Daniel Lee's "The Right of Sovereignty"

Daniel Lee is Associate Professor of Political Science and Director of Graduate Studies in Political Science at the University of California, Berkeley. He specializes in political theory, the history of political thought, and jurisprudence. He is the author of Popular Sovereignty in Early Modern Constitutional Thought (2016) and the forthcoming A Division of the Whole Law.

Lee applied the “Page 99 Test” to his latest book, The Right of Sovereignty: Jean Bodin on the Sovereign State and the Law of Nations, and reported the following:

Page 99 of The Right of Sovereignty touches upon a central interpretive point concerning the function of sovereignty in Jean Bodin’s theory of the sovereign state. There are some who think sovereignty should be understood in terms of lawlessness, being above the law. Roman lawyers had a phrase for this that they recorded in the Digest of Justinian: ‘legibus solutus’ - roughly translating into something like being exempt from legal duties that are obligatory for everyone else. In the Middle Ages, jurists pushed this notion of lawlessness to its extreme, so that whoever is sovereign is free from any legal obligation - even, in principle, the bond of natural law. That was the extreme twist added by medieval canonists in describing the sovereignty of the Pope over all of Christendom. He becomes legally invincible.

But note that exemption doesn’t actually empower a sovereign to do anything. Suppose the State of California grants me all kinds of tax exemptions for 2022 so I don’t have to pay any taxes while everyone else does. I would technically be ‘legibus solutus’ with respect to those tax laws. That doesn’t mean I’m actually empowered to do anything to the tax laws. It’s one thing to be a beneficiary of a tax exemption. It’s another to be an author of tax legislation. How could I be sovereign if my tax exemption depends on someone else - say, a judge or a legislator - carving out that exemption for my benefit?

Sovereignty, thus, must be more than simply the exempt status of being 'legibus solutus.’ It involves something more, an active, creative power to make and unmake the laws themselves. This is perhaps one of Bodin’s most important and lasting interventions into the theory of sovereignty, and what I begin to explore on page 99 and for much of the rest of the book. Commentators on sovereignty sometimes fail to distinguish these two aspects of sovereignty - being free from the laws and having a power over the laws. But it makes the biggest difference in understanding what sovereign states - and only states - can do.

Learn more about The Right of Sovereignty at the Oxford University Press website.

--Marshal Zeringue