Rousseau,Bodin,and the Medieval Corporatist Origins of Popular Sovereignty

Rousseau and Bodin

Rousseau cites or alludes to Bodin twice in The Social Contract (1762). One of these references is almost always overlooked, and the other typically dismissed as a casual remark. In fact, these references are extremely revealing, both for their specific content and for the passages in Bodin’s Six livres de la République (1576) toward which they lead us.

The first, explicit mention is in a footnote: “When Bodin wanted to speak of our Citizens and Bourgeois, he committed a bad blunder in taking the one for the other.” ¹² This sentence has puzzled scholars, since it appears to be a false accusation. ¹³ Bodin had indeed discussed the difference between the citizens and the bourgeois of the Republic of Geneva in book 1, chapter 6, of the République (1576). In later editions, we read that “in Geneva a bourgeois cannot be Syndic, or Senator of the privy council of XXV, which a citizen may well be.” ¹⁴ Bodin goes on to clarify the reason: “the citizen is born of a citizen or of a bourgeois; & the bourgeois is received as a citizen [i.e., naturalized].” ¹⁵ That was indeed the correct definition of, and hierarchy between, these social categories in the Republic of Geneva. ¹⁶ So why did Rousseau criticize Bodin? As it turns out, earlier editions of the République had inverted these two terms. Robert Derathé discovered this error in the 1577 (Parisian) edition, but it was there from the beginning, in the first edition. ¹⁷ Rousseau must have read Bodin in one of these early editions, and since scholars generally consult later editions, where Bodin had corrected his error, Rousseau’s criticism appears misguided.

Perhaps because commentators assumed that Rousseau had misread Bodin, they have not made much of this reference. But it matters greatly for at least three reasons. First, not many authors are cited in The Social Contract, so the mere fact that Bodin is named suggests his importance. Secondly, this reference leads us to a particularly relevant passage in the République, which, as we will see, was a likely source for Rousseau’s own definition of citizenship. Thirdly, Bodin’s appearance here serves as a kind of mental trace, suggesting that Rousseau had Bodin in mind while writing this section of The Social Contract.

But why would Rousseau think of Bodin when discussing democratic citizenship? To answer this question, we must first consider Rousseau’s overall impression of Bodin. The language he uses in the footnote should be weighed carefully: calling Bodin’s mistake a “bévue” (blunder) implies that Rousseau deemed the République to be an otherwise authoritative text. Indeed, when Rousseau referred to Bodin elsewhere, it was always in a favorable manner. In his 1755 Encyclopédie article on “Economie,” he cited Bodin as an authority on three occasions, most notably to justify the decidedly non-absolutist principle that taxation requires either the direct or indirect consent of the people. ¹⁸ The Lettre à d’Alembert (1758) also cited Bodin approvingly, to criticize the “impostors” who “impose” taxes for their own gain (the pun was Bodin’s). ¹⁹ Finally, Bodin features at the beginning of a long list of “good and enlightened Frenchmen” who had all sought to “reveal the errors of legislation for all the nation to see.” Others in this list include Fénelon, Boulainvilliers, the abbé de Saint-Pierre, Montesquieu, the marquis de Mirabeau, and Mably. ²⁰ In Rousseau’s eyes, Bodin was an honorary member of the Enlightenment.

I will return shortly to the significance of this one, explicit reference to Bodin’s definition of citizenship in The Social Contract. To fully appreciate it, however, we need to examine Bodin’s second, unnamed appearance. This occurs at the beginning of the chapter immediately following the footnote where Bodin is cited. In this next chapter, “On sovereignty,” Rousseau develops a crucial feature of his theory of democratic sovereignty, namely the dual identity of citizens, as both members of the sovereign body and as its subjects:

the act of association involves a reciprocal engagement between the public and private individuals, and . . . each individual, by contracting, so to speak, with himself, finds himself engaged in a two-fold relation: namely, as a member of the Sovereign toward private individuals, and as a member of the State toward the Sovereign. But here the maxim of civil law, that no one is bound by engagements toward himself, does not apply; for there is a great difference between assuming an obligation toward oneself [s’obliger envers soi], and assuming a responsibility toward a whole of which one is a part. ²¹

Bodin’s presence is not immediately evident in this passage, but will soon become apparent. Rousseau introduces here a new condition for defining a politically legitimate association, one that he apparently found in Roman law (droit civil). ²² This was the rule that no one can be bound by promises they make to themselves. This principle is critical to Rousseau’s argument in The Social Contract for two reasons. First, it allows him to rebut Grotius’s assertion that a people can indefinitely alienate their political rights to a sovereign. ²³ Grotius, like Hobbes after him, was building on the famous lex regia of Roman law, according to which the people of Rome irreversibly conferred their full sovereignty and power (imperium et potestatem) to the emperor. ²⁴ The “maxim of civil law” invalidated this argument, at least in its strong version (indefinite alienation), since the people could not be perpetually beholden to this choice of how to rule themselves.

