“Office Is a Thing Borrowed”

The Government of the State, I: “Seigneurial Government”

Bodin boastfully claimed credit, as he so often did on other matters, for being the first to recognize the distinction between “the state” and “the government of the state.” ¹³ “Government,” as he explained, had nothing to do with the presence or absence of sovereignty—all states, by his definition, had a sovereign of some form. Rather, the central matter of government—indeed, the heart of what he understood to be political or “civil” science—concerned the manner by which sovereignty was exercised over the state. In this respect, Bodin identified a broad range of possibilities, which he classified under one of two principal forms.

One form of government was what Bodin called “seigneurial.” ¹⁴ It was, as Bodin defined it, government “where the [sovereign] is become lord [Fr. seigneur, L. dominus] of the goods and persons of his subjects, by law of arms and lawful war, governing them as the master [Fr. le pere de famille, L. paterfamilias] of a family doth his slaves.” ¹⁵ The central idea that Bodin tried to isolate and highlight by this category was what might be called a feudal-proprietary concept of rule. ¹⁶ This was, briefly, the idea that the sovereign ruler of a state was also its owner [Fr. seigneur, L. dominus] and, therefore, was legally entitled to govern the state just as if it were an object of private property held in patrimonio.

Bodin’s notion of seigneurial government shows obvious traces of Aristotelian ideas of domestic power within the household influential in early modern models of civil authority, but, in the context of Bodin’s broader theory of the state, the seigneurial concept was chiefly designed to magnify background feudal notions of kingship prevalent in medieval and early modern legal thought, which located the ruler’s title to govern in virtue of his jural status as a conquering feudal warlord over his realm. According to this concept of seigneurial rule, sovereign right of rulership was indistinct from proprietary right of ownership; one necessarily entailed and contained each other. As Bodin described seigneurial rulership, it is the civil condition where “he who holds sovereignty is also the owner of all things in the state” [is qui imperium habet, rerum omnium dominus est], a point underscored linguistically by the dual function of words in the juridical vocabulary, such as seigneurie and dominium in Bodin’s appropriation of feudal thought, which commingled together concepts of public rulership with private ownership. ¹⁷

What were the constitutional implications of this seigneurial concept of government on Bodin’s analysis? It implied, first of all, the potentially radical doctrine that a princely seigneur may treat the crown demesne of the state—that is, the lands and associated jurisdictional rights attached to the crown—as part of his private patrimony, subject to ordinary legal rules of inheritance, succession, seisin, and sale, a doctrine that later jurists such as Grotius, Pufendorf, and Vattel would call patrimonial kingship. What made this patrimonial doctrine so radical was its complete reversal of the conventional dicta concerning the limited scope of princely rights crafted in later medieval jurisprudence. Indeed, as countless scholars of medieval legal thought have shown, the conventional dicta explicitly denied that princely dominium extended over the demesne. ¹⁸ Rejecting the seigneurial model of the dominus, the princely ruler here was understood instead as approximating the lesser role of a procurator or tutor over the res publica—even as a maritus reipublicae, as the Neapolitan jurist, Lucas De Penna, once put it—as a mere agent with limited rights and powers appointed to “administer” the principal’s estate entrusted to his care and to act, in loco domini, on behalf of the absent or incapacitated principal. ¹⁹ Like a legal procurator or tutor, a prince may likewise have had rights of use in the demesne, but no rights of abuse, and this was precisely because he had no right of proprietary dominium, as the conventional dicta required.

To suggest, then, as some early modern jurists proposed, that the prince might have dominium over the whole state was understood to be quite a radical and dangerous proposition, and it prompted legists of the sixteenth century explicitly to denounce it. ²⁰ One was René Choppin, who had written an influential treatise investigating the jural status of the demesne in De Domanio Franciae, where he declared that “kings are not so much owners [domini], as they are curators of the state” [curatores reipublicae]. ²¹ So too did the Huguenot Monarchomach legists such as François Hotman and Philippe Du Plessis Mornay, who were, ideologically, poles apart from Bodin, deploy the same strategy of argument in their treatment of the demesne. ²²

But most remarkably, Bodin also adopted this explicitly anti-seigneurial doctrine in the République where, in following the Civilian analysis, asserted that “kings and other great princes . . . have not the proprietie of the publike demaines,” and that “propertie of the crowne lands [demesne] is not the princes,” but instead, “belong[s] unto the commonweale.” ²³ Following the earlier Civilian analysis, Bodin also observed that just as a tutor or “husband may well use, but not abuse the fruits of a public dowry [like a usufruct]. . . . Neither is it lawful for sovereign princes to abuse the fruits and revenues of the crown lands.” ²⁴ The implication is that the sovereign prince cannot properly be a dominus or seigneur; there are, as the fundamental law governing kingship required, some things that were set beyond the scope of princely ownership.

To be sure, the political implications of the seigneurial theory were not limited to the juridical analysis of the demesne. Indeed, the seigneurial theory of government put the whole state—and not simply the demesne—in a position of absolute subjection, and this was because government policy was fully dependent upon the princely will or—as Bodin phrased it in the Latin De Republica of 1586—the arbitrium principis.

