modernity.
According to Bodin, sovereignty is above all inseparable
from the idea of a political society; it abolishes particular
connections and loyalties and sets itself up on the ruins
of concrete communities. Implicitly, the social bond has
already turned into a governmental contract, in which only
individuals are involved, eliminating any mediation between
members of society and the power of government. This severing
of the connections between prepolitical communities and
the political unit will be brought about, first, by absolute
monarchy, and then by the nation-state, which defines itself
above all by its homogeneous character, whether that homogeneity
is natural (that is, cultural or ethnic) or acquired (by
relegating all collective differences to the sphere of private
life).
It is not difficult to see the religious underpinnings of
this doctrine: The way in which Bodin conceives of political
power is only a profane transposition of the absolutist
way in which God exercises His own power—and the way in
which the pope rules over Christianity. This is true even
though he rejects the medieval conception of power as a
simple delegation of God’s authority. With Bodin, the prince
is no longer content to hold power by “divine right.” By
giving himself the power to make and unmake laws, he is
acting in the manner of God. He constitutes, by himself,
a separate whole, which dominates the social whole as God
dominates the cosmos. The same goes for the absolute rectitude
of the sovereign, which simply translates into the political
realm the attributes of the Cartesian god, who can do all
that he wills but cannot will that which is evil.
From sovereignty, it is a small, surreptitious step to the
notion of infallibility. In other words, Bodin desacralizes
sovereignty by taking it away from God, but he resacralizes
it immediately in a profane form: He leaves the monopolistic
and absolute sovereignty of God in order to end up with
the monopolistic and absolute power of the state. All modernity,
then in its infancy, resides in this ambiguity: On the one
hand, political power is becoming secular; on the other,
the sovereign—henceforth identical with the state—is becoming
a person endowed with an almost divine political power.
This is a perfect illustration of Carl Schmitt’s thesis
that “all the pregnant concepts of the modern theory of
the state are theological concepts that have been secularized.”
Bodin’s theory of sovereignty, however, does not imply any
particular type of regime. He prefers monarchy, because
power is naturally more concentrated in a monarchy, but
he understands it as equally compatible with the power of
an aristocracy or with democracy, though the risk of dividing
power is greater in a democracy.
There is something paradoxical in this modern formulation
of sovereignty. Bodin takes pains to distinguish tyrannical
power from sovereign power but only by appealing to ideas
that, objectively speaking, constitute a limitation on sovereignty,
even though he defines it as indivisible and absolute. This
limitation might reside in the prince’s need to respect
certain natural and divine laws. It might also reside in
the ultimate purpose of power, which is to serve the common
good without injuring the rights of the members of society;
it might even reside in the criteria for its legitimate
exercise. This entirely theoretical bulwark against tyranny
will quickly fail, by reason of the very dynamic of absolutism.
The conception of sovereignty that was characteristic of
absolute monarchy was preserved in its entirety by the French
Revolution, which confined itself to ascribing such power
to the nation. From this comes the difficulty that the republic
came up against when it tried to reconcile the first two
articles of the Declaration of the Rights of Men, which
declare the primacy of the individual’s universal rights,
with the third article, which makes the nation the sole
authority to judge its own competence.
One of the merits of a recent book by Ladan Boroumand is
to have established, on the basis of a careful examination
of texts, not only the continuity of the idea of absolute
sovereignty from the ancien régime to the Revolution but
that the revolutionary affirmation of the primacy of national
sovereignty does not date from 1792 or 1793—during the rise
to power of the Jacobin Party—but to the very beginning
of the movement. The key moment is reached when the Third
Estate makes its unilateral decision, in May 1789, to undertake
the process of verifying the deputies’ credentials, a decision
that launches the transformation of the Estates-General
into the National Assembly and endows the deputies with
political sovereignty.
The motion proffered by the Abbé de Siéyès, which invites
the communes to proclaim themselves a “National Assembly,”
was opposed by Mirabeau’s motion, which puts forward the
alternative name, “Assembly of the People’s Representatives.”
The rivalry between the two motions uncovers a revealing
difficulty in the attempt to define the nation. At the end
of the day, Siéyès’ motion will carry, while Mirabeau’s
will be rejected as injurious to the nation’s right. For
Siéyès, however, the nation is “a living body of associates
under a common law,” a body that is rigorously homogeneous
in its essence and detached from every prepolitical purpose.
It is to this body, and to it alone, that sovereignty must
be granted. “The nation exists before all, it is the origin
of all. Its will is always legal, it is a law unto itself.”
On June 17, 1789, Siéyès gets the name “National Assembly’
adopted, with the slogan that the representation of the
nation can only be “one and indivisible.” Since the General
Will is regarded as taking shape only within the legislative
body, national representation is confused with the nation.