Second, theorists of popular sovereignty faced a particular challenge on the issue of legislation. On the one hand, citizens had to obey the law; otherwise, the result was the kind of lawless “ochlocracy” that monarchists (and even republicans) feared. ²⁵ On the other hand, citizens must have the power to change the laws; if not, who else could do so in a popular state? Monarchies avoided this problem by defining the sovereign as legibus solutus, or “unbound by the laws.” ²⁶ The monarch could not be “bound” by laws (even if he was generally expected to follow them), since otherwise no one could ever modify them. ²⁷ But this solution was not readily available to theorists of popular sovereignty: how could they make the people “unbound by the laws” without at the same time making them lawless?

Before examining how Rousseau dealt with this challenge for a popular sovereign, let us first ask what “maxim of civil law” he was referring to. There are a few passages in the Digest that express related ideas, though none is an obvious candidate. Closest perhaps is the assertion that “no-one can issue a command or a prohibition to themselves” (neque autem imperare sibi neque se prohibere quisquam potest). ²⁸ This was a claim that the Bolognese Glossators, most notably Accursius, referred to in order to justify the emperor’s status as legibus solutus. ²⁹ But we can only speculate whether Rousseau was familiar with this passage, and more generally about his familiarity with Roman law. It seems more likely that he would have discovered this “maxim” in a secondary source. ³⁰

And this is where Bodin makes his second appearance. In the République, we find a maxim very similar to the one Rousseau cites. ³¹ What’s more, it is in the famous chapter “On Sovereignty,” a natural section for Rousseau to consult while composing his own chapter with the same title. Bodin writes,

impossible it is in nature to give a law unto himself [de se donner loy], no more than it is to command a man’s self in a matter depending of his own will: For as the law says, Nulla obligatio consistere potest quæ a voluntate promittentis statum capit. ³²

Bodin’s Latin law is a paraphrase of another title in the Digest: Nulla promissio potest consistere, quae ex voluntate promittentis statum capit. ³³ Both phrases can be loosely translated as follows: “no promise [or obligation] can be made that rests on the will of the promissor.” More than the Latin maxim, however, Bodin’s French translation is arguably the most likely source for Rousseau’s own formulation (“nul n’est tenu aux engagemens pris avec lui-même”). Bodin repeats this assertion later on in the same chapter, this time writing, “the people make but one body, and cannot bind itself unto it self [ne se peut obliger à soy mesmes].” ³⁴

Why does it matter that Rousseau’s source for this maxim was probably Bodin? It matters because it leads us straight back to a critical, overlooked passage in this famous chapter, where we find a solution to the problem of popular sovereignty that is identical to Rousseau’s. Indeed, Bodin included a section here on the “Singularity of the popular state.” ³⁵ Bodin considered how sovereignty functions in a democracy, examples of which he found in the Roman Republic and some Swiss cantons (though not Geneva, which he argues had an aristocratic government). Having just asserted the law against self-obligation a second time, he immediately pivoted to the theoretical difficulty discussed previously. If the people in a popular state possess sovereignty, “Why then (will some say) did the people of Rome swear to maintain the laws?” Indeed, according to Bodin’s own definition, a sovereign people should be legibus solutus. So it was illogical that the Roman people would swear to uphold laws that they, and only they, could change. ³⁶

Bodin’s solution to this paradox was that the people must be considered under two different guises: “I accordingly say that each made this oath as an individual [chacun en particulier faisoit le serment]: something that they could not have done collectively [tous en general].” ³⁷ At the time of the Republic, the Roman people could swear to uphold the laws, Bodin argued, because they took this oath individually. As particular members of the Republic, each of them had to obey the laws. But as the collective populus, they could not have sworn to defend the laws, since they could not bind themselves to maintain them. As the Roman republic was a popular state, in which sovereignty was vested in the people, the individual Roman citizen must obey the laws, whereas the collective Roman people (the populus) must remain unbound by them (legibus solutus).

What we find spelled out in Bodin, then, is precisely the same argument that Rousseau formulates in the very passage where he alludes to Bodin’s maxim: “there is a great difference between assuming an obligation toward oneself, and assuming a responsibility toward a whole of which one is a part.” ³⁸ Bodin had explained his reasoning even more clearly in the Latin, more erudite edition of the République. ³⁹ We cannot know whether Rousseau also consulted the Latin edition; it is found in the private libraries of some eighteenth-century political writers (such as Adam Smith), but not of others (such as Montesquieu). ⁴⁰ In any case, the argument there is identical, if more developed. I cite from the same passage in the 1606 English edition, which combined the French and Latin texts:

But it is one thing to bind all together [universos], and to bind every one in particular [singulos]: for so all the citizens particularly swore to the observation of the laws, but not all together; for that every one of them in particular was bound unto the power of them all in general. But an oath could not be given by them all: for why, the people in general is a certain universal body, in power and nature divided from every man in particular . . . in a popular state nothing can be greater than the whole body of the people themselves. ⁴¹

This distinction between the “universal body” of “the people in general” and “every one in particular” is what we find in the very paragraph where Rousseau referred to the law against self-obligation. An individual in a democracy stands in a “double relationship” to the state, Rousseau argued: with respect to other individuals, as part of the sovereign body, but with respect to the sovereign body, as a simple member of the state. Or as Rousseau summarized at the end of the previous chapter (immediately following the footnote where he cites Bodin), individuals “call themselves Citizens as participants in the sovereign authority, and Subjects as subjected to the laws of the State.” ⁴²

Rousseau was very particular about this terminology: “these terms are often confused and mistaken for one another,” he continues, “it is enough to be able to distinguish them where they are used in their precise sense.” ⁴³ In fact, his use of these terms provides yet further evidence that Rousseau was likely drawing on Bodin to elaborate his theory of popular sovereignty. Recall his criticism that Bodin had confused the status of bourgeois and citizens in Geneva. In that chapter of the République (1.6), Bodin had also argued that citizenship should be defined in terms of subjecthood—again, in terms that foreshadow Rousseau’s.

Bodin was a stickler for terminology as well, bemoaning how “we often times see great quarrels and controversies to arise as well betwixt princes, as citizens of the same town or city amongst themselves, for not understanding the difference of these words,” in reference to the terms subject, citizen, bourgeois, and foreigner. After reviewing multiple definitions of citizenship, and the various distinctions that states had introduced between citizens and bourgeois, Bodin ultimately concluded that the only “essential” feature of citizenship is “the acknowledgement and obedience of the free subject [franc suject] towards his sovereign prince.” He acknowledged that many states grant additional rights and privileges to their citizens, but because these benefits vary so much from place to place and even between citizens, they must be considered “accidental.” Ultimately, the only common denominator of all citizenship regimes was the loss of natural freedom and obedience to a sovereign ruler: “every citizen is a subject, since some of his liberty is diminished by the majesty to whom he owes obedience.” ⁴⁴

It might seem that Bodin’s definition was only designed for monarchic subjects. But he offered examples of its successful application to citizens of popular states. These citizens could—and typically did—enjoy additional privileges that were denied to other subjects (such as foreigners or slaves): “every subject is not a Citizen,” Bodin insisted, noting how in Antiquity, “the enfranchised slaves in Greece were not admitted to be Citizens although that they were of the same country, and natural subjects.” ⁴⁵ But since citizenship, even in popular states, did not necessarily grant sovereignty to all citizens, sovereignty could not be an essential feature of citizenship. Conversely, the citizen of democratic Athens was just as much “a free subject holding of the sovereignty of another [tenant de la souveraineté d’autruy]” ⁴⁶ as was the citizen of monarchic France. In the first case, the “other” was the demos (which Bodin referred to as populus or cité), whereas in the case of France, the “other” was the king. Therein lay the superiority of this definition, in Bodin’s eyes: it applied to all forms of government (unlike, say, Aristotle’s). ⁴⁷

Most scholars today emphasize Rousseau’s more Aristotelian conception of citizenship, according to which the citizen owes his freedom to “the right to participate in deliberative or judicial office.” ⁴⁸ It is certainly the case that Rousseau narrowed the definition of citizenship and articulated an exclusively republican conception of sovereignty. Given the importance of his contribution, we accordingly tend to focus on the participatory aspect of his theory—that is, on how laws are made. But in so doing we risk downplaying an equally essential point, which is how laws are obeyed. To be sure, the European subjects of Rousseau’s age knew well how to obey—after all, they were “everywhere in chains.” But this common form of obedience was not based on the legitimate exercise of power. Just as Rousseau sought to devise a just theory of political autonomy, so too did he seek to develop a just theory of political obedience. And in Bodin, he found both. What’s more, in Bodin these two arguments were intertwined, as they would be for Rousseau. Indeed, when it came to defining freedom, Rousseau again combined participatory citizenship and subjecthood: “obedience to the law one has prescribed to oneself is freedom.” ⁴⁹

The Social Contract was not, in fact, the first text where Rousseau had insisted on the dual identity of citizens in a democracy. In his Lettre à d’Alembert (1758), Rousseau had contrasted monarchies with democracies, noting how for the latter “subjects and the sovereign are simply the same men considered under different relations.” ⁵⁰ Already in this text, then, we find the idea that democratic citizens must also be conceived as subjects. But the fact that this idea appeared earlier in Rousseau’s work, albeit in a less defined form, does not call into question its origins in Bodin’s République, since Rousseau was clearly familiar with that work when he wrote the Lettre. Not only had he repeatedly referenced Bodin in his earlier “Economie” article (1755), but he again cited Bodin (favorably) in the Lettre, in a footnote found on the page before this quote (referencing Bodin’s comments on taxation). ⁵¹ It is only with The Social Contract, however, that we can identify more precisely the passages in Bodin with which he was engaging.