One important result of this doctrine was that there could be no independent right of private property in a seigneurial regime. Since the ruling sovereign was the seigneur or dominus of the whole state, everything belonged in principle to the prince, without exception, a principle traditionally buttressed by medieval constructions of the Romanist maxim in Justinian’s Code that “all things are thought to belong to the Emperor.” ²⁵ To be sure, the subjects under a seigneurial regime might have limited possessory and usufructuary rights in their holdings, as tenants upon the sovereign’s state. But, as Bodin would put it, such tenure was but a mere precarious tenure. Whatever goods or chattels a subject held, in fact, really belonged, by right, to the princely seigneur who permitted the subject to make use of it, “so long as it shall please” him. ²⁶ In this way, then, the material well-being of the subject in a seigneurial regime was fully dependent upon the sovereign’s permissive will—literally, the sovereign’s “benevolence.” And it is precisely for this reason that Bodin, not unlike early modern “neo-Roman” theorists of dependence recovered by Quentin Skinner, unhesitatingly called subjects of such seigneurial rulers “slaves” who are accustomed to “adore and feare their soveraigne prince, as a god come downe from heaven, accounting his commaunds as the lawes of nature it selfe. ²⁷ ”

For Bodin, then, seigneurial government was nothing more than simply government by the sovereign’s arbitrary will. It was the mode of government found in the earliest primitive states acquired by right of conquest, such as the regime founded by the mythical biblical hunter, Nimrod, the first seigneurial monarch, whose subjects were no better than mere slaves under the absolute arbitrary will of their Assyrian seigneur. ²⁸ So too were the barbarian feudal kingdoms established by invasion and conquest of Roman territories by Germanic warrior-kings, including even France under its early Frankish Merovingian kings.

The seigneurial model gave the seigneurial sovereign direct control over the powers of government, to be exercised according to his private will. To be sure, this did not mean that the ruler in a seigneurial regime had to be directly involved in governing at all times. Indeed, Bodin recognized that, even in a seigneurial monarchy, the ruling prince may, for practical reasons, delegate powers through the appointment of ministers or judges to govern in their place, such as in the early itinerant courts of Parlement, which, as Bodin observed, were convened so long as the king allowed them to sit in judgment. The critical point, however, was that such delegation of powers in a seigneurial government was never permanent, but merely a temporary arrangement. For Bodin, no person serving a seigneurial ruler could rightfully claim to hold power as a secure and permanent grant, let alone as private property. Since such delegations were always temporary and by extraordinary concessive grant, the ruling prince could revoke and “disseise” his ministers or judges of their powers and titles at will, just as a private dominus may similarly “disseise” a precarious tenant in recovering property.

Above all, what this entire analysis of primitive seigneurial government highlighted was the notable absence of law. As Bodin put it, “For right certaine it is, the first Commonweales were by soveraigne power governed without law, the princes word, becke, and will [arbitrium], serving instead of all lawes.” ²⁹ Modern states, by contrast, were remarkable, for just how far they departed from the centrality of arbitrium in the seigneurial model. Indeed, among modern states in Bodin’s time, only the Turks and Muscovites and the kingdoms of Asia and Ethiopia were seen to have governed seigneurially. ³⁰ All other states, Bodin argued, had evolved and developed more advanced methods of government and administration that tempered government by separating the exercise of sovereignty and functions of government from the sovereign’s arbitrary will and, thus, releasing subjects from their slavish dependence upon the permissive grace of their princely seigneur. What made this transformation possible, according to Bodin, was the invention of law and, with it, of lawful government.

The Government of the State, II: “Lawful Government”

Just as a state may be governed “seigneurially,” where the seigneur discharges sovereignty purely by an act of arbitrary will [arbitrio], so might a state be governed “lawfully,” when sovereignty is exercised according to established law [lege]. What Bodin called “lawful government,” thus, represented the major point of contrast against the more primitive seigneurial model of direct personal or “seigneurial” rulership of the ancient kings and despotic rulers of the East. If seigneurial government was a feudal-proprietary concept of rule, where the ruling sovereign was nothing more than a seigneur or dominus over his state, then lawful government was just the opposite. It was a regime which explicitly rejected the controversial suggestion that the sovereign may treat his state as his property and his subjects as his slaves.

What made lawful government possible on this analysis was the use of law, rather than one’s arbitrary will, in discharging the functions and powers of government. Law was the indispensable device necessary to neutralize and incapacitate the sovereign’s private will from overpowering the state. Bodin, of course, had famously defined law in one of the more well-known passages of the République, in anticipation of the so-called “command theories” of Hobbes, Bentham, and Austin: “Law is nothing els but the commaundement of a soveraigne.” ³¹ And in the final chapter of Book I, Bodin established that the right of legislation was the first and chief mark of sovereignty; the ability to make and unmake law was what separated the sovereign from the subject, as placed beyond the scope of legal accountability or obligation. Such legislative omni-competence was precisely what made possible the existence of the state as an independent political and legal order.

