Vous êtes sur la page 1sur 4

What lessons did Montesquieu think were to be drawn from the discussion of England in the spirit of laws?

Charles-Louis de Secondat, Baron de la Brere et de Montesquieu, is very well known for the The Spirits of Laws ( De l'esprit des lois, published in 1748). This book is considered to be of one the most major works in the legal science, an exercise in systematic and comparative philosophical, historical and polemical observation. Montesquieu left Paris in 1728 and travelled around Europe, examining the people and the cultures that he visited. However, England impressed him mostly because of its political and religious freedom. His experience in England was critical for his future. What impressed him most, was that the english society combined both the Rule of Law and political liberty.The most discussed chapter of the book is XI, chapter 6. In that chapter Montesquieu offers his theory of the separation of powers in a discussion of the Constitution of England. According to Montesquieu England should be take as a very good example not because it have the perfect system of government but because it offers political liberty, which Montesquieu defined 'as the right to do what one should want to do, and not being forced to do what one should not want to do'. (Montesquieu, Book XI, Ch.6). Montesquieu's account on the English Constitution is an idealized one, but perhaps most renowned. In this essay I will like to argue about the lessons that Montesquieu thought can be drawn from the discussion of England in The Spirits of Laws, namely the doctrine of the separation of powers. However, I also would like to demonstrate that in Book XI, Montesquieu examines the idea of 'political liberty', examining its content and requirement and refers to the laws that establish political liberty in relation to the constitution. Montesquieu clearly admired the idea of the English Constitution. I would say that the regarded also the english regime as the ideal one, because of the nature of the political liberty that it offered. The first reason for that is that England had a moderate regime,as many other kingdoms in Europe. In his Pensees, Montesquieu wrote that ' the best constitution is a system of interlocking and mutually checking interests and powers such as prevailed in republican Rome and in modern England. It is the masterpiece of legislation'. (V.14, Pensees, 892, 918). Montesquieu is quite right to argue that politics law is the most important to set the rules by which we must live. ( Shklar, 1987, p.74) There are three forms of government ; a republic, monarchic, and despotic. A republic can consist of many of the few, that is the people or the nobles. In a monarchic government, there is one ruling under pre-established rules, and finally despotism is a form where one rules without constraints ( Shklar, 1987, p47). England is a 'democracy disguised in a monarchy', says Montesquieu. Thus, the first lesson to be drawn from this moderate regime is fro Montesquieu, the ideal of political liberty. The idea of political liberty derives from the English Constitution. The English Constitution is under the rule of law, and under which the citizens are not subordinate to each , but enjoy a great degree of security ( Shklar, 1987, p. 86). Therefore, one lesson to be drawn from Montesquieu's discussion of England, is political liberty. Let us explain in depth what this liberty is and on what is based on. I

don't think tat Montesquieu regards liberty as independence, but as he writes in Book XI. ch.3 is 'the condition that causes people to feel that their person and property are secure' ( Montesquieu, Book XI, Ch.3). Security is a normal feeling among free people. According to Shklar ' when he said that liberty was willing what one should will, he only meant that one should agree to what law and custom in a free society demand, because it is a supreme benefit. A man in a free state who has been condemned to hang in a fair trial still has more freedom than a Turkish pasha. ( Shklar, 1987, p. 86). Bearing in mind that Montesquieu 's attempt was to describe the english form of government in a more theoretical than practical form, I should like to point out that this political liberty could be achieved through representation. Representation is great way for people to participate in lawmaking.The idea of representation could be used as a link to the doctrine of the 'separation of powers'. In Ch.6 of Book XI, Montesquieu gives us an account of the english regime. The monarch is possessed of the executive. He believes that because executive power requires swift decision and action, should be in the hands of one. The legislative power was embodied in two assemblies. The House of Lords and the House of Commons. The House of Commons is an assembly, where the people can participate in lawmaking and are able to express the 'general will', and the vote should only be restricted to those who are 'too poor to exercise an independent judgement' ( Shklar, 1987, p. 87).The House of Commons is the mirror of the nation and its leaders are the nations spokesmen (Shklar,1987, p.86). The nobility should be represented in another assembly, the House of Lords, because they are politically functional in a free government and because nobles 'must not be called before the ordinary tribunals of the nation but before that part of the legislative body composed of nobles ' ( Montesquieu, Book XI, Ch.6). Furthermore, Montesquieu stresses that the legislative body is important to convened for a considerable time, to save the legislative body from the danger of corruption , but also from t'he inconvenience caused to the representatives and the overburden the executive body, which be defending its prerogatives and its right to execute '. ( Montesquieu, Book XI, Ch.6). Moreover, the third form of power, which ensures political liberty, is a an independent, impartial, rule-bound judicial system. In Ch.6 Montesquieu has repeated the words null and invisible quite few times. There is a reason for that ;the judiciary should only interpret the law and not make the law. It is the power of laws and not the power of people and therefore, it should have as little initiative and personality as possible. (Aron, 1965, .32). On the other hand, it should be invisible. Let me explain, what he means when using this word. The power of the judiciary is terrible and very overwhelming for the citizens. When taken to court the feel the power of the State. In a constitutional liberty someone should be able to fear only the office and not the person. ( Shklar, 1987, p. 89). Thus, it could be drawn that the english constitution establishes a successful separation between the legislative, executive and judicial powers. This separation assists the government to a more effective operation of its fundamental powers and because 'of the separate functions of the government are placed on different hands, no individual group can monopolize political power' . ( Krause, 2000). Although Montesquieu, did not originate this doctrine, his book, The

