O direito de resistência na França renascentista

Alberto Ribeiro G. de Barros

Translated by Alberto Ribeiro de Barros
Translation from Kriterion, Belo Horizonte, v.47, n.113, p.99-114, June 2006.

ABSTRACT

In the half of sixteenth century, with the increase of religious conflicts in the French kingdom, the political resistance issue retook an important place in public debate. Some authors defended the right of subjects to resist the orders of the ruler when they were tyrannical, justifying even the tyrannicide; others denied this right and affirmed the unrestricted duty of obedience to political authority. The aim of this paper is to present this quarrel and to emphasize some of its aspects that anticipate the modern debate on the political resistance.

Keywords: power, political resistance, political obedience, sovereignty

RESUMO

Com o agravamento dos conflitos religiosos no reino francês, principalmente a partir da segunda metade do século XVI, a questão do direito de resistência ao poder político voltou a ocupar um lugar de destaque no debate público. De um lado, autores que defendiam o direito dos súditos de resistir às ordens do monarca quando seus comandos fossem tirânicos, justificando, inclusive, o tiranicídio; de outro, autores que negavam esse direito e afirmavam o dever irrestrito de obediência à autoridade política legitimamente constituída. O objetivo deste texto é apresentar essa discussão e enfatizar alguns de seus aspectos que antecipam o debate moderno sobre o direito de resistência à autoridade política.

Palavras-Chave: Poder, Resistência, Obediência, Rebelião, Soberania

The persecutions had found initially little resistance. They had been answered with prayers and resignations according to the Reformation leaders. As a matter of fact, Luther had been defended an unrestricted duty of obedience to secular authority in his initial writings. Following the advice of Saint Paul, he argued that political power was established for God and had a divine mission. For that reason, the political authority had to be respected and obeyed. Under no circumstance, a Christian, who must serve God, can disobey ruler's commands. Luther knew indeed, after his excommunication in 1521, his freedom to preach and his proper survival depended on the protection of some German princes. He also understood he needed the support of these rulers whose cooperation was rewarded with recognition of the necessary submission from theirs subjects. In On the secular authority (1523), for example, he emphasizes several times the duty of obedience to the rulers, who need an absolute freedom of action in order to fulfill their obligations: to keep the peace; to assure the obedience of the laws; to protect the ones that respect the laws and to punish the transgressors² .

In The Institution of the Christian Religion (1536), Calvin also prescribes complete submission to secular authority, using the same argument that all political power comes of God who justifies and legitimizes it. He emphasizes the Christian duty of obedience to rulers, since they represent the divine will. If theirs commands were iniquitous and unfair, it would have to be answered with prayers, supplications or exile, but never by means of rebellion. In his dedication letter, addressed to the French king Francis I, he assures the allegiance and the political obedience of his Protestant brothers³ .

However, increasing persecutions in some places of Europe, mainly in France, changed the answers. Some theologians started to recognize a possible rebellion against rulers. They exploited an ambiguity of Luther's texts where it was possible to glimpse the permission to disobey the rulers' orders contraries to the God's orders. One of the arguments more usual was based on a principle of the civil law, according to which was legitimate in certain circumstances to repel with violence an unjust force. Thus, if a ruler proceeded by force, opposing the divine will and causing an irreparable damage, he lost the condition of supreme magistrate and started to be a common citizen who had caused an injury and, therefore, subject to reply. However, these theologians warned the punishment was only possible when applied for an adjusted way, that is, for other legally instituted authorities in order to prevent the danger of people resistance.

Luther also used this argument in posterior writings and admitted that if a ruler exceeded the limits of justice in the exercise of his functions and acted by force, he became a particular criminal, being allowed to the inferior magistrates to resist to him. Calvin also started to accept, mainly from the Latin edition of The Institution of the Christian Religion (1543), the disobedience to iniquitous orders of political authorities. His defense of the resistance right was based in the argument that political power is necessarily conditional to the aims established for the divine will; if a ruler did not respect the conditions imposed by God to the exercise of power, he became an usurper; then, the inferior magistrates could resist his commands, since that in collective way and if it was foreseen in the legal system of the political community.

