Popular Sovereignty in the West

Geneviève Nootens

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135968298
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book is an inquiry into the history of the idea of popular sovereignty as it has been shaped by the struggles between rulers and ruled. It builds on the notion that a thorough analysis of how the idea of popular sovereignty emerges from, and interacts with, a political history of contention within changing polities can help us to draw similarities and differences with our own age.

Providing a historical perspective to the present day, Nootens pays strong attention to the role of democratization processes and to the relationship between meanings conveyed by the idea of popular sovereignty, political contention, and changing representations of the governing relationship. The latter has been undergoing significant transformations in the last decades, and these transformations impact significantly upon people's rights, interests, wealth, and capacity to decide for themselves. In order to understand popular sovereignty in an era of globalization, this book argues that focus should be put on current struggles between rulers and ruled, as well as on current transformations of the relationship between public and private spheres. Understanding the claims involved in current processes of contention over decision-making processes is key to understanding popular sovereignty in an era of globalization.

Making an important contribution to debates on sovereignty, Popular Sovereignty in the West will be of interest to students and scholars of modern political theory, sovereignty, and democratization studies.

1 The origins of the notion of popular sovereignty in the West

Brian Tierney relates that at the Council of Constance, in the course of debates on the issue of whether sovereignty is, by its inherent nature, divisible or indivisible, two extreme views – one papalist, one conciliarist – were presented, in late 1416. One was put forward by the master-general of the Dominicans; the other, by a spokesman for conciliar supremacy. It is this anonymous spokesman who, in the debate, defended the indivisibility of sovereignty, arguing that ‘By natural law […] no one could rule over a free people except by consent of the people’ and that ‘The pope exercised power only within the limits prescribed by the council’ (Tierney 1975: 251).¹ This, according to Tierney, made little impression on the more moderate conciliarists; but the argument in favor of indivisibility was taken up by later papalists, ‘who were quite happy to argue that the very idea of a divided sovereignty in the church was inherently self-contradictory, provided that undivided sovereignty was attributed to the pope and not to the council’ (Tierney 1975: 251). Tierney hence stresses that

[T]he idea of an indivisible sovereignty inhering in the ruler, the alternative concept of a dual sovereignty co-existing in both ruler and community, the relevance of this concept for arguments about rights of resistance, the idea of collegiate sovereignty, the further technical problems about the distribution of authority within a collegiate sovereign – these are all themes common to medieval canon law, to fifteenth century conciliarism and to seventeenth century constitutional thought.

(Tierney 1975: 254)

The history of the notion of sovereignty surely is a complicated one. For even if one were to agree that sovereignty is a modern idea, it has grown out of previous concepts, ideas, and debates about the source of political authority, the way such an authority is to be exercised, and the nature of the political community. One may hence see a connecting thread starting with medieval understandings of the Roman notion of lex regia, up to (at least) Lawson’s and Locke’s arguments that ultimate sovereignty – in the sense of constituent authority – is to be ascribed to the general community as an entity distinct from Estates or Parliament. Medieval understandings of the lex regia made the people the source of political authority; and the modern Western notion of popular sovereignty has developed upon that foundation. When we get to sixteenth- and seventeenth-century political theory and debates on the people’s consent, though, the idea of popular sovereignty begins to impact on the structure of systems of government, rather than merely referring to a vague and ancient consent by the people to alienate its original sovereignty to the ruler: with the Huguenots, a clear connection is made between the principle of popular sovereignty and the rights of representative institutions; Lawson was to deny ultimate authority to Parliament and to ascribe it to the general community as a legal entity distinct from it; and Locke took the sovereign people to be a majority of adult (male) individual people.

