Olivia Lee
T&I Mixed Constitutions
Nikota 11AM
Paper 3: Sovereignty
November 16, 2018
Definition of sovereignty
Origin of sovereignty (god vs social contract)
I believe that sovereignty comes from the people of a country. However, Bodin, Grotius, and Hobbes have slightly different opinions. Bodin lived during the age of the Reformation in Europe, and was most likely influenced by the counter reformation by the Catholics, being a devout Catholic himself. The debates about how Christianity should be practiced pushed the common people to have greater faith in God and revived many aspects of medieval Catholicism.
believed that sovereignty was bestowed upon someone chosen by God, and consequently, that sovereign had divine right to rule (Bodin. On sovereignty. I. 8. 389).
Definition of a sovereign
Bodin: similar to the origin of sovereignty, he believes that the sovereign must be limited by the laws of nature, which he views to be Christian laws.
Rights of a sovereign
Natural law
Divisible?
State of war/why we need a sovereign (Hobbes vs Pufendorf)
Mixed constitution possible?
According to Bodin, a mixed constitution is not possible as there is no sovereign power. He believes that the sovereign should have absolute power, through the responsibility and right to give laws (Bodin. On sovereignty. I. 10. 491). Furthermore, he insists that the sovereign prince is exempt from following the law (Bodin. On sovereignty. I. 8. 459). Bodin explains that, consequently, it is “impossible and contradictory” for a mixed constitution to exist in accordance with sovereignty. (Bodin. On sovereignty. II. I. 547). Not only is sovereignty indivisible and cannot be split among the monarchical, aristocratic, and democratic branches of government, but also the prerogatives of sovereignty will be violated (Bodin. On sovereignty. II. I. 547). For example, Bodin questions how the sovereign is able to make laws and hold his subjects to them if his ‘subjects’ also have a role in the lawmaking process (ibid.). However, the ancient theorists hold completely contrasting opinions, believing the mixed constitution to be the most functional and efficient form of government. For example, while Cicero also believes that a legal agreement must exist, like Hobbes’ and Grotius’ social contract (Cic. Rep. 3. 45), unlike all the modern theorists, he believes that a government should have a balanced mix of monarchy, aristocracy, and democracy in order to avoid absolute power.
Similarly, I do not completely agree with Bodin and the other modern theorists’ qualification for a commonwealth. The modern definition of a commonwealth is “a nation, state, or other political unit [that] is founded on law and united by compact or tacit agreement of the people for the common good” (Merriam-Webster). Bodin argues that a commonwealth is characterized by sovereignty, and that without sovereignty a nation can no longer be called a commonwealth (Bodin. On sovereignty. 1. 8. 345). Hobbes’s characterization of a commonwealth comes closer to the modern one; he defines a commonwealth as a nation where the people submit their wills to a ruler in a social contract, and then the ruler becomes the sovereign of a commonwealth (Hobbes. Leviathan. XVII. 87). I do not agree with them in that I do not believe a commonwealth requires a sovereign or sovereign power to exist. However, I do believe that there should be a social contract between the ruler and his subjects. Like Hobbes, I believe that the ruler has a duty in maintaining the covenant and cannot breach it, however, while he states that the subjects cannot breach the contract because they have signed over their rights, I believe that people of a commonwealth should always have their own rights (Hobbes. Leviathan. XVII. 89). Furthermore, this violates Bodin’s definition of sovereignty because now the sovereign’s power is “subject to obligations and conditions,” meaning his power is no longer absolute (Bodin. On sovereignty. 1. 8. 354). Therefore, I do not accept Bodin’s definition of a commonwealth and consequently, his belief that sovereignty in necessary in nations.
While I do agree with Bodin’s theory that sovereignty cannot exist in a mixed constitution, I also believe that the entire success of a mixed constitution lies in the fact that it does not have sovereignty.
This power is perpetual (Bodin. On sovereignty. 1. 8).
Dictator was neither a prince not a sovereign magistrate, only held commission (Bodin. On sovereignty. 1. 8).
Grotius says something similar
He is absolutely sovereign who recognizes nothing, after God, that is greater than himself (Bodin. On sovereignty. 1. 8).
And Marcus Aurelius speaking of subordinate magistrates, said, that they were under the control of the sovereign: but that the sovereign was amenable to God (Grotius 3.8)
“They do not have sovereignty, since they are nothing but trustees of a power that was confided to them for a definite period of time” (Bodin. On sovereignty. 1. 8).
It must either be by tacit consent or by force. If by force it is called a tyranny, but it a magistrate prolongs sovereign power by tacit consent, I say that he is not a sovereign prince… he has only a precarious commision (Bodin. On sovereignty. 1. 8).
The Island at the Center of the World
People are sovereign in the US
Sovereign (legitimacy) vs the government (practical day to day)!!!!!!
Hobbes doesn’t believe in the “nation” like Grotius
Differences in social contract theory
Bodin: sovereignty comes from God; Hobbes: comes from the people and below; Grotius: comes from the nation (closest to modern, UN: right to self-determination)
“Ius gentium” starting to change – Grotius: international law
Bodin: natural law is only law that sovereign needs to obey (Christian law)
Grotius
Nations (Dutch… language, culture, etc) justify a rebellion against Spain
Nations make social contract with sovereign (mostly monarchy)
Sovereign bound by natural law
Can’t revolt (Bodin)
Only government can declare war
Beginnings of internal war (declarations of war)
Some nations dominate other nations
If the people give their sovereignty to a king, that’s on them, dictator for the time being was sovereign, full transfer of sovereignty; Bodin: dictator was not sovereign, just using the power of the people, said Rome was a democracy (usufructuary right); Hobbes: any limited, not sovereign
P 52, section 7: definition of power called sovereign, very similar to Bodin. Bound by national law
P 58 some people (bodin) say hereditary monarchy alone sovereign, if you elect a king the people are sovereign, but Grotius says not just title, but power (what you can do) in elected kingship it is entire transfer of power
Purpose of the state/sovereign
Natural law; what they are restricted by
Bodin: time, function, sovereign not required to follow own rules, just natural law
Hobbes: sovereign only needs to follow natural law
Grotius: no limited, dictator had full sovereignty
Revolt, can you do it/ resist
No for all of them
Individual freedom?
Use ancient sources!!!!!!!!!