Montesquieu is so great a name and his work has an influence in and outside of Europe, that it may be approached from many different points. Some writers consider him as the founder of political science. Others, like Raymond Aron consider him as precursor of sociology. It is usually said that Montesquieu had the most important influence on construction of the constitution of the United States of America and through that channel secretly but immensely he widened the influence of the political principles of the English constitution. As you might know, Montesquieu esteemed the English constitution, which he described in Book XI of The Spirit of the Laws as realizing liberty and embodying the separation of powers. Perhaps, this is why to some commentators Montesquieu is the very prototype of a liberal. Yet, others consider him as a reactionary land owning magistrate who hated Louis XIV because of his success in creating a centralised national administration. Well, it is true that Montesquieu was an aristocrat born into a society based upon inequality + hierarchy. It is also true that his distaste for centralised bureaucracy and absolute monarchy were characteristic of his class. But I do not think that we can attribute the central principle of his political philosophy and the organising categories of politics and security to a mere clan ideology as for example an author such as Joseph De Maistre does.
He was born in 1689, a year after the English Glorious Revolution. He was sent to an elite school in Meaux. Later he went to Paris to study law between 1709 and 1773, when the death of his father recalled him to take charge of the family estates. In the following years, he inherited from an uncles a good deal Of money an the office of president in the Bordeaux parliament, which was the first of the provincial parliaments of France. And you can find the trace of this parliamentarianism in his writings. For Montesquieu “parlements” are before all things, a check on the power of monarchy.
In the Spirit of the Laws, Montesquieu supports the position of the parliaments against the position of the monarchy and condemns as despotic any attempt to divest the parliaments of the political functions. Montesquieu, also participated in the work of the Academy. This was a place where he could meet learned noblemen and educated commoners. But he took from this milieu a distaste for prejudice and for a priory reasoning. The Academy gave him also a predisposition to materialism and to mechanistic biology. It was during this period that Montesquieu began writing his famous book the Persian Letters and he published it four years later in Amsterdam in 1721. As I said the other day, this book s considered as the first major work of the French Enlightenment and this is maybe the reason why it had an immense success while established Montesquieu’s reputation. With the success of the Persian Letters Montesquieu was accepted by the society of Regency in Paris. He sold his post in the parliament of Bordeaux and spent his time travelling outside France. He went to England and stayed there for two years. During his stay in England he was elected fellow of the Royal Society and became also freemason. So when returned to Francce he was completely a different person. He was more worldly, more cosmopolitan, more aware of the sciences of his time and more critical towards the French political culture. So he started working on his two other books: Considerations on the causes of the Roman’s Greatness and Decline, published in 1734, and the Spirit of the Laws published in 1748. He died in 1755.
Now two features strike us as soon as we begin to read Montesquieu:
1)
The 1st feature: his constant appeal to history.
2) The 2nd
feature: his constant effort to relate political theory to physical
science.
Montesquieu had a genuine interested in history and his purpose was to make history intelligible. He sought to understand historical truth. But historical truth appeared to him in the form of an almost limitless diversity of morals, customs, ideas, laws, and institutions. So Montesquieu’s knowledge of history is more genuine than Rousseau’s and more sociological than Voltaire’s, but it is very limited. We know by reading him that he shows a remarkable knowledge and understanding of the history of Rome. But of Greece he knows less. Anyway, unlike Rousseau, he puts the clanical dream on the side. For, him the clanical myth has no place in the real world. So even if Montesquieu’s interest in history is great, it would be a mistake to regard his political philosophy as drawn from his knowledge of history. Actually, Montesquieu uses history for illustration and confirmation of his views but he does not draw his views from a study of history. The other important fact is that Montesquieu belonged to the generation, which reacted against the Cartesian philosophy.
