Political Authority & the Rule of Law

Political Authority & the Rule of Law - Midterm 1 Study Notes

Goal of the Text: To define what “sovereignty” is, the foundation of political order and stability, and to establish clear principles for legitimate government.

Definition of Sovereignty:
- Sovereignty = "The absolute and perpetual power of a commonwealth."
- Absolute: Not subject to any other human power; cannot be limited by another person or institution.
- Perpetual: Continuous; not temporary like delegated authority.
- Sovereignty belongs to the sovereign (king, ruler, or body) and cannot be divided or shared without destroying the unity of the state.
- Unity: Sovereignty provides unity to the state and prevents anarchy.

The Sovereign:
- Above all positive (man-made) law but bound by natural and divine law (e.g., cannot command murder, theft, etc.).
- Creates and repeals laws but is not subject to them.
- Bound: Though absolute, does not mean arbitrary — must adhere to justice and the welfare of the people.

Endurity: Sovereignty must endure beyond any individual act; it cannot expire or be delegated for a term.

Consequences of Division: If sovereignty is divided (e.g., among king, nobles, assemblies), civil war or instability follows.
The sovereign alone commands ultimate authority in making laws, declaring war, appointing officials, etc.

The right to make and repeal laws without consent from anyone else is the defining mark of sovereignty.
Consultation with others (e.g., parliaments, estates, councils) does not diminish the sovereign’s ultimate authority.

Moral and Divine Boundaries:
- Natural and Divine Law: The sovereign must obey the law of God and reason.
- Contracts: Once entered into, are moral (and often legal) obligations for the sovereign (with subjects or foreigners).
- Property Rights: The sovereign cannot arbitrarily seize subjects’ property; ownership is protected under natural law.

Sovereign Powers:
1. Making and repealing laws.
2. Declaring war and making peace.
3. Appointing top officials and magistrates.
4. Hearing final appeals in judicial cases.
5. Minting money and setting its value.
6. Imposing taxes.
7. Granting pardons.
A commonwealth must have one ultimate decision-maker; divided power leads to civil discord.
Sovereignty may be vested in one person (monarchy) or in the people (republic), but never both.
Justice is derived from the sovereign’s decisions, yet the sovereign is obligated to adhere to natural and divine law.

Three Pure Forms:
1. Monarchy: Sovereignty vested in one person.
2. Aristocracy: Sovereignty vested in a minority or elite.
3. Democracy: Sovereignty vested in the majority of the people.
Stability: Monarchy is viewed as the most stable form aligning with divine order.
Risks of Other Forms:
- Aristocracy can lead to corruption.
- Democracy risks mob rule and instability.
Rejects mixed constitutions as an effective governance structure.

Sovereignty: Absolute, perpetual, indivisible authority of the state.
Legislative Power: Core mark of sovereignty; to make and unmake laws.
Limits: Bound by divine/natural law, contracts, and property rights.
Indivisibility: Power cannot be shared without destroying sovereignty.
Forms of Commonwealth: Preference for Monarchy due to stability and alignment with divine order.
Law vs. Custom: Law is the command of the sovereign; custom is the practice of the people.
Unity Principle: Sovereignty provides order; division leads to disorder.

Goal: Explain how selfish and fearful humans can achieve peace and order through civil society and sovereign power.

Equality: Physical and mental equality among humans leads to diffidence and competition, creating a state of nature.
Right of Nature (jus naturale): Every person has the liberty to preserve life by any means necessary.
State of Nature: Characterized by lack of a common power to enforce peace, resulting in violence.

Law of Nature (lex naturalis): Directing humans to seek peace.
- First Law: Seek peace and follow it.
- Second Law: Willingness to accept mutual restraint.
Justice: Keeping covenants; injustice arises from breaking contracts, but there is no enforcement in the state of nature.

Emergence of Civil Government: Results from the transfer of natural rights to a sovereign for protection and peace, leading to an absolute and indivisible power for the sovereign.

Sources of Sovereign Power:
- By institution: people voluntarily covenant to obey.
- By acquisition: people submit to a conqueror.
Obligation of subjects is based on protection; ceases if protection fails.

Sovereignty cannot be Accused: All acts of the state reflect sovereign authority.
Civil Liberty: Exists only in areas not regulated by law; limited by sovereign commands.
Political Role of Religion: Subordinated to civil authority to prevent conflict and maintain peace.
Dissolution of Commonwealth: Occurs when the sovereign cannot protect subjects or is overthrown.

Sovereignty: Both view it as absolute but differ on its foundations (Bodin on natural law, Hobbes on consent).
Limits: Bodin sees divine/natural law limits; Hobbes has none beyond self-preservation.
Religion: Bodin separates moral from religious laws; Hobbes subordinates religion to government.