Bodin’s concept of law, however, was more complex than the sort of crude voluntarism often attributed to him, in several ways. ³² Bodin acknowledged that, while the sovereign authority of a state was technically legibus solutus, such juridical immunity applied only to certain categories of human law actionable within the boundaries of the state. So, for example, sovereigns always remained bound by divine and natural law. ³³ Even some categories of positive law were beyond the ordinary scope of direct personal control of the ruling sovereign, such as custom and the fundamental laws of the realm [leges imperii], those laws which, as he put it, “concerned the very estate itself.” ³⁴ Bodin also observed that since legislation was, in practice, procedurally and institutionally mediated through a complex legislative apparatus, such as the enregistering of decrees in the courts of Parlement, it could not be the case that the content of law was perfectly identical with the sovereign’s naked private will. While law may, in principle, have originated in the sovereign’s lawmaking will, Bodin understood law as having an independent juridical existence, which commanded authority independent of its legislator. Once promulgated through the appropriate procedural channels and gaining recognition, law remained constant and frozen (theoretically in perpetuity), as a “snapshot” or residual “afterlife” of the sovereign’s act of legislation.

Certainly, Bodin grants that it is within sovereign right to reform the laws as necessary, as the Roman Decemvirs had done in codifying the XII Tables. But it did not follow from this that the sovereign should. Indeed, for Bodin, once a rule of law has been so promulgated, it must absolutely not be touched or meddled with, a central guiding normative principle expressed in Book IV of the République. Recognizing that “there is nothing more difficult to handle, nor more doubtful in event, nor more dangerous to manage, than to bring in new decrees or laws,” Bodin explicitly warned that any sovereign which aspires to govern through law, and not seigneurially by will, should rarely touch the laws of the state—and if it does, it should do so only for matters of the most “urgent necessitie.” ³⁵ Even when a change in the law might so obviously be for the better, the potential costs associated with the unsettling of an established rule of law would rarely be worth the effort, especially since the mere passage of time, through desuetude or prescription, would remedy and reform imperfections in the law without having to incur the potentially hazardous costs attached to swift legal change by an act of sovereignty. Thus Bodin makes a proto-Burkean point:

[While] the iniquitie of some auntient law bee by right evident, yet is it better to endure it, untill that it in time by little and little of it selfe loose the force, than upon the sudden by violence to repeale it. ³⁶

Bodin, thus, actually turns out to be a kind of gradualist in his views on legislation and legal reform. In policy, he favored piecemeal reform over bold change. Much better is it to let the law evolve on its own, through established procedures and customs, rather than directly meddling with it through the uncertain exercise of legislative sovereignty—as a seigneurial ruler might.

To be sure, Bodin did recognize that, occasionally, the sovereign will want to make minor legislative changes to what he calls “ordinarie policie” for the public benefit [salus populi]—areas of civil law governing matters such as property, contracts, or punishment. But Bodin was especially careful to distinguish such “ordinary policy” from those higher-order laws “concerning the very estate itself”—what we might today call public or constitutional law. The latter should rarely, if ever, be changed and should, as much as possible, be left alone and set beyond the scope of ordinary politics. ³⁷

Indeed, he warned of the grave dangers in attempting to meddle with those laws “concerning the very estate itself”:

To change the laws which concern the estate, is as dangerous, as to remove the foundation or corner stones which uphold the whole weight or burden of the buildings; in which doing the whole fabric is to be sore shaken, and beside the danger of falling, receiveth more hurt by the shaking thereof, than it doth good by the new reparation, especially if it be now become old and ruinous. ³⁸

Taken together, Bodin stressed a relatively simple point in his vision of lawful government: Just because a sovereign authority can exercise a sovereign right such as legislation, it does not follow that it should exercise that right. This is because, for Bodin, there are potentially enormous costs attached to the direct and potentially arbitrary exercise of legislative sovereignty, in the seigneurial manner. It would be far better both for the state and for the security of the sovereign’s authority to govern through existing law—to allow the exercise of power according to established law and custom, to contain and routinize public functions of state. Thus, as Stephen Holmes put it, while a Bodinian sovereign “is not legally obliged to lay down general rules . . . if he has an iota of political sense, he will do so.” ³⁹

If the interpretive puzzle is to explain why a sovereign with the full legal right to exercise sovereignty directly as a seigneur would ever want to govern under the constraint of law (in a “lawful” manner rather than a “seigneurial” manner), one compelling answer might be derived from the logic of instrumental reasoning. While it is true that the bearer of sovereignty may, in theory, have had the sovereign right to exercise supreme power directly and without legal limit, Bodin cautioned that there were unavoidable consequences, even positive dangers, associated with the frequent and unsteady exercise of sovereignty in a poorly governed state. For example, sovereignty might be lost altogether if a state is governed seigneurially rather than lawfully:

If the [sovereign] prince or the [sovereign] people shall take upon themselves the authoritie of the Senat, or the commaunds, offices, or jurisdictions of the magistrats; it is much to be feared, least that they destitute of all helpe, shall at the length be spoyled of their owne soveraigne maiestie also. ⁴⁰

It would be in the sovereign’s long-term self-interest to govern lege, rather than arbitrio.

