10. Montesquieu’s The Spirit of Laws

“We find in Montesquieu both ancient and modern notions about civil society. Like Plato and Aristotle, he believed that justice is the end of the state. Like Thomas Aquinas, he believed in a natural law that is embodied in the positive law. But he introduced a new note when he emphasized the historical, sociological, and physical variety of the particular situations in which laws and states take form. It is the particular ‘spirit’ of each nation, formed by all those circumstances, which is the basis of their political institutions. This sense of historical particularity, of concrete spiritual forms, distinguishes Montesquieu from his predecessors and marks the emergence of the historical approach in the modern era.” ((Mortimer J. Adler and Peter Wolff, The Development of Political Theory and Government, volume 2 of The Great Ideas Program, Encyclopedia Britannica, 1958, pages 133-134)

Accordingly it was hard for me to realize as I read Montesquieu’s The Spirit of Laws that it was written by an eighteenth century Frenchman and not by a contemporary Englishman. Actually so far I’ve read just its preface and the first 13 of its 31 books, guided by Adler and Wolff’s consideration of it in The Development of Political Theory and Government, which I quoted from above. They consider its importance, what is meant by “the spirit of laws,” the kinds of government identified by Montesquieu, and these four questions: what other ways are there of classifying the kinds of governments? how does excessive equality destroy democracy? what is the role of liberty in democracies? and how does Montesquieu conceive the separation of powers? Here I’ll sketch Montesquieu’s life and, guided by Adler and Wolff, summarize what Montesquieu says about “the spirit of laws,” the kinds of government, and the separation of powers.

Montequieu’s Life

Charles Louis de la Brède was born on January 18, 1689, in the château of La Brède, near Bordeaux. Following his education at home, in the village, and at a college of the Oratorians near Paris, he studied in the faculty of law at the University of Bordeaux, graduating and becoming a lawyer in 1708. After his father’s death in 1713, he placed himself under the protection of his uncle, the Baron de Montesquieu. When his uncle died in 1716, he was left his uncle’s name and estates and the office of deputy president in the Parlement of Bordeaux. Financially and socially secure at only 27, he settled down to exercise his judicial function, administer his property, and advance his knowledge of the sciences. In 1721 he surprised almost everyone by publishing Lettres persanes, (Persian Letters, purportedly letters between two Persians travelling in Europe satirizing the follies of French society), which established his reputation as a wit. In 1726 he sold his office and moved to Paris to devote himself to literature, and in 1728 he obtained membership in the French Academy.

Soon after, Montesquieu set out on a tour of Europe to observe men, their customs, and their social and legal institutions, possibly having in mind the writing of The Spirit of Laws. Although on returning to his estate at La Brède he seemed to settle down as a squire, his principal occupation was the preparation of his literary works. He was mainly occupied with an essay on the English constitution (not published until 1748 when it became part of The Spirit of Laws) and with Considérations sur les causes de la grandeur des Romains et de leur décadence (The Considerations on the Causes of the Grandeur and Decadence of the Romans). After publication of the latter in 1734, he rested for a short time and then undertook an extensive program of reading in law, history, economics, geography, and political theory in connection with The Spirit of Laws. Although friends who read the finished manuscript advised against publication, he published it in Geneva in 1748 under the title of De l’esprit des loix. In France it met with an unfriendly reception, but in the rest of Europe, especially England, it received high praise. Montesquieu spent most of his remaining eight years in the country although he still visited Paris, and near the end of 1754 he went to Paris with the intention of closing his house there and retiring permanently to La Brède. However while there he was stricken with a fever and died on February 10, 1755.

“The Spirit of Laws”

Adler and Wolff introduce their consideration of what is meant by “the spirit of laws” thus: “By speaking of the spirit of laws, Montesquieu signifies that he is concerned with law in general, rather than with any particular body of laws. The spirit of laws, it would seem, must be whatever animates laws, gives them life and utility, and makes them function as they should” (Adler and Wolff, The Development of Political Theory and Government, page 136).