The citizen/subject duality is essential for Rousseau’s theory of democratic sovereignty, as it provides him with a means to upend standard definitions of the state. Indeed, his compatriot and political rival in Geneva, Jean-Jacques Burlamaqui, had defined the state in a way that ensured a separate, superior monarchic or aristocratic sovereign: “we can define the state as a society in which a multitude of men are united together under the dependency of a sovereign, so that by his protection and care, they can secure the happiness to which they naturally aspire.” ⁵² This definition was recycled in the Encyclopédie article “État.” ⁵³ By redefining the state in terms of popular sovereignty, but maintaining the citizen/subject distinction, Rousseau was both able to overturn the antidemocratic bias of these earlier definitions and to put forward a normative model of democratic sovereignty. The key conceptual pivot for this argumentative move, however, came not out of natural law or social contract theory but from Bodin’s account of the popular state. If scholars have missed this critical borrowing, it is in no small part because Bodin is seen as the least likely author to have developed a theory of popular sovereignty. But as Daniel Lee has convincingly shown, “despite his (undeserved) reputation as a royal absolutist, [Bodin] actually turns out . . . to be perhaps the most important theorist of popular sovereignty.” ⁵⁴ Rousseau’s own debt to Bodin certainly goes a long way in validating Lee’s claim.

Recognizing this debt has major implications for how we read Rousseau, and even raises questions (which can only be alluded to here, for reasons of space) about political liberty in early-modern Europe. One of the most influential definitions of republican liberty comes from Quentin Skinner, who drew on Roman sources to define freedom as nondomination. ⁵⁵ Annelien de Dijn has adapted this argument to Rousseau, arguing that he “believed freedom as non-domination to be the most important political value.” ⁵⁶ But the strength of this claim must be weighed against its Bodinian counterpoint, according to which subjection (i.e., domination) is an equally critical component of freedom. In the above-quoted line, “obedience to the law one has prescribed to oneself is freedom,” the “one” who obeys is not identical to the “one” who prescribes. ⁵⁷ As in the Roman Republic, the individual only participates in the law-making process as a member of the collective citizen-body. In a well-functioning republic, moreover, there should be little legislative activity, hence fewer opportunities for the citizen-body to gather. ⁵⁸ Accordingly, our primary political experience is not that of the lawmaking citizen but rather of the law-abiding subject, whether or not we personally prescribed the law. That is the meaning of Rousseau’s (in)famous phrase, “he shall be forced to be free”; ⁵⁹ the individual citizen whose contributions to the legislative process were rejected (or who may not even have contributed) must still follow the law that others, in this case, are prescribing against his will. It is in this regard that domination is a necessary condition of political liberty. It is not an arbitrary form of domination, but it is domination all the same.

Baldus, Althusius, and Corporatist Theories of the State

The discovery of Rousseau’s debt to Bodin opens up the prospect of an even longer genealogy of popular sovereignty. Indeed, Bodin did not develop this theory of the citizen’s dual identity independently. As Lee himself notes, “Bodin offers a theory of the popular state that relies on a typical argument derived from medieval corporatist thought to get around this problem.” ⁶⁰ Bodin was merely restating arguments that civilian and canonist lawyers had been formulating for the past two centuries. Indeed, Bodin’s debt to corporatist law is evident throughout the République: in an earlier chapter, for instance, he notes how “the Lawyers, and lawmakers (whom we ought as guides to follow in reasoning of a Commonweale) . . . have in the same treatise [en une mesme science] comprehended the laws and ordinances of a commonweale, corporations, colleges, and families.” ⁶¹

One of the lawyers whom Bodin refers to repeatedly is Baldus de Ubaldi. Baldus was the star student of Bartolus de Saxoferrato, who pioneered the civil law school known as the Commentators, which flourished in fourteenth-century Perugia. ⁶² Bartolus is perhaps best known for having justified the de facto freedom of northern Italian city-states from the imperium of the Holy Roman Emperor. ⁶³ Baldus, who after the death of his teacher would become the most renowned jurist in Europe, continued this inquiry into how city-states exercised sovereignty. ⁶⁴ Since each free city (civitas) could legislate without requiring the emperor’s consent, its source of sovereignty must come from elsewhere. Drawing on Roman law, and in particular the lex regia, Bartolus and Baldus naturally concluded that it had to originate in the populus. This theory of popular sovereignty, Skinner argues, “was destined to play a major role in shaping the most radical version of early modern constitutionalism.” ⁶⁵

One of the ways that Bartolus and Baldus understood and explained the government of a free city was in terms of a corporation, or (to use the standard Latin term) universitas. ⁶⁶ For medieval and early modern jurists, corporations were “good to think with,” as Lévi-Strauss would say. ⁶⁷ Groups as different as cathedral chapters, universities, collegial courts, and guilds could all be described according to the same corporatist logic. And corporations came in all shapes and sizes, from the smallest school to the Catholic Church.