The most radical reformers had looked for emphasizing this idea that the ruler was established by God to perform a particular function; when he did not fulfill this function, he was no more recognized as a true magistrate, being legitimated to the inferior magistrates to resist his orders. This resistance was justified by two principles: whoever receives magistracy has its authority respected only if he fulfills the obligations of his own status; and the distinction between private person who continue submitted in unrestricted way to the established authority and public person, to whom political action to resist is legitimate and even a duty if the commands are contrary to God's orders.

Therefore, the huguenotes have already had a doctrine which legitimized the resistance of inferior magistrates as a religious duty to watch over for the fulfillment of the divine will. The persecutions could be answered with much more than prayers and resignations. But they avoided appealing to rebellion against the Crown, perhaps waiting an official tolerance for their faith.

In fact, Catherine Médicis had several times demonstrated her favorable opinion to religious tolerance, promoting some meetings between Catholics and Protestants to nullify their controversies. The most important step in this direction was the nomination of the chancellor Michel L'Hospital, main leader of the politiques, moderate catholic group, who defended the religious tolerance and the political strength of the king as a solution for the conflict. L'Hospital believed that the price of religious unity was being the destruction of the kingdom and that it was a great political mistake as well as a moral error to try to impose this unify by force. The only solution was the approach of those parties around the king. So he proposed the substitution of the religious unity for the political unity, represented by monarch's person⁴ .

But the first edict of tolerance signed in the General States of Orléans (1560), was torn up when hundreds of huguenotes were slaughtered by the Duke of Guise's army, in Wassy (1562). Several edicts of peace – Amboise (1562), Longjumeau (1568), Sant-Germain (1570), Beaulieu (1571) – decreed fragile truces soon breached for an increasing intolerance and for the political use of religious conflicts by the nobility, desirous in recouping old prerogatives that it had been lost for the strength of the Crown⁵ .

When the persecutions came out more violently, the huguenotes justified the resistance against the Catholics armies as necessaries to liberate the young monarch of bad influence of certain council members, in special the Guises; and as reply the violation of the edicts which had granted a certain freedom of Protestant worship.

The slaughtered apologists praised the patriotic aspect: the huguenotes had been punished not only for heresy but mainly for treason, because they had been supported by foreign forces to stir up the rebellion against the legitimate authority. The Catholic pamphlets accused them to promote the licentiousness, the clutter and the sedition, stirring up the true Frenchmen to destroy this evil. The royal action was justified as necessary and indispensable for the reestablishment of the order and peace in the kingdom⁷ .

The reaction of the huguenotes was immediate. The survivors of slaughtering started to demand the right to take up arms against Charles IX who had used an unjust force. They began to write mainly anonymous pamphlets to justify the resistance right, not only as a religious duty to resist the iniquitous commands, but also as a political right to fight against a tyrannical monarch⁸ .

The right of resistance

By the beginning of October, François Hotman run away from Bourges and arrived at Geneva, the city of the refugees. In July of 1573, the Advice of Geneva approved the publication of Francogallia, sive Tractatus de regimine regum Galliae et de jure successionis which explains the origin of the French monarchy: the five first chapters describe the old forms of monarchical organization; the thirteen following chapters relate the kings' succession and the creation of royal council which was formed by the assembly of General States; and the two last chapters deal with the problem of feminine succession and the rights of Parliaments⁹ .

By the description of French law formation, Hotman desires to show that the royal power was controlled in the old times by the General States which were the legitimate representative of the people's will, responsible to assure the respect to the constitutional rules and traditions of kingdom. According to Hotman, the ancient kings were elected by an assembly of representatives of the people and they were submitted to this assembly, as it could be demonstrated by their promise pronounced in the crown oath. So they only exerted legitimately their power if they respected the constitutional law, instituted and consecrated by the popular will. During medieval times, this assembly which turned the General States had been corrupted with the entrance of clergies and the tyranny of some monarchs. Hotman claims that the General States had to demand the old prerogatives, mainly the right to exercise a permanent control over the royal actions. After all, as legitimate representative of the French people, the General States continued to be the main source of the power and the political authority in the kingdom.

