Unmaking law: Jean Bodin on law, equity and legal change

• Autores: Daniel Lee
• Localización: History of political thought, ISSN 0143-781X, Vol. 39, Nº 2, 2018, págs. 269-296
• Idioma: inglés
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• Resumen

  • Legislative power in modern jurisprudence is understood almost exclusively in terms of the power to make new laws. However, early modern jurists, such as Jean Bodin, regarded legislative power as consisting of two functions, not only the power to make laws, but also the power to unmake or abrogate laws. This article explores the implications of this twinned notion of 'making and unmaking' law in Bodin's thought — what I call the principle of legislative symmetry. I locate the source of Bodin's analysis in his technical use of the Roman law of obligations.Writing in the context of the early modern era of legal reform, Bodin recognized the need for sovereign states to free themselves, for reasons of equity, from entrenched ossified legal rules of antiquity. Sovereign states should not, according to Bodin's framing of the issue, be bound by the dead hand of the past. But as I argue, the sovereign power to effect legal change is introduced not so much as a defence of absolutism, as is commonly thought, but out of a desire for reinforcing the rule of law in the modern state.