They go on to support their explanation with the following from The Spirit of Laws:

“Law in general is human reason, inasmuch as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. “They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. “They should be relation to the nature and principle of each government…the climate of each country…the quality of its soil…its situation and extent…the principal occupation of the natives…the degree of liberty which the constitution will bear…the religion of the inhabitants…their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established…. These relations…together constitute what I call the Spirit of Laws” (Montesquieu, The Spirit of Laws in volume 38 of Great Books of the Western World, Encyclopedia Britannica, 1952, page 3).

The Kinds of Government

According to Montesquieu, there are three main kinds of government: republic, monarchy, and despotism. Here is how he defines them and how he distinguishes between a republic in which the body of the people is possessed of the supreme power and one in which only a part of the people is possessed of the supreme power: “[A] republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice…. “When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.” (Montesquieu, The Spirit of Laws, page 4)

Many writers on political subjects have classified the kinds of government by the number of persons (one, some, or all) who rule, but Montesquieu also distinguished between them in terms of their principles. He begins by considering the principle of a republican government and continues by considering the principles of a monarchical government and of a despotic government. In the following excerpts from The Spirit of the Laws, I’ve grouped the passages on each kind of government and italicized their names and principles.

“There is no great share of probity necessary to support a monarchical or despotic government. The force of laws in one, and the prince’s arm in the other, are sufficient to direct and maintain the whole. But in a popular state [a democracy], one spring more is necessary, namely, virtue…. As virtue is necessary in a popular government, it is required also in an aristocracy. True it is that in the latter it is not so absolutely requisite…. [By “virtue” Montesquieu means “political virtue” or “the love of one’s country, and of equality” (Montesquieu, The Spirit of Laws, page xxii). With respect to an aristocracy he explains that although in it the nobility restrains the people by means of their laws, they can restrain themselves only by virtue.]

“In monarchies, policy effects great things with as little virtue as possible…. The state subsists independently of the love of our country…. But…if monarchy lacks one spring, it is provided with another. Honour, that is, the prejudice of every person and rank, supplies the place of the political virtue of which I have been speaking, and is everywhere her representative; here it is capable of inspiring the most glorious actions, and, joined with the force of laws, may lead us to the end of government as well as virtue itself….

“Honour is far from being the principle of despotic government: mankind being here all upon a level, no one person can prefer himself to another; and as on the other hand they are all slaves, they can give themselves no sort of preference…. As virtue is necessary in a republic, and in a monarchy honour, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honour would be extremely dangerous….

“Such are the principles of the three sorts of government: which does not imply that in a particular republic they actually are, but that they ought to be, virtuous; nor does it prove that in a particular monarchy they are actuated by honour, or in a despotic government by fear; but that they ought to be directed by these principles, otherwise the government is imperfect.” (Montesquieu, The Spirit of Laws, pages 9-13)

The Separation of Powers

The separation of powers consists in the fact that the executive, legislative, and judicial branches of government each have distinct and clearly defined powers. Montesquieu asserts that for a state to effectively promote liberty, these three powers must be confided to different individuals or bodies, acting independently:

“The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

“When the legislative and executive and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it united to the executive power, the judge might behave with violence and oppression.” (Montesquieu, The Spirit of Laws, page 70)

Montesquieu goes on to describe how he thinks this should work, taking the English constitution as a model. Copleston observes that “Montesquieu’s ideas about balancing of powers exercised an influence both in America and in France, as in the case of the 1791 French Declaration of the Rights of Man and of Citizens” (Frederick Copleston, A History of Philosophy, Volume VI, London: Search Press, 1960, page 15).

Adler and Wolff conclude the introduction to their consideration of The Spirit of Laws with this claim:

“Montesquieu had a direct effect on actual developments in politics and law, as well as on theories about them. His ideas contributed to the outbreak of the French Revolution and the making of basic law for the new French republic. They also played an important role in the drafting of the federal and state constitutions in the United States.” (Adler and Wolff, The Development of Political Theory and Government, page 134)

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