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CHARLES DE SECONDAT, BARON DE MONTESQUIEU (1689-1755) THE SPIRIT OF THE LAWS (1748)

montesquieuAuthor: Barry Stocker

Montesquieu was a provincial French judge who turned to writing literature and history. His biggest and most influential book is The Spirit of the Laws. Montesquieu was part of the French Enlightenment movement, contributing to the Encyclopaedia which was the collaborative achievement of the thinkers of French Enlightenment.

Montesquieu used a vision of universal laws of nature as the basis for laws of history. In that conception of history he looked at the relations between geographical conditions, mores (manners and customs), social conditions, laws and political institutions. He offered a model for understanding relations between physical, social and legal conditions and how these develop over time. This model is one of the great sources of sociological and historical thought, as well as political theory.

His political theory looks to classical models in ancient Greek and Roman thought, but establishes a much greater concern with the individual, and the equality of all humans, than the limited commercial and individualist culture of ancient societies permitted. Montesquieu himself comments on the civilising effects of trade, bringing peaceful communication and understanding between humans, and was an early opponent of slavery.

There is a tension with Montesquieu’s adherence to ancient political thought, which tended to refer to the virtue of poverty and the corrupting effects of wealth on the political system. At least some of the time, Montesquieu offers an ideal of a republic based on equality in poverty, where individuals obey law through voluntary custom rather than through coercion. However, we can extract important stimulants to liberal thought from this aspect of Montesquieu. That wealth leads people to corrupt the political system, in order to protect their accumulation of wealth from the consequences of open markets, is an issue addressed by Adam Smith and market liberals ever since. Montesquieu’s ideal of law without coercion is an ideal for many classical liberals and libertarians, though it also leaves the question of how non-coercion is possible in societies where control of wealth has a fundamental importance that it cannot have in a subsistence economy.

The overall thrust of Montesquieu’s argument is that pure egalitarianism is not relevant any more, and was not even relevant in the ancient societies which are most familiar. The question is what kind of society will be morally preferable given that the pursuit of wealth is a major preoccupation, and given that the increase in wealth promotes general advances in humanity, behaviour, morality and knowledge.

He argued that state persecution and expulsion of minorities was destructive to wealth, as well as to human morality. Government has to be for all the people of a nation. Montesquieu explains the best forms of government with reference to Aristotle’s notions of moderate, or law governed, states. Montesquieu offers his own view of how different kinds of moderate state rest on different principles in customs, which are expressed in the laws.

The democratic republic rests on the virtue of the people, the aristocratic republic rests on moderation of the aristocracy, the monarchy rests on honour amongst the highest in the state. By honour, Montesquieu means a mixture of old aristocratic pride in status and land, and bourgeois commercial pride in social respect and more mobile forms of wealth. His view of honour is a way of presenting a society based on peaceful competition for goods, in a harmony not designed by any one individual.

The negative political model in Montesquieu is despotism, a government without moderation, that is without law restricting the state. The basic goal for Montesquieu is a state in which law is independent of government, and particularly in larger states, government is further limited by localised forms of power. Montesquieu’s political approach to the world he lived in goes into two directions. He consigns republican states to antiquity, or decaying states of his time, such as Venice. He also sees republicanism in the English parliamentary monarchy of his time, where he was impressed by the separation between the legislative body and monarchy; and in the highly autonomous self-governing cities and communities of the Netherlands, Germany and Switzerland. The general impression is that he sees monarchy as inevitable in large modern states, but wishes to see as much republicanism as possible as part of a monarchy, or in confederations of small states.

This modern republicanism incorporates commercial freedom, the rule of law, the decentralisation of power, and separation between legislative and governmental power, in a model Montesquieu hopes will promote the concern of citizens for the public good. This left a particularly strong mark in the new American Republic of the late 18th Century, whose founders were very familiar with Montesquieu; and in the more liberal aspects of the French Revolution.

It must be said that Montesquieu’s references to antique egalitarian republicanism were also taken up by the perpetrators of the Jacobin Terror. However, their methods were clearly in contradiction with Montesquieu’s passion for moderation in law and in punishing crime. Crime should only be punished with minimum force, and with regard to the deterrent force of a likely punishment rather than irregular but extremely cruel punishment. This is one of the great themes of The Spirit of the Laws: law and government should be moderate and restrained in all respects, because cruelty and unlimited power are always wrong.