The intention of this historical book is to rescue the remedies for the current conflicts from French tradition. In fact, the immediate applications are clear: the comments on the old right of the council to reject a son of the king, considered inept by another member of the royal family, is an obvious reference to the coronation of Francis II, in 1559; the remark on the prohibition of the feminine regency is a mention of the regency of Catherine Médicis, during the minority of Charles IX from 1561 to 1563; and the comments on the old functions regulating and checking of the General States were a reminder of the function that still fits to this assembly, which had the right to resist, if need by force, to a monarch who did not respect the commitments assumed in his crown oath¹⁰ .

In the same period, Theodore Bèze presented his book Du droit des magistrats sur leurs sujets to the Advice of Geneva which justifies the political resistance to the tyrants. He had already demonstrated, in his previous writings, a concern with this question. In De haereticis a civili magistratu puniendis (1554), arguing that the secular authority has the right and the duty to punish the heretics, he had added that the inferior magistrates have the duty to resist the superior authorities, if it is necessary to protect the true faith. In Confession de la foy chrestienne (1560), a summary of the Reformation doctrine, Béze finished the dedicated chapter to the Church with a section on the problem of political resistance. After reaffirming the orthodox rule of the Christian duty to obey all magistrates, he remembered the distinction between tyrants and usurpers, to argue that the subjects have the right to rebel against the usurper who had assumed illegitimately the power; and in case the legitimate ruler makes bad use of his power, the right to resist competes to the members of the government which have the lawful right to control the political actions of superior magistrates¹¹ .

In Du droit des magistrats sur leurs sujets (1574), the main argument for the resistance right is the contractual origin of political power. Bèze affirms that a ruler must answer for his acts before God, because there is a kind of contract established in the crown ceremony which compromised him to respect the divine law. The ruler must answer before people too, because there is another contract, which stipulates the subjects' obedience if the ruler respects the constitutional law. The political submission is founded in this act of free assent on people, who promises obedience since the ruler respects the divine and constitutional law. If his commands are opposite to these laws, his subjects can refuse to obey by reason of a religious conscience or a political right¹² .

In 1579, it was published Vindiciae contra tyrannos with the pseudonym of Stephanus Junius Brutus. The anonymous pamphlet deals with four questions: if the subjects must obey the prince's orders when those were opposed to the divine law; if it is allowed, and to whom competes, to resist a prince who infringes the divine law or ruins the Church; if it is allowed to resist a prince who put the political community on the line; and if a neighboring prince can aid subjects of another prince, pursued for religious reasons or manifest tyranny¹⁵ .

The main concern is to clarify the rights and the duties of prince and people, since there are mutual and reciprocal rights and duties established for a bilateral contract. The author wants to prove from different Biblical texts that the political obedience was established in the past by a double contract, still valid in present time for all kingdoms, Christians or not, elective or hereditary. The first contract with religious meaning involved God, king and people, for which the congregated multitude had become people of God and had recognized the chosen as a holy ruler. The second contract with political meaning, involved king and people, for which people promised obedience since the consecrated king followed the divine and civil law. The result of the first contract is that king and people are responsible ahead of God. If one of the parts disobeys the divine law, the pact is breached and the other part becomes exempt of the assumed obligations. The second contract, which establishes mutual obligations, turns people co-responsible in the persecution of public good, with the right to control the exercise of political power¹⁶ .

The apostolic principle of all authority comes of God is not abandoned, but there is an emphasis in the fact of king, having been chosen by God, had been always consecrated by and for the people. So he must govern for the benefit of people in accordance with the divine law. If his power has its origin in God, this only becomes effective with the investiture of the people who have the right to institute the kings. The author defends that the submission of people is not unconditional, but subordinated to the respect of the clauses of the contract. As legitimate representatives of people, the magistrates have the right to resist if the king infringes these clauses¹⁷ .

The political resistance of people, without the intermediate of their representatives, was defended in a compendium of huguenotes' pamphlets, published in 1574, with the title Le réveille-matin des français et de leurs voisins. The majority of pamphlets claim the right of resistance of the magistrates which share the public authority as well as justify the armed revolt of people against the tyrannous monarch. The relationship between subjects and sovereigns is described as a reciprocal enrollment in which people promise obedience to the monarch since he compromises to govern justly. If he doesn't fulfill his part of agreement, becoming a tyrant, the subjects have the right to overthrow by force of the weapons without appealing to their representatives.