Unlike Descartes and Cartesians like Spinoza who look toward the abstract, Montesquieu’s eyes are turned towards the concrete. He is a love of facts and not of speculation. Also reason for Montesquieu is time-bound and local, not universal and perpetual. It is formed under different circumstances and is understood differently from society to society. So Montesquieu is not a universalist thinker, but a relativist. To Montesquieu, relativism is not only a theoretical principle and problem, but a practical demand. Man according to Montesquieu is a flexible being who bends himself in society to the ideas and impressions of those around him. So we have to see Montesquieu’s general sociology and anthropology in the light of this idea of relativism. For Montesquieu unlike Hobbes it is not mathematics but only observation which can enlighten us about the nature of man. Now, what does observations teach us? It teaches us, above all, the reality of our vices and the imperfections of our virtues. Men act out of caprice or out of passion. For the rest, they follow their advantages. As he says: “ selfishness is the greatest ruler of the earth”. So as you see Montesquieu is the opposite of Rousseau. For Rousseau man is good by birth. However, Montesquieu tells of the misery and the sinfulness of our souls. He thinks of man in terms of a fallen nature and of total perversion. Montesquieu talks of the natural indignity of man. According to him men are evil because they tend to ruin everything. Our soul is therefore filled by a general tendency towards evil, in the same way in which the sea is filled by salt. So selfishness leads men to self-destruction, and this is why they result against precepts and laws. So even well-ordered societies can never eradicate and never truly conquer all men’s anti-social and wicked tendencies. Of course, for Montesquieu, man is a rational animal, but reasonableness is not central and decisive in him. According to Montesquieu, man is an intermediate being suspended between reason and irrationality, and he had the freewill to choose between the two. But the freewill is not a sign of man’s excellence, but it is an aspect of his fallen nature. Man, unlike god, has to choose and it is because he has to choose, he is caught in a conflict between his physical drive and his morality. Now, this doctrine of man, as some kind of anthropology has essentially implications for Montesquieu’s political philosophy. For Montesquieu moral effort of man is the key to whole miracle of civilisation. Man as physical being, as a body, is subject to natural forces, but as a moral being he is not and follows the laws. So, it is for the laws to keep him straight. For Montesquieu, human nature has to be disciplined and ordered. This is all the more necessary as man is by nature neither social nor a-social. This means that Montesquieu falls neither for the exaggerations of Hobbes nor for those of Rousseau. He believes neither in a homo hominy lupus nor in a homo angelicus. Man for Montesquieu is permanently between contradictory possibilities. A slight push may drive him into a direction or another. He can got towards a social culture, but also towards an animalistic existence. Now, Montesquieu proceeds the same way as the contractarian thinkers. For him in order to understand what man’s nature truly is , we must think of him in a state prior to the establishment of societies. According to Montesquieu, man is in the state of nature is a being who lacks almost all recognisable human traits. Man is an animal of feelings without understanding. But Montesquieu’s understanding of the state of nature is not in every respect identical to that of Hobbes.
Montesquieu, unlike Hobbes, does not identify the state of nature with the state of war. As he says, if men are really fearful + solitary + dispersed, they would rather avoid each other rather than fight. Because man in the state of nature is engaged in a life and death struggle with the elements of nature, and he does not think of attacking another man. So the state of war is why characteristic of the said state where men are associated. As soon as men are in society the state of war begins. The state of nature is a state of peace for Montesquieu. But man’s natural situation is such that he is forced toward civil society. But Montesquieu agrees with Hobbes that the state of war is the main reason for the creation of the state. For Montesquieu, as for Hobbes, the state is the union of the particular wills of its members into one will. But we do not have the sharpness of the _______ as we have in Hobbes, because the establishment of civil society comes at the end of a natural and uneasy development from asocial to social man. Now at this point we have difference with Rousseau. For Montesquieu the sociability of human beings is not an instinct. It is the fact of living in society, which stimulates man’s social tendencies. According to Montesquieu, we have at the root of all social life a will of the associated individuals to get together. This argument leads Montesquieu to a more normative and practical conclusion, which is the fact that a cannot survive without government. Why? Because a government is both:
1)
A call to social integration;
2) A container of socially
disintegrative tendencies in human beings.
Now, for Montesquieu the important fact is not so much who holds and uses power, but how power is used. In other words, for him laws + constitutions matter far less than the principles or spirit, meaning the ton or values that make them work ill or well. This is what the Spirit of the Laws is all about.