It seems then that, in Bodin’s mind, the exercise of sovereignty came with something like “transaction costs” attached to it—for every act of sovereignty, the state lost a little bit of its sovereignty. 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 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, that “the lesse the power of the soveraigntie is…the more it is assured.” ⁴¹

On this analysis, seigneurial rule could not function as a reliable basis for a stable and permanent regime. Indeed, direct seigneurial exercise of sovereignty would merely activate or reproduce disruptive forces potentially destabilizing the unity of the state. The long-term interest of the state would require instead a policy steering away from occasions necessitating seigneurial rulership, one which would minimize—rather than maximize—the extra-legal “constitutional moments” when sovereignty could be exercised directly at will. ⁴² It required a sovereign, as Jon Elster once put it, to have the foresight to voluntarily bind oneself to constitutional rules. ⁴³ Lack of such foresight was, as Bodin observed, the chief reason for political instability among primitive seigneurial regimes and explained why so many ancient states—as well as poorly governed modern states—were short-lived. For these reasons, Bodin advised that sovereignty must constitutionally be shielded and hidden away from the ordinary tussle of politics.

There is a bit of a paradox here. ⁴⁴ On the one hand, sovereignty is necessary for the very existence of the state as an independent order, yet on the other hand, sovereignty must, in a sense, be “de-politicized” or “de-activated” in order for it to function as a stable and reliable source of order and legitimacy—no doubt, a reflection of the Politique position in the tumultuous context of the Wars of Religion. ⁴⁵ The sovereign authority should, rather, function more like a deus ex machina, appearing only rarely to adjudicate the most urgent matters of state. Drawing upon the analysis of Contarini, Bodin gives the example of constitutional practice in the Republic of Venice, in which the sovereign assembly “wherin the whole maiestie of that Commonweal resteth, is never assembled but for the creating of new magistrats, or enacting of lawes, all the rest of the affaires of the estate being to be dispatched by the Senat, and the councell of the Ten, and of the Seven men; and matters of iurisdiction by the other magistrats.” ⁴⁶

But if sovereignty was to be “de-politicized” in this way—removed from ordinary matters of government and administration of state—how, and on whose authority, could the state be governed? Bodin’s answer was that such public power must be delegated to others, acting as agents or “keepers in trust” of the sovereign power. If sovereignty should not be exercised directly by the sovereign, as Bodin counseled, then it must be exercised indirectly through some legal scheme of delegation and agency. What Bodin advocated in his vision of lawful government was the systematic “outsourcing” of government functions and exercise of public powers to other agents legally charged with the care of public business, that is, “officers” [officiers] of state. ⁴⁷

“Office Is a Thing Borrowed”

A well-ordered state, Bodin wrote in Book III of the République, “cannot stand without officers.” ⁴⁸ But as necessary as they may be to the state, officers—as agents of the state legally appointed to exercise public functions on behalf of the sovereign—occupied an ambiguous position in the state, an interstitial space between sovereignty and subjection. This is because officers carried a sort of dual personality. In some respects, officers resembled the sovereign because they, like the sovereign, can exercise public powers—indeed, as Bodin readily acknowledged, officers could theoretically even exercise the highest powers of the state, such as capital jurisdiction [jus gladii], or the right of final appeal. ⁴⁹ But in other respects, officers were most unlike the sovereign and instead shared the subordinate position of the subject, since even officers of the highest rank and dignity nevertheless occupied positions carved out by the law and must remain, in theory, inferiors of the sovereign authority.

Officers were properly understood to be “delegates” of the sovereign. But this was most unhelpful for Bodin since, as he complains, “the doctors have confounded all together under the name of Delegats.” ⁵⁰ To be sure, Bodin’s analysis of seigneurial rule had already allowed that a sovereign may need to delegate the exercise of power to outside agents who, as he put it, “holden [their positions] but by sufferance,” what he had called “commissioners” [Fr. commissaire; L. curator], a vestigial relic of seigneurial patterns of government. ⁵¹ What, if anything, was the difference between a “commissioner” in seigneurial regimes, and “officers” in lawful regimes?

Whereas the commissioner was understood to be a delegate fully dependent upon the continuing pleasure of the seigneur, the officer’s relationship to the sovereign was framed rather in the formal juridical terms of a commercial transaction regulated by law, such as a trust, a mortgage, a purchase, or a loan. And indeed, it was precisely in such juridical or contractual terms that Bodin explained the jural status of the officer and the authority of his office, by drawing upon a critical analogy in the civil law:

An office is a thing borrowed [Fr. chose empruntee; L. commodatum], which the owner [proprietaire] cannot demand again before the time it was lent for be expired. ⁵²

Here, “office” was conceptualized merely as a “legally-defined” [lege definitum] bundle of rights and powers which, like property, could be held and exercised by another party.

This comment, appearing in Book III of the République, is remarkable for several related reasons. It underlines, first of all, the background view in early modern French legal thought, that it was fully acceptable to treat offices, of all ranks, just as if they were articles of private property, legally capable of ownership, inheritance, sale, and purchase. As historians of early modern France have long observed, such “venality of office” was a widespread, if a regrettable (as Bodin thought), practice. ⁵³ It was, indeed, one of the principal sources of constitutional fragmentation in the early modern French state, directly attacked by reformers such as Michel de l’Hôpital, the Politique President of the Parlement of Paris. ⁵⁴

More to the point, however, this treatment of office as a legally “borrowed power” highlights how Bodin understood the precise nature of the relationship between the sovereign authority and the lesser officer—not in the terms of a master-slave relationship, as in seigneurial regimes, but in the terms of a commercial transaction between a legal “owner” and a “borrower.” For a legally trained thinker like Bodin, this analysis was of supreme importance because, unlike the innominate contract of precarium in which all rights accrued to the owner, the bilateral contract of commodatum distributed rights both to the owner and the borrower. Whereas a “precarious” grant was fully revocable and left the holder entirely at the mercy of the owner, the commodatum assigned rights both to the lender and the borrower. It implied that even an officer has certain actionable rights.