The most notorious feature of corporations is their personhood. ⁶⁸ Through the legal fiction of a persona ficta, corporations could sign contracts, own property, and negotiate with other corporations. Scholars of political thought have highlighted the importance of this corporatist persona ficta for early-modern theories of sovereign personhood, especially Hobbes. ⁶⁹ The “person of the state” was an abstraction, which could be embodied in an individual (thus giving rise to “the king’s two bodies”), or a collective group. In Ambrogio Lorenzetti’s “Allegory of Good Government,” the Republic of Siena is personified as a princely ruler. ⁷⁰ As Baldus would write, populus est suorum ciuium princeps (the people is the ruler of its citizens). ⁷¹

But Baldus also insisted that the civic princeps was not merely an abstraction and could be realized in the assembly of its citizens. As Lee explains, for Baldus, “the members themselves—when ‘rightly assembled’ [congregatur bene]—are perfectly capable of acting for the whole corporation, not in their private individual capacities, but together as a ‘corporate person’ [persona universalis] by the expression of the corporate will through their collective consent.” ⁷² Baldus thus assigned to the individual members of the civitas the same kind of dual identity as Bodin and Rousseau. “As the corporeal members of the corporation,” citizens could be construed as “partakers in sovereignty,” but “the citizens taken as individuals are in the position of subjects in relation to the populus as a corporate whole,” noted Joseph Canning. ⁷³ In a corporation as in a city-state, members were sovereign and subjects at the same time. The corporate person merely represented the members. As Rousseau himself would later observe, “the State or the City is only a moral person whose life consists in the union of its members.” ⁷⁴

Baldus’s major innovation was to apply corporatist law to the political theory of free city-states. ⁷⁵ But the key corporatist principles that he applied had already been developed in the context of other, nonpolitical corporations. For instance, the university—the only type of universitas that has kept this generic name—could appoint a rector to represent its members, but the body of faculty or students collectively exercised governance in some areas, and individual members had to obey the rules and regulations of the corporation. Religious congregations decided on important matters by majority vote, assuming a quorum was present. ⁷⁶ What Baldus described in theory was already a well-established practice in many Italian free cities.

The ubiquity of corporate bodies in medieval and early-modern Europe thus presents a challenge to historians of political thought. While Bartolus and Baldus exercised a tremendous influence on later political thinkers, as Bodin’s numerous citations to their works indicate, actual corporations and corporatist law continued to serve as a model for political theory long after Baldus. It seems likely that Bodin drew on Baldus to develop his arguments about popular sovereignty, but he could have picked up this corporatist reasoning in many places. ⁷⁷

The challenge of reconstructing genealogies of specific political concepts becomes all the greater when the timeframe is extended across centuries. For instance, Gierke himself called attention to the corporatist aspects of Rousseau’s political ideas but traced them back to a different thinker, Johannes Althusius. ⁷⁸ Althusius, a Calvinist jurist who served in the government of the German city of Emden, was the author of the Politica Methodice Digesta (1603), a treatise that defended the popular sovereignty of free cities. ⁷⁹ Althusius made the corporatist origins of his political thought explicit in the structure and argument of his book. He followed the standard Aristotelian narrative of social development, beginning with the family as the basic unit of association and ending with the city. At a crucial intermediate stage, Althusius placed the collegia, or corporations “organized by assembled persons according to their own pleasure . . . to serve a common utility and necessity in human life.” ⁸⁰ He offered a brief overview of medieval corporatist law, notably discussing the fundamental superiority of the collectivity over the rector, and the decisive use of majoritarian voting, provided that the traditional two-thirds quorum is obtained. ⁸¹ Practically all of society is organized into collegia, Althusius concluded: “there are collegia of bakers, tailors, builders, merchants, coiners of money, as well as philosophers, theologians, government officials, and others that every city needs for the proper functioning of its social life.” ⁸²

And it is these collegia, Althusius argued, that provide the blueprint for political bodies: “human society develops from private to public association by the definite steps and progressions of small societies.” ⁸³ The political community is a universitas, he insisted (again, using the generic term for corporation). It can be represented as a persona ficta, who can be embodied in an elected superior, or magistrate. As in a private collegium, however, the superior “exercis[es] authority [jus] over the individuals but not over the citizens collectively.” ⁸⁴ The voting method in political councils, such as the senate, is identical to that in collegia. ⁸⁵

