SUBJECTION AS MUTUALLY CONTRACTED OBLIGATION

Bodin rejected the Aristotelian treatment of citizenship that defined the citizen in terms of civil rights of participation in the life of the polis in large part because it could not make sense of citizenship in states or empires - above all, the Roman Empire - where large diverse sectors of the population were legally disenfranchised from civil rights and yet still held the legal status of citizenship.

But if citizenship really was just a form of subjection, it remains to be seen what counted as subjection to a sovereign authority. For Bodin, subjection was fundamentally to be understood as a mutually-contracted obligation, a product of mutual consent, and thus to be regarded as a binding obligation between contracting parties, the subject and the sovereign. And so, he writes in the De Republica:

It may well be said that the priveleges [i.e., civil rights] make not a citizen, but the mutuall obligation of the soveraigne to the subject.”^[320]

What this means, in short, is that if citizenship is subjection, and subjection, in turn, is a kind of contracted obligation, then citizenship must legally have contractual foundations. It is an obligation that, as the jurists say, is technically “bilateral.” The obligations flow both ways, such that not only does the citizen owe civil obligations to the sovereign, but so does the sovereign owe obligations to the citizen.^[321]

There is a close parallel here between the feudal tie of vassalage and the legal tie of a civil obligation in Bodin’s analysis of contracted subjection. Just as a vassal is bound to obey his lord, so too is the citizen bound to obey the sovereign. But because it is a bilateral obligation, the sovereign is also bound by certain obligations to the civil subject, just as the lord is bound by certain feudal obligations to protect the vassal.

Bodin stresses that the contractual foundation of citizenship exists in much the same way that vassalage is created by a quasi-contractual act of homage and fealty, investing the vassal with a fief in exchange for aids or service to the lord:

In order to be made a beneficiary or a vassal, it is necessary that he be born into this condi­tion, or if he wishes to bind himself and give homage to another, it is necessary for there to be consent by both the superior and the inferior. So too, in being made a citizen, it is sufficient that one consent to the imperium of the one in whose territory he was born (one consents so long as one does not openly dissent), or if he moves somewhere else, it is necessary, before he is called a “citizen,” that he both subject himself to the imperium of the other sovereign, as well as be accepted by him.^[323]

Bodin introduces this comparison between vassalage and citizenship to underscore at least two points. The first concerns Bodin’s position on whether members of the high seigneurial nobility are citizens in the same sense as commoners who lack any feudal privilege or title. His answer is clear: There is no difference in citizenship status in a respublica, despite the civic inequality of rights and privileges perpetu­ated by the feudal system. There is but one generic uniform civil obligation that ties citizens, ranging from the highest seigneur to the lowest servile person.^[324]

His purpose for this is, no doubt, partly motivated by an anti-seigneurial atti­tude that pervades his writings: Bodin does not want the seigneurial nobility to get away with claiming feudal privileges and liberties qua vassals as grounds for ex­empting themselves from their civic obligation qua citizens to their sovereign.^[325] For Bodin, vassalage does not at all absolve them of the civil obligations that even the highest princely seigneur owes to the sovereign by virtue of his status as citizen - and this is because of the analysis he gives on subjection, in genere: feudal subjec­tion is simply a different kind of bilateral relationship from civil subjection.

Of course, despite the similarities, there is nevertheless a difference between the feudal subjection of vassals by lords and the civil subjection of citizens by sov­ereigns. A vassal is subject only by virtue of a fief held by grant of the lord. But because the obligation is tied to the fief (i. e., an obligation in rem), the obligation can be given up instantly just by giving up the fief, as Bodin suggests in various historical illustrations of vassals being released from their bond of obligation to their feudal lord through alienation. A citizen, by contrast, cannot unilaterally ex­empt himself from the civil bond he owes to the sovereign because it is a bilateral obligation: the consent of both parties is required for any change in the “terms” of the relationship between the sovereign and subject, including a termination of the relationship.

The second point is that one cannot derive from one status of subjection the obligations (or rights) attached to another. That you are a vassal does not mean you are also a citizen. Since feudal subjection is irreducible to civil subjection, infeuda- tion or investiture into a fief cannot by itself generate the civil obligations of citizen­ship that tie a subject to his sovereign. This is why a foreign vassal is not a citizen, even though such a foreign vassal is tied by certain obligations and by his act of faith and homage. Something else, therefore, is necessary for a foreigner - even a foreign vassal of high status - to take on the status of a citizen - or, in other words, to be “naturalized” and “created” or “made” a citizen. The potential confusion is to think that, because one is subject to another qua vassal, one is therefore also a sub­ject qua citizen. But this is an error in reasoning.

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