This Civilian analysis in private law was, I argue, crucial for Bodin because it enabled him to frame the analysis illustrating the key difference between the officer and the commissioner. As Bodin argued, the “charge” of the officer was fundamentally different from the charge of the commissioner in seigneurial regimes. ⁵⁵ In the case of commissioners, Bodin explains, the nature of the charge was “extraordinary” [Fr. charge extraordinaire; L. extra ordinem] unregulated by law [sine lege] but, instead, provisional and totally dependent upon the permissive will [arbitrio] of the seigneurial ruler delegating the power. ⁵⁶ Here, the grant of commission was described as a mere permissive grant which “ceaseth by the death of him that graunted the same, or by his revoking of the commission.” ⁵⁷ Bodin stressed that such commissions may even be “revoked at the pleasure of the prince” [arbitrio revocantur]. ⁵⁸ And, for this reason, he thought all commissioners were “bound, and as it were, tied unto the very words of their commission, and especially where question is of the affairs of state.” ⁵⁹

Whatever the length of time for which a grant of commission was made, Bodin’s key point was that commissions were not meant to be constitutionally permanent, but merely provisional; no commissioner can expect to hold his position securely or permanently, since they served only at the pleasure of the sovereign. Nor could a commissioner transfer or sub-delegate his powers to another, because of the Civilian rule of Paul in the Digest that “one cannot delegate to another a jurisdiction which one holds by delegation.” ⁶⁰ For Bodin, then, commission was not a “borrowed thing” [commodatum] at all, but instead is a “precarious thing” [precarium], a “thing which one hath but by sufferance [Fr. par forme de precaire; L. precario], and as it were by leave, which the owner [seigneur] may again demand when he seeth good.” ⁶¹

Officers of state, by contrast, were said to “have an ordinary charge,” governed by settled law [lege], and not by the arbitrary will [arbitrio] of the sovereign. ⁶² Unlike commissions, then, offices, like magistracies, were meant to be perpetual. They “continue for ever after they be once by edict erected,” and they were attached to rights and powers that remained intact regardless of the personal occupant of that office. ⁶³ For this reason, Bodin commented that “the power of an officer . . . is better authorized, and larger than a commissioner.” ⁶⁴ Unlike the commissioner, then, the officer was distinguished by the “continuance perpetuall” of his tenure. ⁶⁵

Given this, what essentially set the officer apart from the commissioner was not the menu of public functions or powers he exercised. Rather, the essential point of difference was the manner by which each held and exercised the public charge on behalf of the sovereign. Indeed, Bodin was very careful to stress that both commissioners and officers may, in theory, be assigned to perform identical public functions and hold identical titles, as he explained with illustrations in French constitutional history. For example, he observed that,

Judges [at the time of Charlemagne] were but simple commissioners, with authoritie and power during plea—who yet afterwards for the common good and profit were made perpetuall officers, with an ordinarie and perpetuall charge and power committed unto them: their old and former name of commissioners, yet by abuse or for the honor of that court still remaining. ⁶⁶

While royal judges in Bodin’s time may appear as if they were just like those of the ancient Carolingian monarchy, they were in fact fundamentally different since the Carolingian judges exercised jurisdiction purely “by sufferance,” while modern Capetian judges were independent officers in their own right. He made a similar point in relation to the nobility whose feudal titles, dignities, and prerogatives were just the same as they were in the ancient past: “In Principalities, Dukedomes, Marquisats, and Earledomes, which now are had in perpetuitie…before were holden but by way of commission, and that during the princes pleasure, which at the first were but annuall, but afterwards perpetuall.” ⁶⁷ The difference between the officer and the commissioner—a difference which, Richard Bonney claims, was “first made by Bodin”—lay in the difference in their terms of service to the sovereign—how “robust” their tenure or hold on power was. ⁶⁸

This analysis offers a remarkable vision of the law-governed state in which officers enjoyed a substantial degree of juridical and political independence from the normally dormant sovereign authority. Whereas the commissioner was directly controlled by the seigneurial ruler, like a puppet on a string, perpetually tethered to his will, the officer enjoyed his own separate “estate,” as a member of an intermediate political class of “officialdom,” operating the machinery of state. For Bodin, cultivating such a professional corps of officers—immune from arbitrary removal by the royal ordonnance of Louis XI in 1467, guaranteed in the so-called French “law of irremovability” [loi d’inamovibilité]—was essential for realizing the normative ideal of lawful government. ⁶⁹ It was also good public policy, by encouraging the professionalization and specialization of routine state functions. ⁷⁰ Since skill in discharging public functions of state could only be acquired by the accumulation of experience over time by officers specializing in particular tasks, he maintained that officers—especially what he called the “meane officers” of state such as “Clarks, Sergeants, Ushers, Notaries”—should be kept in office perpetually, separated from sovereign arbitrium. ⁷¹ In this respect, Bodin may be regarded one of the first serious theorists of bureaucracy by articulating some of the conceptual foundations of what theorists of bureaucracy call the problem of information asymmetry in complex organization.