The duty of obedience

Jean Bodin is one of the main French publicists to whom the right of resistance is unacceptable. In Les six livres de la République (1576), he attacks the ideas propagated by huguenotes. If he shows concern with the writings which teach tyrannical actions for the rulers, as the Machiavelli's Prince, he considers the pamphleteers that stimulate and encourage the subjects' rebellion against the legitimate possessor of sovereign power even more dangerous. Under the excuse to defend the popular freedom, these pamphleteers open the doors to anarchy that is much worse than the most terrible of the tyrannies¹⁸ .

In order to deal with the question of political resistance adequately, Bodin believes it may distinguish, following the Bartolus tradition, the tyrant without title and the tyrant in exercise. Bodin reminds the word tyrant described in classical antiquity whoever had reached the power without the assent of citizens, becoming master by force or by astuteness. In order to maintain his power and to defend himself from innumerable enemies, the tyrant surrounded by armed guards and powerful fortifications; then he was obliged to institute heavy tributes and taxes. Feeling still threatened, the tyrant frequently ordered the execution or the banishment of his opponents, taking their goods and women. So the word tyrant, that expressed originally who became sovereign by usurping the power, was also associated with the unfair and unjust government, turning synonymous of cruel, perverse and unscrupulous ruler¹⁹ .

Bodin considers the resistance to the tyrant without title, who takes the power of a sovereign legitimately established, not only desirable as necessary. The main argument is that there was already a legitimate possessor of sovereignty and this previous sovereign has the right to demand, either for the way of justice or for the way of force, the power which was taken from him illegally. Even if this usurper is late recognized as sovereign, he continues to be a tyrant, being allowed to any subject to attempt against his life. Only his descendants can be recognized as legitimate sovereigns if they do not suffer opposition for a long period²⁰ .

The origin of political obedience is not one of Bodin's main concerns. He has less legal and more sociological perspective of this origin: a series of events provoked by the natural violence of the human being initiated successive confrontations which finished when a group recognized the defeat, accepting the submission into social structure. The natural freedom of living without constrains turned servitude or was diminished by the recognition of a command power. Then, the words "sovereign" and "subject" appeared. Bodin considers the beginning of the political society as a process of natural grouping of some families, by violence of the strongest ones or by the voluntary assent of those who accept the submission. The use of force is present in both of these occasions. Even in rare cases that did not have a conquest by weapons, the voluntary associations have not been given by a contract between free and equal individuals, but by a necessary recognition of submission to the strongest, for protecting life or for keeping it in better conditions²² .

The reason of obedience came from the result of conflicts and the obedience arises from the obligation of submission. Since it was assumed the subject condition, the sovereign's orders cannot be contested. The obedience becomes unrestricted and unconditional, without considering as the command is exerted²³ .

If the subject cannot oppose to sovereign's orders, much less he can proceed against the sovereign by force. Bodin claims it must be guilty of injure-Majesty the subject who attempts against the sovereign's life and who tries, advises, desires or thoughts. He condemns vehemently the regicide and compares it with the parricide, with the aggravation that a monarch is more sacred for the Commonwealth than a father for the family. He affirms that many authors made a mistake about the tyranny issue, causing innumerable inconveniences to the Commonwealth, because they confused severity with tyrannical actions. He states, with almost the same words of Machiavelli, that goodness, gentleness and simplicity are more dangerous and pernicious than cruelty in the exercise of political power. Bodin claims that the ideal would be to join goodness with severity, but the princes are men of strong passions and they are normally in one of the extremities; then, it is better severity than benevolence. He emphasizes that it is not easy to judge if a ruler is or not tyrant, because the times, the places and the events oblige actions which can resemble tyrannical. Then, the accusation of cruelty, impiety and injustice in the use of political power must not justify the resistance²⁴ .

In order to criticize the excess of huguenotes' pamphlets, Bodin retakes the orthodox thesis of the first reformers who had never considered acceptable the rebellion against the sovereign. He reminds the Calvin's advice on the action of magistrates against the tyrant was only applied to popular and aristocratic Commonwealth, not to the legitimate monarchies, since Calvin took as examples Athens, Sparta and Rome. In a legitimate monarchy, as the French kingdom, the magistrates must obey the sovereign, not being able to argue his commands, even though they consider these commands iniquitous or useless.