In this book, Montesquieu’s intention is to determine the principles by which human or positive laws ought to be judged. So he focuses on the law + the legal questions and from his study of the law, he derives his conviction that any good government must be subject to legal restraints, because there can be no liberty without law. To modern minds the word law has two meanings:
1) Law is a command of the legislator, an order issued by an authority which compels us o do this or not to do that.
2) Law can be taken to mean a causal relation between a determinant and an effect. For example, if we want that despotism is a necessary consequence of a certain climate, we have causal law.
As the title of Montesquieu’s book suggests his purpose is not to treat laws, but their spirit. What Montesquieu says is that: “Laws are the necessary relations that derive from the nature of things.” Let us try to understand what Montesquieu understands by the Spirit of the Laws:
First of all, Montesquieu believes that the universe created by God is lawful. So the law governs all the peoples of the earth.
Montesquieu agrees with Hobbes and Locke that law in general is human reasons and the laws of each nation are the particular cases where that human reason is applied.
When he talks about the necessary relation, he means the relation between the universal principles of human nature understood by reason and the particular socio-political environment to which reason is to be applied in the form of laws; that is the spirit of the laws.
Now, what is most important for Montesquieu in the socio-political environment: it is the nature + the principle of the government. For Montesquieu the nature of a society derives primarily from the nature + principle of the government, not vice versa. So Montesquieu is saying that the principle of each government has supreme influence on the laws. And by saying that he tries to negate the idea of the blind determinism, and destroy the philosophical foundation of absolutism. Let us take a quick look at the plan of the Spirit of the Laws. I believe we can make three main divisions:
I. The first 13 books, which develop the well-known theory of the three types of government. This is an attempt to reduce the diversity of forms of government to a few types.
II. The book 14 to book 18 have been devoted to physical causes that is to the influence soil + climate on the manners and institution of human beings.
III. From book 20 to book 26 he talks about the influence of social causes, such as trade, currency, religion, and population on manners + laws.
IV. Besides:
i. The last books are devoted to an investigation of feudal legislation.
ii. Book 29 is devoted to the question: how laws should be written?
iii. Book 19 deals with the general spirit of a notion, it morals + customs.
iv. Book 11 on the English Constitution + the separation of powers was written better than the first books after Montesquieu’s trip to England.
Let concentrate on books two to eight, which form the core of the Spirit of the Laws that analyses the three types of government and were written before Montesquieu’s trip to England, at a time when he was under the dominant influence of clanical political philosophy and more specifically Aristotle, because there are allusions to or comments on the politics of Aristotle on almost every page. How does Montesquieu proceed in these books?
1) He sets not his own distinctive definitions of governments.
2) He then analyses the nature + principle of each.
3) Finally, he deals with the fatal corruption that must occur when the principle of a government is abandoned.
Now, Montesquieu, like Aristotle, has a threefold division, but in place of democracy (the rule of the many), aristocracy (the rule of the few), and monarchy (the rule of one), he substitutes a division into republic, monarchy, and despotism. Each of theses types is defined with reference to two ideas, which Montesquieu called before the nature + the principle of government. The principle of government is the sentiment, which must animate men within a type of government for the latter to function harmoniously. So each type of government is characterised by a sentiment without which it cannot survive. There are three basic political sentiments:
1) The republic depends on virtue.
2) The monarchy depends on honour.
3) Despotism depends on fear.
The virtue of the republic is not a moral virtue but a political virtue. It is respect for law + the individual’s dedication to the welfare of the group. Honour is ambition, personal ambition for distinctions + distributions. So it is the sphere of the virtues, which look to one rather than to others. Fear needs no definition. It is a sub-political emotion, which, as Hobbes says, supports the state itself. Montesquieu was not as pessimist as Hobbes, but he believed that a government based on fear is fundamentally corrupt and in danger of political ruin.
Now let us take a quick look at the nature of government.
