Power and the People
The relationship between sovereignty and the law is relatively straightforward. When it comes to politics, however, things are much more complicated.
The idea of taking back ‘control’ has come to dominate political debate in Britain. Much of the discussion has centred on the relationship between the United Kingdom and the European Union (EU). Indeed, the aim of achieving control substantially shaped the referendum on Britain’s membership of the EU. For the victorious Leave campaign, the promise of this kind of power resides in the restoration of sovereignty. Yet the analysis is based on a misunderstanding. While the future of Britain outside the EU is obviously hard to determine, one thing is certain: the possession of sovereignty does not guarantee the exercise of control.
The modern debate about sovereignty began with the French thinker Jean Bodin (1530-96). Having joined the Carmelite brotherhood as a monk in his early manhood, Bodin was released from his vows in 1549 and then opted to study law at the University of Toulouse. Much of his education involved attention to Roman law and included the humanistic study of classical texts in political and legal philosophy. It was out of these materials that Bodin developed his conception of supreme power.
In his most famous work, the Six Books of the Commonwealth, which originally appeared in French in 1576, Bodin presented a definition of sovereignty. He claimed that it was ‘the absolute and perpetual power of a commonwealth, which the Latins call maiestas [majesty]’. Later in his text, Bodin made clear that the Romans had yet other terms for sovereignty, summum imperium (ultimate authority) being conspicuous among them. Yet, while the Romans, like the Greeks and the Hebrews, had a conception of supreme authority, Bodin believed that they had not fully understood its implications. Above all, he insisted, they had failed to grasp that the highest power of command was indivisible. It could not be shared among competing powers in the commonwealth.
This meant in effect that, while a state might possess a mixed system of government, it could not be based on a system of ‘shared’ sovereignty. This insight has proved confusing to posterity, above all to admirers of the American constitution: since the United States can be seen as a mixed regime, surely its sovereignty is divided among the different organs of state? This thought was later used to characterise the European Union, too, which is similarly taken to exemplify the ‘pooling’ of sovereignty.
The idea that sovereignty could be shared was not only denied by Bodin; it was also refuted by subsequent theorists of the state. The English political philosopher Thomas Hobbes (1588-1679) presented one of the most powerful refutations of the idea that sovereignty could be held by more than one power. Hobbes thought of authority in terms of a right of ultimate legal determination. A final decision had to be precisely that: a judgement that could not be contradicted by a rival authority. Contradiction entailed conflict, which imperilled the stability of the state, opening up the prospect of a collision between powers.
The idea of sovereignty had been invented to forestall this eventuality. After completing his legal studies at Toulouse in the 1550s, Bodin worked as an advocate in the Parlement of Paris. For the bulk of his tenure as a public official, Bodin operated against the background of the Wars of Religion, which afflicted France between 1562 and 1598. Aristocratic houses competed for power in the name of religion, undermining, as Bodin saw it, the majesty of the monarchy. Sovereignty was a recipe for overcoming this descent into factionalism, by subjecting divergent powers in the commonwealth to a single jurisdiction.
Confronting the emergence of competition between the English Parliament and Crown in the late 1630s, Hobbes similarly resorted to sovereignty as a bulwark against faction. All sovereignty, he believed, had to be based on the people’s will, yet it did not have to reside directly in their hands. Supreme authority, in fact, might legitimately be the property of a monarchy, an aristocracy or a democracy. It was this conclusion that was challenged most cogently by the Swiss philosopher Jean-Jacques Rousseau (1712-78), who limited legitimate sovereignty to the democratic form of state. He thought that the social compact underlying any valid political association gave rise to a collective body composed of the totality of the citizen body. This amounted to arguing that the general will alone – and not the will of some part of the community – should determine the common good of all.
Rousseau’s model of direct popular sovereignty, according to which the people themselves should act as the source of the fundamental laws of the community, has had a complex impact on political debate since the publication of his work The Social Contract in 1762. On the one hand, the idea of direct popular ratification has increased its appeal since the middle of the 18th century. On the other hand, the fate of popular participation has been a mixed affair, sometimes resulting in the abuse of power. This suggests that popular sovereignty should be sharply distinguished from popular control. An ultimate right of ratification or final plebiscitary authority is very remote from substantial political power.
In many ways this outcome tells us something about the nature of sovereignty itself. The idea of a supreme juridical will is a very effective tool for understanding a legal bureaucracy, but it is altogether more questionable as a means of unravelling daily politics. In a court system, based on a hierarchy of judgements, the highest jurisdiction has the final say. However, in political life ultimate authority depends on popular compliance. Sovereignty, in this case, does not mean control; it cannot bridle the forces of opinion or determine the course of events. Bodin introduced an essential concept into our political vocabulary, one which clarifies much about the legal basis of public life, yet it is hardly adequate as a theory of political power in general.
Richard Bourke is Professor in the History of Political Thought at Queen Mary University of London and the co-editor, with Quentin Skinner, of Popular Sovereignty in Historical Perspective (Cambridge, 2016).