In most of these passages, Althusius was simply summarizing medieval corporatist law and practices, as his references indicate; he cites Bartolus, Baldus, and (especially) Bodin, among other authorities. It is accordingly very tricky to determine the extent to which Althusius, more than any other writer on this topic, exerted a later influence on Rousseau. It is true that there are ressemblances between Politica and The Social Contract, but Gierke’s claim that “Rousseau found [in Althusius] the ingredients already prepared from which he brewed his baneful potion” is nearly impossible to verify. ⁸⁶ The textual evidence, moreover, is quite slim; Rousseau only cites Althusius once, in a text that postdates The Social Contract, the Lettres écrites de la montagne (1764). Nor was Althusius a common reference in eighteenth-century France: while Bayle dedicates a short article to him in the Dictionnaire historique et critique (first edition, 1697), Althusius makes a single appearance in the Encyclopédie (s.v. “Halberstadt”). The Politica was not republished in the eighteenth century.

Rousseau’s intellectual debts must accordingly be divided into two different categories. There are certain phrases, ideas, and arguments that can be retraced, with philological precision, back to specific passages of other authors. I would argue that this is the case for the terminological and conceptual borrowings from Bodin, even if these ideas were not original to Bodin. In other cases, however, Rousseau was drawing on the more diffuse legacy of corporatist thought (as well as on continuing practices, as we will see). Gierke was correct in general, if not in the particulars: the central importance of corporatist law for political thought, beginning with medieval jurists, lasted all the way up to the modern theorists of popular sovereignty. ⁸⁷

One lingering question remains. How conscious was Rousseau about the corporatist origins of some of his ideas? ⁸⁸ Was this intellectual tradition still vibrant in the eighteenth century, or was Rousseau picking through its ruins, unaware of its past? There is in fact significant evidence in The Social Contract that Rousseau was acutely cognizant of corporate models for political bodies. By the eighteenth century, however, the prime model of the corporation was no longer the religious congregation or the guild; it was the commercial company.

Rousseau’s Corporatist Model of Political Societies

It is surprising that scholars have paid scant attention to the corporatist arguments in Rousseau’s thought, given that The Social Contract brims with the vocabulary and logic of corporations as they were defined and understood in the eighteenth century. Consider the passage where Rousseau sums up the theoretical problem he is seeking to resolve:

“To find a form of association that will defend and protect the person and goods of each associate with the full common force, and by means of which each, uniting with all, nevertheless obey only himself and remain as free as before.” This is the fundamental problem to which the social contract provides the solution. ⁸⁹

This passage, and more broadly the chapter in which it is found, is so canonical that we can easily miss the particularities of the language Rousseau employs here: “Association” and “société.” In the previous chapter, Rousseau drew a distinction between an association and an aggregation. ⁹⁰ The latter was the name he gave to a collection of individuals who had been subjected by a single ruler (“soumettre une multitude”). In Rousseau’s view, that kind of collectivity was not even a legitimate body politic: “I see in this nothing but a master and slaves, I do not see in it a people and its chief.” ⁹¹ Rousseau’s challenge was to identify a “form of association” that did not have this vertical structure and that resolved the collective action problem in a normatively legitimate way.

An “association” thus implied a particular kind of social organization. ⁹² And in eighteenth-century French, the word typically referred to a commercial company. Indeed, the first Encyclopédie article for “Association” defines the word as “the act of associating, or of establishing a society [société] or company. See under, Associate, Society, Company, &c.” A subsequent article, with the same headword, added that in common law an association

is strictly speaking a contract or treatise [traité], through which two or many people unite together, either for mutual assistance, or to better do business, or to live more comfortably. The most stable of all associations is that which occurs through marriage. ⁹³

In addition to the commercial company, whose members united “to better do business,” this essay thus acknowledged another example—the family, structured around the marriage contract. Rousseau had considered it, too, but, like Locke before him (and unlike Althusius), rejected the family as a possible model for political societies in an earlier chapter. ⁹⁴ All that was left as a valid “form of association” appeared to be corporations.

There was another reason to look to private companies as the model for political society: they preceded it. Indeed, even before the state came into existence, individuals organized themselves into fairly complex social structures, including corporations. Up until the moment when the state is created, Rousseau does not stray that far from the standard Aristotelian narrative, which was repeated in countless places (notably in Althusius and Pufendorf), and which he himself sketched out in the Discourse on Inequality. ⁹⁵ As he noted in his 1755 Encyclopédie article “Economie,” these private, smaller associations offered a solution to the “fundamental problem” of political society (or société in the singular):

Every political society is made up of other, smaller societies of different kinds, each of which has its interests and maxims. . . . It is all these tacit or formal associations which in so many ways modify the appearance of the public will by the influence of their own. The will of these particular societies always has two relations; for the member of the association, it is a general will; for the large society, it is a particular will, which very often proves to be upright in the first respect, and vicious in the second. ⁹⁶

