03博丹

3. Bodin让·博丹（Jean Bodin, 1530-1596），16世纪法国伟大的政治思想家，近代国家主权学说的创立者。

博丹所生所处的是一个动荡不已的时代。

16世纪下半叶，法国国内的天主教徒和新教徒（胡格诺教派）为争夺政治权力，多次发生内战，而每次内战又会引起外国干涉。

在这种情况下，温和的天主教徒与温和的新教徒组成一个“政治家集团”，他们中的理论家提出，法国迫切需要重建国内秩序，实现社会安定，为此，必须确保国王至高无上的权威，国王必须强大到足以将法律强加于国内其他所有的人。

博丹是政治家集团的重要成员和理论家。

他目睹了长期的宗教战争对国家和人民造成的重大危害，认为要保全法国的完整和安全，必须实行宗教宽容，所有法国人都必须放弃激进主义而选择“一种现实的稳定”，此即强大的王权。

为此，他于1576年发表《论国家六书》（Six Books on the State），从世俗的角度，首次系统而详尽地阐述了国家主权理论。

他写道：“主权是国家的绝对和永久的权力，是最高统治权。

”他说，主权概念是理解国家实质的最主要的和最重要的一点，一旦人民将这种绝对权力授予一个人——博丹倾向于国王，那么他就是一个主权者。

除了上帝，没有人拥有比他更大的权力。

博丹还具体阐述了主权的绝对性、永恒性、不可侵害性和不可转让性，指出只要国家存在，主权就存在。

博丹的国家主权思想提出后，陆续为欧洲政治思想家广泛接受并传播，从而为各国的君主专制统治提供了理论依据。

它对现实主义的影响亦是不言而喻的。

本篇选自《论国家六书》。

The SovereigntyThe state is a lawful government, with sovereign power, of different households1 and their common affairs. We put this definition at the outset because in all things, it is necessary to look first for the chief end, and then for the means of attaining it. A definition is nothing else than the end of a problem that is being considered, and unless it is well founded, whatever is based upon it will soon collapse.Let us now examine each part of the definition of the state. In the first place, we speak of the state as “lawful government” in order to distinguish it from bands of robbers and pirates, with whom it can have no part, commerce, or alliance. In all well-ordered states, therefore, robbers and pirates have always been excluded from recognition, whether it be a question of making a pledge in negotiating peace, calling off war, setting up offensive or defensive alliances, defining boundaries, or settling disputes between kings and territorial rulers.2The law of mankind sharply differentiates between wartime enemies who maintain lawful government in their states, and brigands and pirates who seek to subvert and destroy them.Sovereignty is the absolute and perpetual power of the state, that is, the greatest power to command. It is necessary to arrive at a definition of sovereignty because neither jurists nor political philosophers have so far defined it, although it is the principal and most urgent point for an understanding of the nature of the state. Having said before that the state is a lawful government, with sovereign power, of many households and their common affairs, the meaning of sovereign power mustnow be explained. I have said that this power is perpetual, for absolute power may be given to one or several for a certain time only, at the end of which they are subjects again. While they are in authority they still cannot call themselves sovereign rulers, inasmuch as they are only custodians and keepers of sovereign power until it shall please the people or the prince to recall it, just as those who have lent or pawned their goods to others remain the true owners and possessors. Likewise, those who give to others the power and authority to judge and command for a defined period of time, or to be recalled at pleasure, retain power and authority that the others exercise but in the nature of a temporary lease or loan. The governor of a country or the lieutenant of a prince surrenders his power at the expiration of his term, being but the depository and keeper for someone else. It makes no difference whether the official is of high or low rank. If the absolute power granted to the lieutenant of the prince were sovereign, it could be used against the prince himself, who would be left with nothing but an empty title, and the subject would command his lord, the servant his master—which would absurd. Whatever power and authority the sovereign prince confers upon others, his own person remains excepted. He always retains more authority than he gives away, and he is never divested of his right to command and examine his officials by way of prevention, concurrence, or challenge, to withdraw their authority altogether, or to permit it to go on to the extent, and as long as, it shall please him.If the people grant annually absolute power to one or several citizens, without control or appeal, shall we say they possess sovereignty? Only he is absolutely sovereign who, after God, acknowledges no one greater than himself. These citizens elected to highest office therefore do not possess sovereignty, as they are but trustees of the power lent to them for a given time. The people do not deprive themselves of sovereignty when they entrust absolute authority to one or several rulers, either for a limited time set in advance or to be revoked at their pleasure. In both instances the holders of power remain accountable to those from whom they have received the power to command. This is not true of the sovereign prince, who is accountable to God alone.But suppose such absolute power be given to a king’s lieutenant for life. Is that not sovereign and perpetual power? Otherwise, if we should call perpetual power only that which never came to an end, sovereignty could exist only in aristocratic and popular governments that do not die. Or if the word “perpetual” would apply to a monarch and his heirs, there would be few sovereign monarchs, in view of the fact that only very few monarchies are hereditary, and in view of the fact those who arrive on the throne by the right of election would not be sovereign. “Perpetual” therefore means the lifetime of him who has the power. If the sovereign magistrate, elected for a year or for a defined time limited, continues to exercise the power that has been entrusted to him, he must do so either with the acquiescence of the governed or by force. If by force, the tyrant is sovereign, just as the violentpossession of the thief is genuine possession in nature, although contrary to law, and they who had possession before, no longer have it. But if the magistrate continues his sovereign power with the acquiescence of the people, he is not a sovereign prince, as he exercises it only on sufferance; he is even less sovereign if his term is not defined in advance, as he then holds whatever authority is his as a temporary trust and loan to be revoked at pleasure by the people.Let us now examine the second part of our definition, and ascertain what the words “absolute power” mean. T he people or the aristocracy in a commonwealth may purely and simply give someone the sovereign and perpetual power to dispose of their property and persons, and of all state, as it may please him, and afterward leave all to whomever he may choose; just as an owner may give away his goods purely and simply, without any cause other than his liberality. Such a gift is a true one, with no conditions asked or received, once the donation is transacted