The magistrate is defined as a public officer who receives the power from the sovereign to perform a public function in accordance with an express law. As all crafts and public offices belong to the Commonwealth, the power granted to the magistrate is proper to the position and not to the person who occupies it²⁵ .

According to Bodin, the magistrate is different from the commissioner who is obliged to stay in the terms of his commission. He does not receive an extraordinary incumbency, limited for a specific commission which ceases when he fulfills it, but he receives a public office. Thus, he has a more extensive and authorized power than the commissioner. But both are submitted to sovereign²⁶ .

The magistrates are classified by Bodin in accordance with the hierarchic level of public command: the superior magistrates who must obey the sovereign and command the others; the medium magistrates who must obey the superiors and command the inferiors; and the inferior magistrates who must obey all the others and command the citizens. The rule that establishes the relationship between them is the same of all commanding relationship, that is, the power of minor is suspended in presence of the greater. If the magistrates change of procedures or status, they must fulfill their duty: to obey the sovereign, to submit to the superiors, to honor their equals, to command the citizens and to make justice in the political society²⁷ .

The difference between the sovereign and the magistrates is determined by relationship with the civil law: the sovereign is superior to the law and the magistrates are submitted it. Bodin considers that the sovereign is above of the civil law, since it depends on his will. The sovereign has the law-making power: he can declare, correct and abrogate the civil law without assent of his subjects. He has the power of giving laws and commands to all in general and to every one in particular. In fact, only the sovereign's commands can properly be called law²⁸ .

The magistrates can neither repeal the law nor abrogate it. They can only adapt it on the circumstances of its application. The magistrates' commands cannot oppose the sovereign's orders, since their duty is exactly to execute the sovereign's will expressed in the law. Their function is to obey the sovereign's commands. They can make warnings and give advices, when they consider the sovereign's orders useless for the Commonwealth. But, if the sovereign decrees that his orders are executed, despite the warnings, the magistrates must obey without quarrel, because their responsibility is to apply the law²⁹ .

As the magistrates do not have the right to resist the sovereign's orders, because they receive from him their power and jurisdiction, the representative assemblies – as the General States in French kingdom – cannot resist the sovereign either. According to Bodin, whoever states that the French monarch is subject to the General States keeps contradicting themselves, because if the monarch is submitted to the General States, he is not sovereign and France is not a monarchy, but an aristocracy. Attacking huguenotes' pamphlets, mainly the Hotman's mistakes, Bodin analyzes the functions of the General States throughout the French history and concludes that it had just been served as consultative council, whose opinion did not have to be respected. Although it was an indispensable institution for political decisions in the Commonwealth, the General States have not had an autonomous power. It was always congregated and dissolved by monarch's initiative. In the French history, some monarchs had even published important edicts without congregating the General States, because they knew that the last word about laws belonged to them³¹ .

So the subjects, the magistrates and the representative assemblies, as the General States, cannot resist the sovereign's orders. The political obedience is unrestricted and unconditional.

***

Therefore, the classical issue on the right of political resistance had a new approach in this debate between huguenotes and Bodin. According to huguenotes, the original contract between monarch and subjects, which established the political relationship and stipulated the obligations of both, could justify the political resistance by their representatives or by themselves. As soon as the political contract was established, the monarch receives the subjects' submission, if he respects the solemn commitments of using the political power for the common good. If he disrespects his promise, the subjects are free of the engaged obedience and can legitimately resist his commands as an act of self-defense. If he makes use an unjust force, the subjects can even fight against him. Thus, the huguenotes' pamphleteers weaken the theory of resistance as a religious duty and strengthen the political right of the subjects to resist the monarch who becomes tyrant.

According to Bodin, the subjects' resistance is a crime against Majesty, since the subjects do not have jurisdiction on the sovereign. His view is an obvious consequence of his definition of sovereignty as an absolute power which does not know restrictions in the scope of political society³²

Despite of clear divergences between huguenotes and Bodin, we can identify a common framework. The right of resistance is now discussed into a secular conception on the origins, the exercise and the purpose of the political power. Following a constitutional tradition, huguenotes defend that the origin of political power is an assent of people who delegate authority to a ruler for the accomplishment of common good; if the ruler does not exert his power with this intention, people can recover their original power, dismissing the ruler of his office. Bodin supports the necessary submission of subjects to legitimate sovereign who does not have legal obligations to his subjects, because his power doesn't originate from a pact or contract.