But above all, because such a “loan” [commodatum] of office was technically a contract, it must be understood to be reciprocally binding not only on the officer but also, significantly, on the sovereign making such a grant. As Bodin famously opined, contracts to which a sovereign was a party “reciprocally bindeth both parties, so that the one party may not start therefrom, to the prejudice, or without the consent of the other.” ⁷² So it appears that, programmed into the heart of Bodin’s doctrine, was actually a robust notion of the rule of law. ⁷³ The sovereign could not arbitrarily interfere in the affairs of state officers, nor could it ignore the mutually binding obligations created by office. It was just this legal relationship of lending and borrowing public power, which prevented the sovereign from interfering in the affairs of government that, for Bodin, made lawful government possible.

Bodin on Azo and Lothair

As we have now seen, Bodin developed a theory of lawful government which neutralized the seigneurial will with a scheme of delegation and agency that shifted the duties of discharging sovereign power unto an intermediate class of officers. Civil law supplied Bodin with the key to his analysis of the officer as a “borrower” of public power. As Bodin put it, officers of state were nothing but “keepers” [Fr. depositaires et gardes, L. custodes] holding “in trust” a power belonging to someone else [i.e., Fr. seigneurs et possesseurs, L. possessores ac domini], and “exercis[ing] but by way of loane or borrowing” [Fr. precaire, L. commodato vel pignori]. ⁷⁴ But if office was indeed a “thing borrowed,” it remains to ask one final question: From whom (or what) was it borrowed? Who was the true owner [seigneur or dominus] of the office held by the officer?

In the Third Book of the République, Bodin isolated several possible replies, suggesting that, inter alia, office might belong “unto the prince, or unto the magistrate himself that beareth the office.” ⁷⁵ But what is notable about Bodin’s comment is that these were precisely the same positions carved out historically by the thirteenth-century Glossators, Azo and Lothair, in a famous legal debate that had framed the traditional medieval analysis of office. ⁷⁶ This was, in particular, the interpretive debate on a central question of Roman public law which, according to the Civilian tradition, was raised by the Holy Roman Emperor, Henry VI, and addressed to Azo and Lothair: Cui competit merum imperium [To whom does sovereignty belong]? As Bodin understood the dispute, the Emperor’s question essentially concerned the issue of ownership:

Whether the power of the sword (which the law calleth Merum imperium, or meere power) be proper unto the soveraigne prince, and inseparable from the soveraigntie; and that the Magistrats have not this merum imperium (or meere power) but onely the execution thereof: or that such power is also common unto the Magistrat, to whome the prince hath communicated the same. ⁷⁷

As Bodin observed, “[the] question was disputed betwixt Lothair and Azo, two of the greatest lawyers . . . [before] the Emperor Henry [VI] . . . upon the wager of an horse.” ⁷⁸ According to tradition, Lothair replied that imperium belonged solely and fully to the Emperor, not to his officers who had merely the “use” or “exercise” of it. Indeed, imperium, as Lothair explained, was just as if it were the Emperor’s property. Azo, by contrast, acknowledged that the Emperor had merum imperium, but he stressed that it was not exclusive to the Emperor. Instead, Azo argued that merum imperium belonged not only to the Emperor, but to anybody with “the right of the sword” [ius gladii], the authority to inflict coercive punishment. Of course, the Emperor certainly had the jus gladii and, therefore, on this line of reasoning, also had merum imperium. But because there were numerous other officers besides the Emperor with such coercive punitive power, like provincial governors and even city magistrates with limited jurisdiction inferior to the princeps, Azo concluded that Lothair’s answer could not be correct. ⁷⁹ “It must [therefore] be lawful,” Azo concludes, “for merum imperium to be wielded by other high powers” besides the Emperor. ⁸⁰

In the end, the Emperor favored Lothair’s reply and rewarded him with a horse, giving rise to the quip that the better jurist (Azo) inequitably lost a horse [equum], even though he defended equity [aequum]. But the debate did not end here. This was only the beginning, as Bodin recalled, “Lothair indeed carried away the honor [but] almost all the rest of the famous lawyers then upheld the opinion of Azo, saying that Lothaire equum tulerat, sed Azo aequum.” ⁸¹ Indeed, Azo’s dicta became the standard view in medieval jurisprudence and was repeated in the vast commentaries on Roman law, such as in Accursius’s Gloss, well as in Bartolus’s influential commentaries on the Digestum Vetus. ⁸²

But in the sixteenth century, French humanist jurists, especially the academic lawyers of Bourges such as Andrea Alciato, François Duarenus, and Hugo Donellus, began to question the medieval conventional wisdom on imperium originally crafted by Azo. ⁸³ These legal humanists targeted what they viewed to be the problematic claim that lesser officers and nobles held their offices, titles, and associated jurisdictional rights of imperium as property, totally independent from the sovereign. One promising strategy of attack against the medieval dicta, crafted by the legal humanists, involved essentially a revival of Lothair’s doctrine. The humanist, Alciato, put the point succinctly: Only the princeps can properly be said to have ownership over the jurisdictional powers attached to state offices; officers were only permitted the mere use [usus] or exercise [exercitatio] of princely rights by concessive grant. ⁸⁴ In so arguing, the humanists contested the central premise of the medieval theory: Officers did not “own” their offices at all; they simply made “use” of it, like a usufructuary. No officer, thus, could rightfully claim a legal proprietary right to exclude a sovereign ruler from entering or recovering his jurisdiction. Indeed, such a claim of exclusion would be, as Loyseau once declared, an illegal “usurpation” of sovereign rights. ⁸⁵