Such developments went hand in hand with political struggles between rulers themselves on the one hand, and between rulers and the people on the other. They also went hand in hand with significant changes in representations of the nature, role, and functions of the political community. Therefore, in searching to disentangle the ins and outs of the history of the idea of popular sovereignty, one also must explain how the sovereignty of the people is both distinct from, and related to, the one of the ruler and of the state. For example, when Bodin argues that sovereignty is indivisible, he is not talking about the constituent power of the people, nor about some ultimate coordinating rule recognized by the community; he is talking about the powers of government (Burns 1991: 298). Henceforth, he illustrates ‘the emergence of perceptions of the modern state, as an entity distinct from ruler and ruled and therefore as the location to which sovereignty might properly be ascribed’ (Lloyd 1991a: 354). In Bodin, it is the république as an entity in its own right, and endowed with distinguishing characteristics, which is the locus of sovereignty. But it is Hobbes who is usually considered to have provided for the first unequivocally modern conception of the state as a governmental authority differentiated both from the people and office-holders. One significant issue, therefore, is the tension between the thesis of the original sovereignty of the people and its sixteenth-century rival thesis of regal power, which was actually reinforced during the period by the concept of the state as the locus of legislative sovereignty (Lloyd 1991b). Later on, the model of the nation-state did for a while conceal such a tension, by making the state the embodiment of the sovereign nation. But whether the tension has vanished because the people are to be the authors of the law within a specialized political domain is far from obvious.

Finally, there are also some difficulties stemming from the fact that the very notion of popular sovereignty historically conveyed different meanings, from the idea that the ruler’s power derives from the people to the one that law is legitimate insofar as it is the product of the people’s decision-making. The former is a thesis on the origins (source) of political authority, and it does not necessarily impact on rule itself. The latter impacts on the exercise of authority, and entails consequences that are significantly different than the former, both normatively and with regards to institutional design.

This chapter focuses on how the notion of popular sovereignty appeared and then was revisited, from the medieval period to the early modern one. My aim is to sketch the main ideas involved in discourses and debates on the people’s ‘public’ power, and how they were recast from medieval understandings of the lex regia to the idea that the people rule. I do not pretend to sketch an original, novel thesis about the history of the notion of popular sovereignty, but merely to get a clearer picture of its origins and transformations. Hence, this chapter builds on major works in the field of the history of political thought (Skinner, Canning, Burns, Lloyd, amongst others) that have explained and developed the main landmarks of the early history of the Western idea that the people must have somehow consented to be ruled. The aim of this book is not to propose a novel thesis about the origins and meaning of popular sovereignty but rather to inquire into such a history in order to stress lessons to be drawn from an analysis of the intercourse on the struggles between the rulers and ruled, on the one hand, and political ideas, on the other. Hence, it is perfectly appropriate – and necessary – to start with major works in the field of the history of ideas.

The Roman notion of lex regia

Historians of political thought usually trace back the idea that the people is the source of political authority to medieval understandings of the Roman notion of lex regia. The dominant political message of the Corpus iuris – the codification of Roman law ordered by Justinian in the sixth century – is theocratic; but it also includes statements that indicate ‘the possession of authority by the Roman people’ (Canning 1996: 8). With regard to the origin of the imperial power, reference is made in the Corpus iuris to the lex regia (‘royal law’) ‘whereby the Roman people transferred its power and authority to the emperor’ (Canning 1996: 8). The lex regia was probably a later juristic construction meant to legitimize the imperial power. Canning argues that ‘it was meant to be the comprehensive enactment of a divinely appointed emperor’ (Canning 1996: 10). But it was nonetheless ambiguous about the ultimate source of legal and political authority. It ‘expressed the idea that the emperor’s power derived from the people, and thus provided a model for the popular source of governmental power to be elaborated later in the Middle Ages and the early modern period (Canning 1996: 9). However, it raised a significant problem concerning the origins of authority, since ‘its inclusion in the Corpus iuris meant that both divine and popular sources of rulership coexisted. These two sources could be seen as mutually exclusive, and the Corpus iuris itself does nothing to solve this problem’ (Canning 1996: 9). At the time of Justinian, the former of course overwhelmed the latter, and ‘the only echo of such an ultimately republican idea was to be found in the acclamation of a new emperor by the senate, army and people’. (Canning 1996: 9) However,

With the revival of Roman law studies in the high Middle Ages the mutual implications of the two sources of authority were to be more thoroughly explored together with the question of whether the lex regia had been revocable or irrevocable.

