Charles Louis de Secondat, Baron de Montesquieu

1689–1755
Nationality: French
Historical Period: The 18th Century
Charles Louis de Secondat, Baron de Montesquieu (1689-1755) was one of the most influential legal
theorists and political philosophers of the 18th century. His ideas about the separation of powers and
checks on the power of the executive had a profound impact on the architects of the American
constitution.
See the Liberty Matters online discussion on Montesquieu on Liberty and Sumptuary Law
Quotes from Charles Louis de Secondat, Baron de Montesquieu:
 Charles Louis de Secondat, Baron de Montesquieu on law as a fishing net
Titles from Charles Louis de Secondat, Baron de Montesquieu:
 Author: BOLL 37: Montesquieu, “Of the Constitution of England” (1748)
 Author: Complete Works, 4 vols. (1777)
 Author: My Thoughts (Mes Pensées) (1720, 2012)
Associated with:
 The French Enlightenment
 Other Authors Recommended by Pierre Goodrich
 Founding Fathers' Library
Till Hanisch,
Justice et puissance de juger chez Montesquieu.
Une étude contextualiste
Dario Ippolito

Till Hanisch, Justice et puissance de juger chez Montesquieu. Une étude contextualiste, Paris,
Classiques Garnier, 2015, 300 pages.
«Le droit tire son nom de la justice»: à la veille de la promulgation du Code civil napoléo-
nien, ces mots d’Henri Hulot – qui dissimulent l’allitération jus/justitia – traduisent un célè-
bre fragment d’Ulpien1. Au tout début des Pandectes de Justinien, cette fausse étymologie
avait contribué, dès l’Antiquité romaine, à accréditer la jurisprudence comme science du juste
et de l’injuste et à exalter la fonction politique des juristes en les représentant comme les
ministres sacrés du bon et de l’équitable.
À l’époque de la formation intellectuelle de Montesquieu, la culture juridique était encore
imprégnée de ces catégories idéologiques. En 1701, dans les Originum juris civilis libri tres,
Gian Vincenzo Gravina continuait à célébrer les jurisconsultes comme autant de « legum
voces, et juris custodes, atque justitiae sacerdotes » (II, XXI). Ce n’est qu’un exemple parmi
beaucoup d’autres, mais très emblématique d’un discours d’autolégitimation qui, reliant les
normes juridiques aux principes de l’éthique, caractérisait aussi bien la doctrine du droit posi-
tif que la philosophie du droit naturel.
Dans cet horizon culturel, L’Esprit des lois se distingue nettement : prolem sine matre crea-
tam – comme son auteur le revendique –, l’ouvrage propose une réflexion tout à fait inédite
sur le droit. Au lieu de s’exercer à l’interprétation des textes normatifs (selon le modèle de la
jurisprudence traditionnelle) ou de s’appliquer à la démonstration des vérités morales (selon
le paradigme jusnaturaliste), Montesquieu vise en effet à comprendre et à illustrer la réalité
même des systèmes juridiques dans l’économie des systèmes sociaux.
Pourquoi les lois, dans un espace et dans un temps déterminés, sont-elles ce qu’elles sont ?
Telle est la question qui motive l’entreprise scientifique de Montesquieu. Fondée sur l’hypo-
thèse que la variété des règles juridiques ne dépend pas uniquement de l’arbitraire de ceux
qui les produisent, son enquête part de l’observation des principaux facteurs de l’organisation
sociale, elle s’engage ensuite dans une analyse des constantes qui caractérisent les relations
entre les données comparées, elle aboutit enfin à la formulation de thèses théoriques basées
sur les faits et aptes à les expliquer.
Dans cette nouvelle approche heuristique de la réalité juridique, le thème du rapport entre le
droit et la justice perd évidemment le rôle absolument central qu’il avait dans l’ancienne
scientia juris. Ce serait toutefois une erreur de réduire Montesquieu à un sociologue ante lit-
teram exclusivement attaché à la recherche empirique et indifférent aux problèmes du devoir-
être du droit. De plus en plus nombreuses sont au contraires les lectures de L’Esprit des lois
qui soulignent et analysent sa dimension normative. C’est à ce courant interprétatif qu’appar-
tient l’importante monographie de Till Hanisch, Justice et puissance de juger chez
Montesquieu.