Although the quarrel on political resistance had been originated from the increase of religious conflicts between Catholics and Protestants, it moved away from a theological to a secular ground. The right to resist and the duty to obey are justified mainly from legal and political arguments. Following the track opened for these Renaissance authors, the modern writers will debate the right of resistance in this perspective.

1 See Miquel, P. Les guerres de religion. Paris: Fayard, 1980, p.238-268.
2 See Luther, M. Von Willicher Oberkeit. In: Hopfl, H. (ed.) On Secular Authority. Cambridge: Cambridge University Press, 1991, p.1-46.
3 See Calvin, J. Institutio Christianae Religionis L.IV cap.20. In: Hopfl, H. (ed.) On Secular Authority. Cambridge: Cambridge University Press, 1991, p.47-86.
4 See Yardeni, M. La conscience nationale em France pendant les guerres de religion. Louvain: Éditions Nauwefaerts, 1971, p.77-97.
5 See Livet, G. Les guerres de religion. Paris, 1962; Lecler, J. Histoire de la tolérance au siècle de la Reforme, T. II. Paris, 1965; Weill, G. Les théories sur le pouvoir royal en France pendant le guerres de religion. Paris: Hachette, 1892. . ]]> 6 See Miquel, P. op. cit., p. 269-298.
7 See Yardeni, M. op. cit., p. 99-119.
8 See Armostrong, E. The political theory of huguenots. In: English historical review, T. IV, 1889, p. 13-40.
9 See Hotman, F. Franco-gallia. Paris: Fayard, 1991, XVIII, p. 149.
10 See Reynolds, B. Proponents of limited monarchy in the sixteenth century France: François Hotman and Jean Bodin. New York: C.U.P, 1931, p. 69-104.
11 See Kingdom, R. Les idées politiques de Bèze d'après son Traitté de l'authorité du magistrat en la punition des hérétiques. In: Bibliothèqued'Humanisme et Renaissance, V.22, 1960, p. 565-569.
12 See Bèze, T. Du droit des magistrats sur leurs sujets. Genève: Droz, 1970, p.3-4; 40-45.
13 See Bèze, T. op.cit., p. 49-50.
14 See Bèze, T. op.cit., p. 11-17; 20-24.
15 See Vindiciae contra tyrannos. Genève: Droz, 1979.
16 See op.cit.,, p. 25-26; 184-189; 51-53.
17 See op.cit., p. 19-24.
18 See Bodin, J. Les six livres de la République. Paris: Fayard, 1986, Pref., p. 14.
19 See Bodin, J. op.cit., II, 4, p. 55-57.
20 See Bodin, J. op.cit., II, 5 p. 71-72
21 See Bodin, J. op.cit.  II, 5, p. 73-75.
22 See Bodin, J. op.cit., IV, 1, p.7.
23 See Bodin, J. op.cit., I, 6, p.111-113.
24 See Bodin, J. op.cit., II, 5, p. 76-80.
25 See Bodin, J. op.cit., III, 2, p. 45-69. ]]> 26 See Bodin, J. op.cit., III, 3, p. 71-72.
27 See Bodin, J. op.cit., III, 4, p.91-92; III, 6, p. 145-161.
28 See Bodin, J. op.cit., III, 5, p. 117-120.
29 See Bodin, J. op.cit., III, 3-4, p. 78-100.
30 See Bodin, J. op.cit., III, 4, p. 105-114.
31 See Bodin, J. op.cit., I, 8, p.198-203.
32 See Barros, Alberto R. A teoria da soberania de Jean Bodin. São Paulo:Unimarco, 2001. ]]> 1980 238-268 1991 1-46 1991 47-86 1971 77-97 1962 1965 II 1892 1889 IV 13-40 1991 XVIII 149 1931 69-104 1960 22 565-569 1970 3-4; 40-45 1979 1986 14 2001