Bodin, who was educated by the legal humanists, was certainly well aware of this deliberate and politically driven revival of Lothair’s doctrine. Indeed, he observed this unsettling shift in legal opinion in Book III of the République, writing that, “Many since have [adopted] the opinion of Lothair, so that the question remaineth yet undecided.” ⁸⁶ Unsurprisingly, he initially showed some sympathy with the humanist position carved out by the humanists favoring the jural supremacy of the princeps, because it absolutely denied lesser officers any independent right of property in their offices. Indeed, Bodin’s analysis, in part, targeted the background assumption in the medieval dicta that office could be held in patrimonio, as an object of private property and, thus, subject to ordinary legal rules of sale, prescription, alienation, and inheritance. This venal concept of office represented, for Bodin, one of the most serious and unacceptable abuses of medieval legal thought, what he regarded to be an “evil custom” dangerous to the stability of the state. ⁸⁷

Yet, despite his superficial agreement with the humanists’ criticism, Bodin could not fully embrace their argument favoring Lothair’s view. Indeed, in his criticism of the humanists, Bodin very specifically repudiated the humanist position and was unwilling to endorse their doctrine that offices “belonged” to the prince as property, singling out by name Lothair, Alciato, and Dumoulin. ⁸⁸ He did so because he could not accept the background seigneurial concept undergirding the humanist doctrine—that the ruling princeps was actually like a proprietary dominus over the res publica.

To wit, Bodin’s objection to the legal humanist theory was not so much in the idea that the princeps held sovereign power. Indeed Bodin very much welcomed the princely form of sovereignty. Rather, his objection here was rooted in a more general criticism of the entire background juridical analysis which framed interpretations of the debate between Azo and Lothair in the juridical language of proprietary right—namely, that both the humanists, who favored Lothair, and the Bartolists, who favored Azo, allowed offices to be held as private property.

For Bodin, this was the root of the problem in the legal treatment of offices. Office simply was not the sort of thing that could be “owned” as the private property of any person; to claim otherwise was akin to committing a sort of category error. As Bodin put it, offices “be not proper unto the person” who occupies and exercises the rights and powers of the office. ⁸⁹ But neither could a prince—“excepting in a lordly [i.e., seigneurial] Monarchie”—claim legal ownership of offices as private property. ⁹⁰ In so arguing, as Myron Piper Gilmore once observed, Bodin consciously distanced himself from the medieval view by stressing “the impropriety of applying to [public office] terms derived from the private law of property.” ⁹¹ He not only rejected both of the major positions carved out by Azo and Lothair, but he rejected the entire legal analysis of the law schools.

Bodin instead crafted his own solution to the analysis of offices, a “third way” between these two dogmatic positions. For Bodin, “there is no doubt, but that all estates, magistrats, and offices, do in propertie belong unto the Commonweale [république] . . . [and] offices rest and remaine in the possession and propertie of the Commonweale [république], as a thing put in trust.” ⁹² His careful use of the term république (or respublica) here was both deliberate and strategic. Respublica, as Civilians knew very well, carried a technical meaning in the civil law, meaning “public property,” objects of property belonging in common to the public. ⁹³ To suggest, then, as Bodin did, that offices belonged not to a person, but to the respublica, was effectively to detach office entirely from the scope of personal enrichment. It was from the state, not a person, that offices were “borrowed.” And it was to the state that the borrower owed the obligation to exercise public property with care—as Bodin put it, as a “keeper in trust”—and to return that borrowed power back to the state. By positioning the officer as a public servant of the respublica, rather than as a private servant of the ruling princeps, Bodin succeeded in underscoring the independence of the officer and, by implication, the practical limitations of sovereignty in the task of governing the lawful state.

Conclusion

Bodin’s analysis of office, delivered by way of a critical commentary on the Azo-Lothair debate, introduced a doctrine of monumental importance, which as Gilmore put it, “mark[ed] a stage in the recognition of the inapplicability of concepts taken from the private property law to the public power.” ⁹⁴ In the earlier debates tracking Azo and Lothair, legal arguments assumed only two possible “owners” of office—either the person of the prince or the person of the officer. The assumption was that office must belong to some person. Bodin, however, was perhaps the first in this centuries-long debate to contest that assumption by detaching office entirely from the scope of personal ownership and introducing, instead, the res publica—the state—as a distinct third party, from whom offices may be borrowed. In a sense, Bodin “de-personalized” the state’s sovereignty and, in so doing, enabled the exercise of sovereign power to be moderated, regulated, controlled.