These prepolitical corporate entities had already resolved two of the key challenges confronting any legitimate political association. First, their members had in a “tacit or formal” manner agreed to administer at least some of their property jointly. Indeed, pooling resources was a defining feature of corporations: “The companies [sociétés] that are formed among merchants or individuals are a convention between two or many people, by which they pool [mettent en commun] all or some of their goods,” wrote Boucher d’Argis in an Encyclopédie article on “société” in law. ⁹⁷ This joint administration of resources was one of the key problems that Rousseau had identified for political societies to solve (“a form of association that will defend and protect the person and goods of each associate with the full common force,” emphasis added). Society at large may have become the horizon for philosophical thought during the Enlightenment, but particular, voluntaristic societies continued to inform how the philosophes understood it. ⁹⁸

Second, these private companies had also figured out how to combine their wills into a “general will.” To be sure, the general will of a corporation was not identical to that of the people at large; Rousseau even describes it as “vicious.” ⁹⁹ But its viciousness was only relational; with respect to the polity as a whole, the general will of the company was unlikely to converge on an action that was beneficial (what’s good for General Motors might not be what’s good for the country). But this corporatist model was clearly a promising type of association for resolving collective action problems in a normative fashion, where “each of us puts his person and his full power in common under the supreme direction of the general will.” ¹⁰⁰ Commercial societies should not be entrusted to govern the state, but their organizational structure was precisely the same one that Rousseau would recommend for a well-governed state.

It bears recalling that société maintained, in eighteenth-century French, a technical, legal definition that was rooted in Roman law and was particularly important for commercial activity. In his influential Dictionnaire universel de commerce (pub. 1723), Jacques Savary des Brûlons defined “société” as a “Contract, Action, or Treatise between two or many people, by which they bind themselves for a duration of time, and agree to share the profits and bear losses equally.” He further adds that the basis for contract law is to be found in “Roman law” and that “the rules that Roman law prescribed for companies [Societez] are so beautiful & so aligned with equity and reason,” before summarizing them at length. While he recognizes that “there are many different kinds of companies [societez], between different people, and for various subjects”—in other words, there are many sorts of corporations—he focuses on the different kinds of commercial societies that are in existence, from the “société générale” to the “société anonyme.” ¹⁰¹

“Associé.” Rousseau employs this term four times in this chapter. Even more than “association,” associé was a fairly technical term used mainly in a commercial sense. ¹⁰² The relevant article in the Encyclopédie reads: “Associate, in commercial terms, is one who contributes to the general funds with the other merchants [commerçans], and shares the profits with them, or suffers the losses in proportion to his contribution.” ¹⁰³ Associé was the name given to members of a corporation who had merged their resources. ¹⁰⁴ Again, the creation of a corporate entity by its associés closely resembled that of Rousseau’s political society: “Every associate must consent in order to establish a company [former une société]”; “a company [société] can be contracted in writing or even without writing, through a tacit agreement,” we read in the Encyclopédie. ¹⁰⁵ Just like political societies, private corporations were voluntaristic organizations, requiring universal consent at their moment of origin. And no associé could act in the name of the corporation without consensual permission to do so: “An associate cannot do anything that goes against the will of the others, nor act on their behalf, unless so charged by them,” continued the Encyclopédie article on corporations. ¹⁰⁶

“Contrat.” While Rousseau inherited the concept of a social contract from earlier political theorists, it is worth underscoring that he uses the term very literally, emphasizing, for instance, how “the clauses of this contract are so completely determined by the nature of the act.” ¹⁰⁷ While the contract could be tacit, the model here was a formal, most likely commercial or corporate, contract, which detailed the precise conditions of the agreement. Indeed, one of the terms for a corporate charter, in eighteenth-century French, was a contrat d’association (“associative contract”). ¹⁰⁸ Other terms, such as traité, were similarly defined as a species of contract. ¹⁰⁹ Finally, it is worth noting that Rousseau’s contract has the same productive effect as a corporate charter: it produces “a moral and collective body” and a “public person.” ¹¹⁰ Here again, Rousseau may have been drawing either on existing corporate practices or on earlier social contract theory, which similarly took as its model corporate charters. For instance, Locke refers to “this original compact, whereby he [every man] with others incorporates into one society.” ¹¹¹

It may seem paradoxical to suggest that commercial societies could serve as a model for Rousseau’s political body. After all, Rousseau was perhaps the most critical among Enlightenment philosophes of commerce and its effects on individual and social morality. ¹¹² I am not suggesting that this identification of a corporatist model for Rousseau’s political thought forces us to reconsider his broader attitude toward commerce. Rather, I would argue that its presence even in Rousseau is an indication of how inescapable corporatist logic was to early-modern efforts for thinking through collective action problems. The corporation was the best studied (in theory) and most common (in practice) example of how to create and govern a social or political body. It should not come as a surprise, accordingly, that it continued to serve as a model for Rousseau.