Spirits of laws should be held responsible for the importance it attained in the constitutional theory, and practice. Perhaps not surprisingly, after his account on the triadic classification of powers within the english constitution, it could be also drawn that this differentiation of function is combined with a system of checks and balances. In Book XI, ch. 6 he writes that if legislative and executive functions were performed by the same people, 'there would be an end then of liberty ' ( Montesquieu, Book, XI, Ch.6). It seems that in England liberty is feasible because there is a complex piece of institutional machinery, which embodies the principle ' to prevent this abuse of power, is necessary, from the very nature of things, power should be a check to power' ( Montesquieu, Book XI, Ch.4). As I have previously said the protection of the people against the abuse of power can be first achieved through the separation of powers. The second way for the citizens to be protected is through the system of checks and balances.First, the legislative power must cooperate with the executive power. The legislative function is entitled with the responsibility to enact legislation and by doing so it subsequently it defines the direction of 'public business'. it cannot veto executive decisions, but it ' can examine in what manner the laws it has made have been executed' ( Montesquieu, Book XI, Ch.6). The legislative is further divided in two bodies as I have said before, The House of Commons and the House of Lords. The House of Commons is entitled with the enactment of laws and the latter is restricted to the faculty of vetoing. 'The legislative body being composed of two parts, the one will enchain the other by its mutual faculty of vetoing'. ( Krause, 2000). However, the executive body, the king, cooperates with the legislative body by what is called faculty of vetoing ( faculty d' empecher). Montesquieu argues, that the executive body should be able to check the legislative body because of the fear of it becoming despotic ( Montesquieu, Book, Xi, Ch. 6). However, the legislative power should not take part in execution, because executive power would be lost ( Montesquieu, Book XI, CH. 6). Nevertheless, the legislative power, has the right to examine the manner in which the laws that it has made have been executed: Montesquieu, Book XI, Ch.6) I think that Montesquieu while studying the english constitution realizes that England enjoys this political liberty because one power checks another. Throughout his account on the english constitution it seems there is nothing more better understood than the 'expression of a free state, or of a free society in which no power can be abused because it is checked by other powers ' (Aron, 1965, p.33). Thus, it seems that Montesquieu understands that the separation of powers does not lead to independent powers, but quite the opposite ; he stresses that for the liberty to be preserved it is required that executive and legislative bodies to be depended on each other. 'It is not separation that protects political liberty, but the arrangement of the separated powers in an equilibrium mechanism of mutual dependence' ( Gordon, 1991p.85) In conclusion, I would like to remind to my reader the importance that Montesquieu stressed on the moderate regimes. He believed that good governments are moderate governments, and for them to be moderate 'one power should be able to check another power and a citizen should stand in fear of another citizen.' ( Aron, 1965, p.

43). Aron stresses that the nobles ' could feel secure only if their rights were guaranteed by the political organizations itself. And only if the nobles felt secure could the monarch and people feel equally secure. ( Aron, 1965, p. 35). England represented for him the ideal regime. It was a republic 'disguised in a monarchy', as he said. England was not a traditional republic, but it represented a popular state, where a constitutional balance of power could be achieved. Gordon says that the monarch constrained in the exercise of his prerogative powers. These constraints can be put from other institutions like the Church, the nobles or by customs that induce the monarch to respect established practice ( Gordon, 1991,p.85). Thus, Montesquieu through his account paves the way to modern pluralist democracy, 'which extends the principle of checks and balances between governmental institutions to recognition of the role of non-governmental institutions and established practices in controlling the exercise of state power' ( Gordon, 1991,p.85).

References Aron. R., Main Currents in Sociological thought, 1965, Pelican Books Gordon, S., The History and Philosophy of Social Science, 1991, London :Routledge Krause, S., The Spirit of Separate Powers in Montesquieu, The Review of Politics, 2000 Montesquieu, Baron de, Th Spirits of Laws, ed by Cohler, Miller and Stone, 1989, Cambridge :Cambridge UNiversity Press Shklar, J., Montesquieu, 1987, Past Masters