(Canning 1996: 9)

The question of the people’s authority, in the Corpus iuris, also arises in the treatment of customary law, and this is an issue that was to be crucial for the Middle Ages. There is in a section of the Corpus named the Digest a passage that identifies the will of the people as the constitutive element in custom. This passage ‘considers that the popular will makes both written laws (leges) and custom, and therefore holds that custom can abrogate a lex […] This was written by the second-century jurist Julian, and reflects the survival of republican ideas into the principate’ (Canning 1996: 10).² Although a constitution of Constantine directly contradicts this text, and although there is in the Corpus no suggestion that custom can revoke imperial law, in the late Middle Ages this passage ‘provided ammunition for the elaboration of theories of the autonomy, and indeed sovereignty of the people’ (Canning 1996: 10). Actually, and according to Franklin, in the high Middle Ages,

All of the civilians interpreted the lex regia […] to mean that the emperor’s authority derived from a grant of the community. Many […] held this grant to be revocable for cause on the ground of a private law analogy between the people as principal and the emperor as agent. And there were even some who believed that the people had retained, in principle at least, some share of legislative power.

(Franklin 1967: 118)³

Let us also stress that according to Reynolds – whose focus is not academics, polemicists, and lawyers, but rather lay ideas about collectivity⁴ – there are through the 900–1300 period constant references to consultation and consent (Reynolds 1997: xlvii). Respect for custom and justice, as well as for rank and authority, were embedded in medieval values, and ‘Respect for custom and justice meant that rulers, from kings to mere lords over peasants, were supposed to consult with the people under their authority’ (Reynolds 1997: xlviii).⁵

The recovery of Aristotelian political theory and the Italian city-republics

According to Canning, full-blown theories of government by the people were developed in the late Middle Ages, in the period after 1250, with the recovery of Aristotelian political theory. Such a recovery ‘introduced the concept of participatory citizenship within independent, self-governing city-states’ (Canning 1988a: 364).⁶ Even if both the Aristotelian concept of valid rule by the many and the Italian republics envisaged only a relatively restricted citizen-body, they nonetheless provided the theoretical basis for a thesis of government by the people (Canning 1988a: 364). The populist thesis was enunciated by Marsilius of Padua, amongst others, in Discourse One of his Defensor Pacis, which Canning interprets as an application of Aristotelian political principles to early fourteenth-century Italian city-republics. Jurists from the civilian scholarship also articulated a theory of government by the people that formed part of Bartolus’s thesis of the sovereign city-republic and was further developed by Baldus (Canning 1988a: 365). The idea that the people is the source of authority was also expressed in conciliarist thought more generally, whose basic idea was ‘that ultimate authority in the Christian community lay with the body of the faithful as represented by a general council of the church’ (Canning 1988a: 365). Conciliarism remained mostly a clerical movement, though, and it did not genuinely express the idea of government by the people.

The republican tradition of civic humanism expressed ideas of government by the people. Q. Skinner has offered a vivid description of the political and intellectual context in which those ideas developed in late medieval Italy. In their struggles against the German emperors, the cities of Lombardy and Tuscany succeeded in building ideological weapons that could be used to legitimate their continued resistance to their overlord. They claimed that ‘they had a right to preserve their “liberty” against any external interference’ (Skinner 1978a: 6). Skinner argues that when defending their liberty against the empire, the city propagandists had two distinct ideas in mind: the right of the cities to be free from any outside control of their political life (namely, an assertion of their sovereignty); and a corresponding right to govern themselves as they thought fit (namely, a defense of their existing Republican constitutions) (Skinner 1978a: 6–7).