Conclusion: The Roman Roots of Popular Sovereignty

Gierke’s insight that (in Frederick Maitland’s words), “There seems to be a genus of which State and Corporation are species,” accordingly holds true not only for the medieval period but up through the eighteenth century. ¹¹³ The lasting power of corporatist law derived both from ongoing (if evolving) social practices and from medieval and early-modern political thought. But it can also be seen as yet another legacy of Roman political thought. ¹¹⁴ Indeed, one of the most famous definitions of political society in the eighteenth century had been handed down from Cicero. When Rousseau highlighted the “great difference between subjugating a multitude and administering [régir] a society,” ¹¹⁵ he was likely echoing Cicero’s claim in De re publica that “a people is not any collection of human beings brought together in any sort of way [non omnis hominum coetus quoquo modo congregatus], but a gathering of people in large numbers associated in an agreement with respect to justice and a partnership for the common good [coetus multitudinis iuris consensu et utilitatis communione sociatus].” ¹¹⁶ Although the text of De re publica was only rediscovered in 1819, this famous definition had been preserved by Augustine, who emphasized how for Cicero any state that lacked this grounding in justice and the common good was simply no state at all. ¹¹⁷ Bodin translated this definition into French; in the eighteenth century, it was repeated by Barbeyrac, in a note to his translation of Grotius; Burlamaqui likely took it from Barbeyrac; and from there, it made its way into the Encyclopédie (s.v. “État”). ¹¹⁸ Armed with this definition, Rousseau could simply brush away as illegitimate all states that were not originally founded on “principles of political right,” since “force does not make right, and . . . one is only obliged to obey legitimate powers,” not highwaymen (“a brigand . . . at the edge of a woods”). ¹¹⁹ Interestingly, Bodin had made the same argument: legitimate force was antithetical to “le droit du plus fort, & des voleurs.” ¹²⁰ Bodin may in fact be the first to have used the expression “droit du plus fort” in French (I could find no earlier instance).

While Cicero only used the past participle sociatus in his famous definition, in numerous other places he defined the state more precisely as a iuris societas, or “partnership in law.” ¹²¹ Eighteenth-century French readers could not fail to notice a striking similarity between Cicero’s societas and their own société. But this cross-linguistic and transhistorical pairing had a curious effect. A societas was a particular type of partnership, generally limited in Roman law to commercial transactions. ¹²² (It also loosely translated the Greek koinonia, the term that Aristotle had used to define the state. ¹²³ ) In medieval canon law, the societas was viewed as distinct from a universitas; it was specifically not a species of corporation. ¹²⁴ But by the eighteenth century, société had become the generic name for all sorts of corporations—religious, municipal, legal, and scholarly. ¹²⁵ Rousseau is thus likely to have credited Cicero with a much more corporatist understanding of the state. The “society of men assembled to live well and happily” (Bodin’s translation of Cicero’s phrase) was an association that, in the corporatist account given by Baldus and transmitted by Bodin, was much more democratic than Cicero’s societas. If, as Gierke had noted, the origins of the corporatist account of the state extend back to Roman antiquity, it was not always the same corporatist account. ¹²⁶

If corporatist theory proved such a productive model for political thought, it was largely thanks to its flexibility. Defenders of monarchic sovereignty privileged the corporate persona ficta, to which the people (they argued) transferred their political power once and for all. But the democratic potential of corporatist law was equally, if not even more, promising. In practice, guilds, congregations, faculties, and merchant companies highlighted the voting rights of partners, or socii. ¹²⁷ The political force of this model became clear with the conciliarist movement, in which the “council” of the Church asserted its collective authority over the chief representative of the Church—that is, the Pope. ¹²⁸ Corporatist theory lay at the roots both of this foundational ecclesiastical movement, whose long-term impact extended into rights-based constitutional thought, and of republican defenses of free states. ¹²⁹ Unlike the Athenian, supposedly rowdy model of democratic government known to Europeans, corporate governance offered a familiar, orderly means for making decisions in common.

By the time Bodin was writing, however, these more democratic instantiations of corporatist theory had mostly faded from politics. The conciliarist movement suffered a major defeat at the Fifth Lateran Council (1512–17). ¹³⁰ And the most prominent popular republic in northern Italy, Florence, fell for the last time in 1530, becoming a grand duchy in 1569. It is unsurprising that Bodin did not grant popular sovereignty nearly the same attention as its monarchic counterpart; both his own predilections and political reality encouraged him to push it to the sidelines. But he could not ignore the historical record, nor the fact that ancient political thought dealt extensively with popular states. As a theorist who claimed to define concepts, most notably sovereignty, where previous scholars had failed to do so satisfactorily, Bodin could not not analyze popular sovereignty. And as his theory of sovereignty proved so influential, it is unsurprising that later theorists, such as Rousseau, would heed his account. Against his own political leanings, Bodin thus inadvertently breathed new life into the corporatist account of popular sovereignty and served as a conduit for later, modern theories of democracy.