and accomplished, whereas gifts that are granted under charges and conditions are not true gifts. Likewise, the transfer of sovereignty to a prince with charges and conditions does not result in true sovereign authority or absolute power, except when the conditions thus attached to the creation of the sovereign are of divine or natural law.A prince is not bound by the laws of his predecessors, and much less by his own laws and ordinances. It is possible to receive a law from someone else, but it is impossible, in the nature of things, to give to oneself a law tha t depends on one’s own will, as is stated in the legal maxim: “There can be no obligation that derives its validity from the will of him who makes the promise.” This necessary reason evidently proves that the prince cannot be subject to his own laws. As the Pope never ties his hands, according to the canonists3, so the sovereign prince cannot tie his hands, even if he desires to do so. Therefore we see at the end of laws and ordinances the words “Because it has so pleased us”, in order to indicate that the laws of the sovereign prince, though they may be based on good and valid reasons, depend nevertheless on nothing but his pure and free will.As for the laws of God and nature, all princes in the world are bound by them, and they have no authority to violate them. In so doing, a prince would become guilty of high treason against God and of making war on him, under whose greatness all the rulers on earth must bear their yoke and bow their heads in fear and reverence. The absolute power of princes and lords in no way extends, therefore, to the laws of God and nature, and the Pope who has best understood the nature of absolute power and who has brought kings and emperors under his control said that a sovereign can abrogate ordinary law but not divine or natural law.But is a prince not subject to the laws of his country, which he has even sworn to keep? A distinction has to be made here between two possible situations: if the prince has sworn to himself that he will abide by his laws, he is no more bound bythem than by any oath made to himself, just as private citizens are not bound by oaths on agreements that the law does not consider binding, however honourable and reasonable they be. If the sovereign prince promises, however, to another ruler to keep the law that he or his predecessors have made, he is obliged to abide by them, if the other prince has an interest therein, although no oath was included in the promise. But when the ruler, to whom the promise has been made, has no interest in the matter, neither the promise nor the oath is binding.The same holds true if the promise has been made by the prince to his subjects, either before or after ascending the throne. Not that the prince is bound by his own laws or those of his predecessors, but anyone, ruler or subject, is obliged to keep his just covenants and promises, whether made under oath or not. Similarly, as a private citizen may be relieved of an unjust and unreasonable promise that grieves him too much and into which he has been beguiled by trickery, fraud, error, force, or fear, so as to cause him major damage, the prince, too, may be released from promises that affect the diminution of his majesty, if he is a sovereign prince. Our general rule thus remains, that the prince is not bound by his own laws or those of his predecessors but is obliged to keep his just and reasonable agreements, in the observance of which his subjects in general, or a particular private person, may have an interest.Law and contracts must not be confused. Law depends on him who possesses sovereignty, and who can bind all his subjects but cannot bind himself. By contrast, a contract is a mutual obligation between prince and subjects that binds them reciprocally, and it cannot be altered except by mutual consent. In this situatio n, the prince is in no way above the subject, except that, when the justice of the law he has sworn to maintain has ceased to exist, he is no longer bound by his word; this the subjects cannot do, in their private agreement, unless they be relieved by the prince.The sovereignty of the monarch is in no way altered or diminished by the calling together and deliberations of the estates. On the contrary, seeing all his people recognize him as their sovereign, he finds his majesty thereby enhanced and more illustrious. In such representative assemblies the princes are not unwilling to grant their subjects concessions and favors that they would not otherwise yield, as they are overcome by the requests, petitions, and just grievances of the people, suffering most often without the knowledge of the prince, who sees and hears but through the eyes, ears, and reports of others. We thus conclude that the principal aspect of sovereign rule and absolute power consists in making general laws for the subjects without their consent. Without looking at other countries, we have often seen in our own realm that general custom has been abolished by the edicts of our kings, without hearing the estates, when the injustice of common law and custom was clearly to be seen.But what if the prince forbids to kill, under the sanction of the death penalty, is he then bound by his own law? I say that such a law is not his, but the law of God and nature. In fact, he is more strictly bound by it than are his subjects, and cannot be freed from its obligation by the people or the senate, being held responsible by the judgment of God, as King Solomon4 said. Marcus Aurelius5 said that the magistrates are the judges of private individuals, the princes of magistrates, and God of the princes. Such were the views of two rulers who have been held among the wisest. I shall conclude with that of Antigon,6 king of Asia, who, on being told by a flatterer that all things were lawful to kings, said: “Yes, to barbarian and tyrannical kings.”The first characteristic of the sovereign princes is the power to make general and special laws, but—and this qualification is important—without the consent of superiors, equals, or inferiors. If the prince requires the consent of superiors, then he is a subject himself; if that of equals, he shares his authority with others; if that of his subjects, senate or people, he is not sovereign. The names of notables that one sees affixed to laws are not put there to endow them with authority but to serve as testimony and additional weight.Quoted from Jean Bodin, Six Books on the State, in William Ebenstein, ed., Political Thinkers: Plato to the Present (New York, 1960)1 household, 一家人，这里指a group of people, 含有“民族”之义。