The problem faced by the cities was that those claims had no legal force. The Roman civil code had come to be used as the basic framework of legal theory and practice, and legal interpretation had followed with absolute fidelity the words of Justinian’s Code, in which the emperor was regarded as the sole ruler of the world (Skinner 1978a: 8). In Roman law, cities were corporations subject to imperial confirmation for their legal rights; and the canonist tradition had not produced a theory of the sovereignty of the cities that could match its justification for the sovereignty of kings (Canning 1996: 168). For the cities to succeed in putting their claims against the emperor on a proper legal footing, a fundamental change had to take place in how their jurists interpreted the authority of the ancient books (Skinner 1978a: 8). Such a move was actually achieved by the beginning of the fourteenth century, in a reorientation whose most significant figure, according to Skinner, was Bartolus of Saxoferrato (1314–57). Bartolus wanted to reinterpret the Roman civil code ‘in such a way as to supply the Lombard and Tuscan communes with a legal and not merely a rhetorical defence of their liberty against the Empire’ (Skinner 1978a: 9). The result, according to Skinner,

was not only to initiate a revolution in the study of Roman law […] but also to take a large step towards establishing the distinctively modern concept of a plurality of sovereign political authorities, each separate from one another as well as independent of the Empire.

(Skinner 1978a: 9)⁷

Bartolus argued that the cities constituted sibi princeps (a prince unto themselves), because they were governed by free peoples wielding their own Imperium. This allowed him to give legal foundations to their claims against the empire (Skinner 1978a: 11). He deployed his idea that the cities constituted sibi princeps in order to vindicate the claim that they ‘possess liberty in the sense of being free from any lawful interference in the internal running of their political affairs’ (Skinner 1978a: 11); and he used the very same concept to vindicate the claim that the cities ‘must be free to choose their own political arrangements, and in particular to maintain their established style of Republican self-government’ (Skinner 1978a: 12).

Henceforth, Bartolus was able to justify the sovereignty of the city-republics because he ‘drew the full conclusions from the identification of consent as the constitutive element of both the people’s customs and its statutes’ (Canning 1988b: 469).⁸ From his point of view, the consent of the people could act as a complete alternative to the will of the superior, in the creation of law. Customary law, being made by consent, did not require the authorization of a superior. And statutes, since they were the product of the people’s express consent, were in consequence of the same force as custom (which expresses tacit consent); therefore, neither do statutes require the authorization of a superior. Hence, consent as the constitutive element of the people’s law led to the non-recognition of a superior. Attributing to the city, within its territory, the same powers of jurisdiction that the emperor enjoyed in the empire as a whole ‘completed the argument because the emperor, in civilian terms the model for sovereignty, was thereby supplanted. There was no clearer way of signifying the sovereignty of such cities in Roman law terms’ (Canning 1996: 169). In other words, Bartolus had adapted the established formula for a sovereign king into a form suitable for a corporate entity (the city-populus). It was Bartolus’s disciple, Baldus, who seems ‘to have been the first to use the concept of an avowedly natural and this-worldly political dimension for man’s activities’ and to have recognized city-populi as ‘autonomous powers of self-government without the need for the authorisation of a superior’ (Canning 1988b: 473).⁹

The contribution of Marsilius is also to be situated within the context of the struggles of the Italian cities for their liberty, but this time, against the Papacy rather than against the emperor. Lombard and Tuscan republics wanted to vindicate their liberty against the Church as well as against the emperor, and in orde...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1 The origins of the notion of popular sovereignty in the West
• 2 Ruler sovereignty, popular sovereignty, and state sovereignty
• 3 The functions of sovereignty
• 4 Sovereignty, the people, and the nation
• 5 Popular sovereignty, contention, and democratization
• 6 Popular sovereignty and plurinational democracies
• 7 Popular sovereignty in the age of globalization
• Conclusion
• Notes
• Bibliography
• Index