Recent commentators on Bodin have not appreciated the unique role of officers in the République. ⁹⁵ Indeed, much of the literature alleges simply that Bodin understood all lesser subordinates of the Crown to be like commissioners, in a slavish condition of dependence upon the sovereign ruler. On Julian Franklin’s influential reading, for example, all subordinates serve only at the pleasure of the ruling prince—or, as Bodin put it, “by sufferance.” ⁹⁶ Indeed, Franklin has even argued that Bodin was merely replicating the constitutional doctrines of the French legal humanists such as Andrea Alciato and Charles Dumoulin, who reaffirmed the view of the medieval Glossator, Lothair. As a result, Franklin (and others who have uncritically followed his reading) makes it seem as if subordinates of the sovereign in a Bodinian state were all in the precarious state of commissioners, but he makes no allowance whatsoever, as Bodin carefully did, for officers who held their positions securely by law and in service of the state. ⁹⁷

But this conventional view cannot be correct, for at least two important reasons. First, Bodin specifically distanced himself from the legal humanists and, as we have seen, explicitly repudiated, by name, the views of Lothair, Alciato, and Dumoulin, in order to carve out his own position that “de-personalized” the jural relationship between the state and its agent, the officer. ⁹⁸ Second, and more important, it overlooks Bodin’s own careful distinction between an office and a commission. Of course, ignoring this distinction makes it easy to view Bodin as an absolutist, since all subordinates of the sovereign would then be seen to be mere commissioners, holding their delegated powers merely “by sufferance,” as in a seigneurial regime which Bodin rejected. But, as we have seen in Bodin’s analysis, legally constituted officers were actually understood to enjoy a rather wide degree of immunity, autonomy, and independence that made them something more than slavish commissioners tethered in dependence upon the will of the sovereign. Indeed, Bodin respected and recognized the need for government to be kept at a safe distance from sovereignty, in order for it to function properly.

The conventional view, thus, does not seem to capture quite fully one of Bodin’s major normative projects which, I argue, was not to legitimize a political theory of seigneurial government, but rather, to delegitimize it. Indeed, the presence of juridically independent officers (as Bodin understood them) seriously complicates the “absolutist” reading of Bodin because it shows that there is, in fact, a class of political subordinates within the theory of the well-ordered state who nevertheless remain juridically independent of the sovereign will. If this is correct, then there is a pressing need to recalibrate our understanding of Bodin’s political thought and, with it, the modern theory of sovereignty, in a non-absolutist way.

Let me offer then, as a concluding comment, one strategy in envisaging such a non-absolutist notion of sovereignty. Such an approach might begin by separating Bodin’s notion of “absolute” power from the more general early modern doctrine of political “absolutism.” While it is true that Bodin, famously, spoke of “absolute” power in defining sovereignty, this cannot be taken as conclusive evidence that Bodin therefore belonged to a supposed tradition of political “absolutism” that emerged in early modern Europe, aligning the authority of the state with the personal arbitrary and discretionary will of the ruling prince. One reason for this comes from the simple fact that “absolutism” was a diffuse category invented retrospectively by modern historians, especially of the nineteenth century, who attempted to reconstruct the political world of the ancien régime. ⁹⁹

But the more important, theoretical reason for conceptualizing a non-absolutist understanding of sovereignty is that “absolute” power simply was not the same thing as “absolutism.” In certain ways, absolute power even carried normatively positive connotations in early modern thought that favored lawful rule. Absolute power meant something like “pure” power, which is why Roman law for example speaks of merum imperium [“the pure power of command”] cited by Bodin in his early formulations of sovereignty in the Methodus. ¹⁰⁰ Such absolute power was the vehicle enabling a sovereign king, in his capacity as a judge, to champion the cause of his subjects suffering abuses of power and injustices under some petty noble or local authority. ¹⁰¹ It was, thus, understood to be a progressive forward-looking legal device, designed to counteract the backward vestiges of feudal particularism and encroachments of church authority. Indeed, the effective delivery of justice required absolute power.

As a professionally trained lawyer, Bodin absorbed this precise understanding of absolute power and coined the term souveraineté to signify it. As was common in this period, he described sovereignty as an “absolute” power because it was technically “absolved” or “freed” of legal and customary constraints, just as Roman law described the powers of the Roman princeps as similarly legibus solutus—“absolved of all human laws.” ¹⁰² But it was not, by any means, an endorsement of those arbitrary “seigneurial” techniques of rule which were typically associated with the personal rulership of absolutist princes (Bodin had in mind the Turks and Muscovites) and which, as I have argued here, Bodin explicitly repudiated.

Bodin’s sovereignty, thus, might be better understood as an existential claim about the state, rather than as an ideologically absolutist claim about governing a state. Sovereignty was, specifically, the sort of power that, in theory, had to exist in every state in order for it to exist as an independent legal and political order. But it did not entail a commitment to any particular view about how such power ought to be discharged in governing a state. Sovereign authority was equally compatible with, and ideologically neutral between, both seigneurial and lawful techniques of government. A sovereign prince may govern through commissioners, just as a sovereign prince may choose to govern through legally constituted officers. These were open questions of institutional design.

What this suggests is that there is nothing intrinsically or necessarily “absolutist” about sovereignty, and particularly, in Bodin’s understanding of sovereignty. Nor can sovereignty be regarded, as Schmitt once suggested, the enemy of the political, since, as he (like Bodin) observed, sovereignty is precisely what carves out the space in which political life can flourish. ¹⁰³ If the concept of sovereignty can successfully be unlocked from the category of absolutism along these lines, it opens the possibility of a more refined analysis of sovereignty that avoids the reductionist aspiration for a modern politics without sovereignty.