From that instant, sovereignty becomes the property of the
nation, and the sovereignty transferred to the Assembly
is to be exercised from on high. Henceforth, the nation
corresponds to the area of collective sovereignty that is
incarnated in the National Assembly. Revolutionary sovereignty,
therefore, does not come originally from the electoral body
but represents a simple transfer from royal power.
The Constitution of 1791 goes still further, adding the
qualification that “sovereignty is indivisible, inalienable,
and indefeasible.” However, in August 1791, in the course
of the debate that preceded the final drafting of this article,
a first draft submitted to the Assembly still attributed
to sovereignty only the quality of indivisibility. Inalienability
was added at the request of Robespierre. On September 7,
Siéyès declares: “France must not be an assembly of little
nations, which would govern themselves separately as democracies;
it is not a collection of states; it is a unique whole,
composed of integrating parts.” By extension, on September
25, 1792, the French Republic is itself proclaimed “one
and indivisible.” Thus, intermediate bodies and basic forms
of community life are denied any legitimacy of their own.
A year later, the Jacobin denunciation of the “Federalist
peril” will repeat this argument. Acting on the same principle,
the revolutionaries will try to make regional dialects disappear,
and then they will demand the suppression of the ancient
provinces and their replacement with geometrically equal
departments.
Parallel to this, the concept of the people receives a purely
abstract definition, one that corresponds to the idea of
the nation whose priority is immediately declared. This
is the necessary condition for the people, in its turn,
to be declared “sovereign.” “If as an objective reality,”
writes Ladan Boroumand,
the
people could not be admitted into the sphere of the nation’s
sovereignty, the metaphysical entity par excellence, its
metamorphosis into an ideal being gives it the right to
participate in the logic of national sovereignty without
endangering the transcendent existence of the nation,
which is incarnate in [the political process of] representation.
Representation,
however, is itself conceived as a principle of the unity
and “indivisibility” of the people, thereby excluding the
idea of a people formed out of particular communities and
distinct entities. The idea of the nation, put forth as
a unitary and transcendent being whose unity and indivisibility
are necessarily independent of any external principle, ends
up restoring the concept of the people to the point that
the new idea replaces the old, inaugurating a tradition
that French law has never ceased to perpetuate. Finally,
the revolutionary conception of sovereignty makes nationality
and citizenship synonymous: From then on, there will no
longer be a French national who is not a French citizen
(except when a citizen is stripped of civil rights), nor
a citizen who is not a national. The people is all the more
indivisible and unitary in that it has become a simple abstraction.
This is why France, still today, is not a federal state
and cannot recognize the existence of a Corsican or Breton
people.
Thus, under the Revolution as under the ancien régime, the
same conception of sovereignty as the “absolute and eternal
power” of a republic is the source of all the rights and
duties of the citizen. The sovereignty of the Jacobins allows
no more restrictions than the sovereignty of Bodin. The
revolutionaries denounce federalism in the same terms that
absolute monarchy employed, when, for example, it reproached
the Protestants for wanting to cantonize France on the model
of Switzerland. They hurl anathemas and struggle against
local particularisms in the same way that royal power tried
by every means to reduce the autonomy of the feudal nobility.
To legitimate revolutionary justice, they advance the same
arguments that Cardinal Richelieu used in defending the
discretionary power of the ruler. With the Revolution, national
sovereignty is in opposition to royal absolutism, not because
it rejects absolutism per se, but because it is transferring
the absolute prerogatives of the king to the nation.
“Certainly,” as Mona Ozouf has written,
the
men of the Revolution appear to break with the old world,
by inventing a society of free and equal individuals.
In reality, they have inherited from absolutism a concept
that is much older and more constraining: the idea of
national sovereignty, a transcendent mythic body that
is in command of individuals. And this idea very quickly
recovers its efficacy, and the absolute sovereignty of
the nation comes to fill the place left vacant by the
absolute sovereignty of the king. . . . The Terror itself,
far from being a desperate measure dreamed up by a Republic
on the point of collapse, follows logically from what
they have borrowed from the Ancien Régime.
If,
by all the evidence, it violates the natural rights of individuals,
the Terror does not at all violate the rights of the nation,
which, on the contrary, it intends to guarantee and preserve.
“The similarities between absolutism and Jacobinism,” writes
Boroumand, “are easily explained. If the political reflexes
and expedients are, before and after 1789, the same, it
is from that fact that they are informed by the same principle:
the sovereignty of the nation.”
Thus, as Henri Mendras has observed,
What
was a claim in the 16th century, became in France an absolute
doctrine, an intangible principle for the monarchy during
two centuries, then for the constitutions since 1791.
This principle was a juridical fiction, an abstraction
that was incarnate in the king as absolute prince. With
the king gone, the Republic picked up the baton.