CITIZENSHIP BY CONSENT: BODIN’S “CONSENT STANDARD”

What is necessary, therefore, is an explicit agreement for the civil bond of citizen­ship between sovereign and subject to materialize. Citizenship must somehow be contracted between the sovereign and subject, as consenting parties to a legally determined relationship.

But how can such consent be detected in a way that legally shows the validity of a civil obligation? In some respects, Bodin follows the standard juridical analysis as the Italian Commentators, and especially that of the great Perugian commentator on the civil law Bartolus of Sassoferrato. In his commentaries, Bartolus tackled the le­gal question of citizenship in the later medieval context of the Italian city-republics that, in the fourteenth century, began introducing legislation discriminating between citizens by birth and citizens by fiction, while prioritizing the former as the uniform model for citizenship.^[327] Such legislation reflected the increasing mobility of urban populations in Italy, giving occasion for jurists to explain the difference between a “true and original citizen” ∣c∕v∕.v verus et originarius] and a “created citizen,” one who has acquired citizenship by law. The conventional view was that a foreigner could certainly become a citizen, but only by a legal fiction, in the same way that one might legally become an heir by the legal fiction of adoption or legitimation.^[328] Such a “created citizen” might by fiction be “regarded as a true and original citizen” [ha­beatur pro cive vero et originario], even if he was not so by nature.^[329]

But for Bartolus, there was absolutely no difference between these two. All citizens always attain that status by civil law, never by nature.^[330] This was, in part, because citizenship [civitas] itself was not a natural category, but a civil one.

What is especially remarkable in the Bartolist analysis is the framing of natu­ralization in terms of contract. What makes one a citizen is the contractual act be­tween the immigrant and the receiving state, and for this reason, Bartolus describes such naturalized citizens as cives ex pacto^[332] As Julius Kirshner put it, it is this “marriage between contract and citizenship [which] represents [Bartolus'] most novel and fruitful contribution to the principle underpinning the law of acquired citizenship.”^[333]

Bodin largely follows the Bartolist analysis, but with a twist. For Bodin, all citizens are cives ex pacto, or citizens by contract. This is the case for citizens who seek to renounce ties to one state and bind oneself to another by an express contrac­tual act through some legal documentary form such as charters, letters-patent, or “letters of naturalization” as in the French case.^[334] But it is also the case for natural citizens, who are also regarded citizens by contract; it is with tacit consent, to be sure, but it functions as if it were a contract.

By tracing the origins and foundations of citizenship in contract and consent between the sovereign and subject, Bodin delivers what we might call a “consent standard” of citizenship, a doctrine that has the flavor of a modern liberal theory. And indeed, in some respects Bodin foreshadows ideas that would be central for modern liberal theorists such as Locke. But unlike later liberals, Bodin has a differ­ent purpose in mind. He underscores the basic idea that citizenship is ultimately a vertical notion of subjection in the classical Roman idea of shared imperium - in­deed, Bodin, like his Italian predecessors, makes no significant distinction between the civis and the subditus, other than to say that the “citizen” (as he understands it) is merely a particular kind of subject: a “free” or “frank” subject.^[335]

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