The republic is that form of government in which the people as a body, or a part of the people possess sovereign power. A republic therefore can be either a democracy or an aristocracy. By democracy, Montesquieu means a state where the whole citizen body rules directly and not through representatives (Athens). By aristocracy he means that only a part of the citizen body is admitted to the possession of political power ( the republic of Venice).
The monarchy is a form of government in which a ingle person governs by fixed + established laws (18th century France). Concerning the monarchy, Montesquieu rests his hopes on the balance of power between the king and the intermediate bodies, such as the church and the nobility. But for him the French monarchy lacks one side of the triangle and that was mixed constitution that England had. As I said before Montesquieu examined the institutions of England with envious admiration, as did Voltaire before him. And he was impressed by the fact that the English had achieved freedom. English freedom, according to Montesquieu rested upon two chief supports:
1) The substantial separation of the executive, legislative and judicial powers.
2) The mixture of monarchy, aristocracy, and democracy in Crown, Lords, and the Commons.
Why did Montesquieu value the separation of powers? Because they acted as a check on the power of the government. So for Montesquieu a state is free when one power checks the other. For him the English are free, because the Commons + Lords, mutually temper one another as dual participants in the Parliament. These two legislatives are in turn checked by the Crown’s right to veto. And the Crown is, in turn, checked by the legislatures’ right to impeach the Crown’s ministers and the right to investigate how the laws are being carried out. We must now turn to Montesquieu’s 3rd type of government, which is despotism. Despotism was a reality that he detested. He defines it as an unchecked rule of one man. The difference between despotism and the two other forms of government is that it cannot be a mandate government, because if the king lowers his arm for a moment all his power is lost. So in a despotic government we are in a state of perpetual conflict, because there is no peace even if there may be no strife. Also, in a despotic government everybody is equal in a tragic way, because everybody is at the bottom of the social and political ladder. And neither goodness, nor excellence is rewarded. All talents are obstructed. Montesquieu draws examples from Russia, Turkey, and the East, but his eyes are always glancing over France. It is interesting that Montesquieu condemns despotic power, but not in revolutionary terms. Because, he is neither a democrat nor a revolutionary. There is a good reason why he shows no enthusiasm for the idea of a government, which draws it strength from the approval of the people. What he dislikes is uniformity. He values local variations. He does not denounce privileges as the French revolution did later. And I do not think that he would have approved the declaration of the rights of men. But he would have approved the principle of the separation of powers that the French revolutionaries incorporated into their constitution. The French monarchy would have been different had all Montesquieu’s recommendations been accepted. And who knows, may be this would have prevented the eventual outbreak of revolution in France.
Montesquieu had a lot of doubts concerning the relevance of republicanism in modern times. Because he had doubts about the viability of a society that depends on the continual self-abnegation of its citizens. So he saw a republic merely a utopia. Monarchy, for Montesquieu, had a historical memory in France and a political reality in England, which he admired. We must not forget that Montesquieu was in no way a doctrinaire of equality, and still less a doctrinaire of popular sovereignty. Since he related social inequality to the essence of the social order, he opened himself very easily to inequality. But he was always looking for moderation. That is why the essence of Montesquieu’s political philosophy is liberalism, because the good of the political order is to issue the moderation power by the balance of powers.
Fundamental Principle:
What was Montesquieu trying to do? He was concerned with the varying application of fundamental principles of right to the necessary changes in men’s conditions. For Montesquieu, though circumstances were diverse, there were, nonetheless, rational principles of morality by which the success of governments was to be measured. History was an illustration of the force and prevalence of such principles. Like Aristotle, Montesquieu believed that the state was to be defined teleologically in terms of a purpose that was essentially the good life of the community. He follows the tradition of the natural law philosophers, though it is rather the natural law theories of Grotius than those prevalent in the 17th and 18th centuries that have his approval. As he puts it government consists of the adjustment of universal principles of natural law to special conditions. For Montesquieu, universally recognized principles of right do exist. But we fall short of them because we are not perfect beings living under ideal conditions. There are two reason for the impossibility of perfection:
1) The limitation in the spirit and nature of the human material itself.
2) The limitations imposed by the particular environment. (Montesquieu’s discussion of the climate)
Despite the said limitation, the general principles are everywhere. Montesquieu calls them law. Laws are the necessary relation springing out of the nature of things and they are universal. Montesquieu conceives of law and political obligation as arising from the nature of things. He divides man-made law into three types:
1) Law of nations, while is a law common to all societies, necessary for their international relations.
2) Political law is a law, which within a country determine the relations of ruler and subjects. It corresponds more or less closely to what today we call constitutional law.
3) Civil law is a law regulating the relations of citizens amongst themselves.
The prime concern of individual states is with the formulation and application of political and civil law. The law re related to a particular time, and a particular place. Montesquieu had studied Roman law, with its emphasis on codification and contrasted the French system with its arbitrariness and lack of plan with it. What he suggested was the formulation of a series of well-integrated codes, with an eye to tradition and to contemporary needs.
Forms of State:
From considering the nature of law, Montesquieu turns to the nature of the state itself. For Montesquieu, there is no best form of state. To talk of the superiority of a republic to a monarchy is to talk of a supreme nonsense. One must always ask the questions: when, where and for whom? So despite his objection to he existing despotism, Montesquieu had no uniform solution to offer. If he admired republics, he was not unaware of he value of monarchies. Yet, if Montesquieu denies the existence of any absolutely best form of state or government he does not deny the possibility of any classification of governments. As you know, Montesquieu is famous for his comparative method and for him the classification is a remarkable effort to reconceptualise the fundamental categories of political theory. Montesquieu’s classification, however, does not follow precisely the traditional lines with monarchy, aristocracy, and democracy.
Forms of government:
Instead, he classifies governments into republican, monarchical, and despotic. In other words, there are republic, kingdoms (principalities), and empires. The reason he gives for such a classification is that governments are to be distinguished not primarily in terms of their outward manifestations, but rather according to the dominant principles that they express. As we said last time, these principles in a republic are: 1) Virtue; 2) love of country; 3) equality. So republics are divided into:
1) Democracy;
2) Aristocracy;
3) Moderation.
Moderation is Montesquieu’s clearest aim for political life. It is spread across his book. Moderation is a limit to the ambition of aristocrats. The distinctive principle of monarchy is honour. Honour is based upon an opinion that one’s own rank is preferable to that of others, and that one belongs in such a place. People are always trying to demonstrate by their action that they belong in their place.
Within a monarchy different clans have their exclusive rights and privileges, which is to the monarch’s interest to sustain and protest. Now in order to support the inequality of monarchies, there must be luxury so that the rich will spend and by doing so pay the poor for the work that sustains the luxury of the wealthy. So what Montesquieu concludes is that: families and economic activity are in the public domain and that is why monarchies blur the sharp distinction between public and private, which are maintained by republics. As we said, the third form of government was despotism. This contrasts with monarchy in the sense that the ruler is absolute, unchecked either by formal limitations or by the informal influence of courtiers. In despotism everyone is manifestly subject to the ruler and formal class distinctions are eliminated. Below the ruler we find a mass that is kept in subjection by fear. So we see that for Montesquieu, despotism is not simply a distorted monarchy. Monarchy and despotism differ structurally. The key difference is the presence or absence of intermediate, subordinate, and dependent power. In both monarchies, and despotisms, the prince is the source of all power, but in monarchies, there are intermediate channels through which the power flows. It is not enough to have intermediate powers in a monarchy, there must also be a depository of the laws. This depository can only be the judges of he supreme courts of justice (parliaments) who promulgate the new laws and revive the obsolete. With despotism there are no depositary of law and no intermediate dependent powers. The Ottoman Empire we Montesquieu’s best case of despotism, followed by Russia. For Montesquieu, the analytic question here, as elsewhere, was the relative balance and relation between the prince and his lieutenant, I mean between the state machinery and the intermediate subordinate powers. On this level, Montesquieu, saw a differenc3e between the European feudal absolutist states and empires. Most of the empires practiced a despotic power (China for example). In Europe, Montesquieu took the example of England, which according to him was an anomaly. Why? Because England was not a despotism, but the English to favour their liberty abolished all the intermediate powers of which their monarchy was composed. So England arrived at a unique solution to the problem of power, unlike the feudal monarchy and the ancient republic. England arrived at the modern state, a polity with a national government centralised and yet in no sense despotic. England is somehow both monarchical and republican. And the English constitution is the constitution that has political liberty as its purpose.
Theory of Liberty:
1) We have to note that in accordance with his general philosophy, Montesquieu did not believe that liberty was desirable for all peoples, since some were incapable of its effective exercise.
2) Because he doe recognise that liberty is not uniformly practicable, he does not suffer from the delusion that one can attain it by drawing up a bill of rights.
So for Montesquieu what is important is not the letter of the law, but the spirit in which it is applied. It is the law in action, not the law in the books, that determines the value of a legal system. Political liberty does not consist of the belief that one is acting as one wills, but rather the power to act, as one ought to will. So the vital problems of liberty arise when there is a conflict between the moral conviction of the subject and the orders of the government. Liberty for Montesquieu: is one’s feeling of certainty that when one performs acts not contrary to the law, one is safe from government punishment. The security necessary to give one this feeling exists only when government itself is based on law. So political liberty takes place only within laws. Now granted such liberty is desirable, that men must be protected against irresponsible power in the hand s of their governors, how is it to be attained? For Montesquieu, the separation of power is a technique of organisation to prevent the abuse that occurs when power is concentrated. The idea is essentially that in each state there are three types of power: legislative power, executive power over the thing depending on the right of nation, and executive power over the things depending on civil rights. The first is power to make laws. The second is the power to conduct foreign policy. The third is the power to punish (judicial). Locke divides political power into the legislative, the executive and the federative. Montesquieu’s division of power is centred on the executive. Montesquieu’s executive power over the civil right is judicial power because it is seen form the point of view of the punishment, rather than the point of view to set out regulations. Montesquieu’s point is to say that there is neither liberty nor moderation when the three powers are united. Both can exist if the judicial is separate. A man must not be judge in his own case or carry out the judgment that he himself has passed. The same applies to government. The legislature must pass laws, the judiciary must decide whether an accused person has offended against them. In a free state the people as a body should have legislative power because every man considered to have free soul should be governed by himself. To ensure fair judgement, Montesquieu requires that the judges be of the same status as the judged. The juries of the people are taken from the people and the nobles are to be judged by the noble branch of the legislature. Now the executive is protected from the legislative both by the fact that he is the monarch and by his veto over legislation. The legislature protects itself from the executive by its capacity to oversee, but to veto the actions of the executive. So a free society is made up of individuals who form and reform groupings around the separate powers of the government. This whole principle of the separation of powers was that Montesquieu thought he observed in the English government of the day. Montesquieu’s main concern with the English constitution was the independence of the judiciary. Montesquieu, living in a country where the courts were generally the tools of the monarch, he saw the need to insist on so vital a principle. The separation of powers was proposed by Montesquieu as method for securing the safety of the citizens from unwarranted interference with the peaceful conduct of their lives. At the time of the French revolution this doctrine had a great influence and it was from Montesquieu that Abbe Sieges gained much of his inspiration. Revolutionary France, also, followed Montesquieu in directly abolishing arbitrary punishment. So Montesquieu was an important force in the French revolution, particularly when its more violent stage was passed and the task of making laws was at hand. Montesquieu was also influential in America. Not only the French constitution, but also many of the state constitutions were based upon his idea of separation of powers. Even if Montesquieu, like Burke, was a curious blend of liberalism + conservatism, though unlike Burke he was not possessed by fear of ruin that led the conservative to dominate over the liberal. He was essentially a moderate opposed to extreme irrationality in government. In sum, he approved monarchical government provided it was sensible and not despotic. Hence, he was also friendly towards republican government, provided it was suited to he customs and endowments of the people to whom it was applied. He wanted to liberate men from the twin tyrannies of prejudice and despotism.
Montesquieu (1689-1755) As published on the Internet: 9/24/02