Sa proposition herméneutique est suggestive : s’il est vrai que Montesquieu ne s’engage pas
dans « une théorie systématique de la justice », il n’en reste pas moins que « toute son œuvre
peut être comprise comme une vaste étude des conditions et des formes de réalisation de la
justice » (p. 63), « au niveau moral de même qu’au niveau institutionnel, au niveau individuel
comme au niveau de la communauté » (p. 64). De ce point de vue, Hanisch s’oppose aux
« thèses affirmant qu’il y a une rupture radicale entre les Lettres persanes et L’Esprit des
lois » (p. 66) : on n’assiste pas, dans le chef-d’œuvre de 1748, à l’« effacement de la préoccu-
pation spécifiquement morale au profit d’une tentative de compréhension historico-politique
de l’Europe de son temps »2.
Selon l’auteur, bien que « le terme même de justice dispar[aisse] presque totalement de
L’Esprit des lois à la suite du livre premier », l’idée de justice « formulée dans les Lettres
persanes » sous-tend tout le texte « sous différentes formes et dans divers contextes » (p. 66).
C’est justement à l’élucidation des différentes formes et des divers contextes des manifesta-
tions de la justice qu’est consacrée cette étude très dense. Structurée en quatre chapitres –
précédés d’une introduction très claire et suivis d’une intéressante conclusion –, elle s’ouvre
par une réflexion préliminaire sur la théorie et la méthodologie de l’herméneutique historique
explicitement enracinée dans le contextualisme de Quentin Skinner. Elle analyse ensuite le
concept de justice chez Montesquieu en considérant ses fondements, ses sources et ses confi-
gurations par rapport aux concepts d’équité et de modération. Elle aborde alors le thème de la
réalisation de la justice dans l’articulation constitutionnelle en éclairant la pensée de
Montesquieu à propos du rôle institutionnel des juges. Enfin, elle approfondit le problème de
la justice dans l’ordre international en abordant les différents aspects de la doctrine du droit
des gens développée dans L’Esprit des lois (droit de guerre, droit de conquête, droit commer-
cial, etc.).
La richesse des thématiques examinées fait de l’ouvrage de Hanisch une contribution pré-
cieuse au débat sur la philosophie du droit de Montesquieu. Dans sa préface, Catherine
Larrère le désigne comme « la première étude d’ensemble consacrée à la justice chez
Montesquieu » (p. 9). Chacune de ses parties, chaque affirmation et chaque argumentation de
l’auteur se prêtent à une discussion fructueuse. Je me limiterai ici à quelques réflexions sur
certaines de ses thèses relatives aux notions de justice et d’équité.
Je commence par une remarque assez banale concernant une donnée de fait. Dire que dans
« la pensée politique de Montesquieu […], [l]es formes de manifestation de la justice sont
multiples et variées, même si le terme est généralement absent de ses textes » (p. 261) est par-
tiellement incorrect : la proposition concessive signale ici une absence qui n’en est pas une.
Dans les textes de Montesquieu, en effet, les occurrences du terme de justice sont présentes
par centaines et les nombreux contextes sémantiques où ce terme est utilisé permettent d’en
distinguer trois acceptions principales : 1) la justice comme paradigme normatif auquel les
actions humaines doivent se conformer ; 2) la justice comme vertu ou qualité personnelle ; 3)
la justice comme administration judiciaire ou juridiction. Une analyse lexicographique pré-
cise aurait pu enrichir et consolider l’enquête de Hanisch.
De la même manière, l’affirmation que, « sans reformuler la définition de la justice de la
Lettre 83 (81 dans l’édition de 1721), Montesquieu en développe l’esprit dans ses œuvres
ultérieures », et que « précisément la mise en œuvre de l’idée de justice […] explique
l’absence du concept » dans L’Esprit de lois (p. 66) suscite des perplexités. Qu’est-ce en effet
que l’esprit d’une définition ? En quel sens peut-on dire que le concept de justice est absent
alors que « l’idée de justice n’est nullement absente » (p. 66) ? Certes, dans L’Esprit des lois,
Montesquieu ne donne pas une définition de la justice ; mais l’absence d’une définition impli-
que-t-elle l’absence du concept correspondant ? Évidemment non : les textes philosophiques
regorgent de concepts indéfinis. Hanisch, par exemple, utilise le concept de concept à des fins
analytiques sans ressentir le besoin d’en proposer une définition. D’ailleurs, une partie impor-
tante de son travail herméneutique consiste justement dans la détermination de concepts
employés mais non définis par Montesquieu.
Tel est le cas du « concept d’équité » qui, dans L’Esprit des lois aussi bien que dans les
Lettres persanes, « est employé aux endroits clés qui traitent de la justice » (p. 77). En se
penchant sur ces passages, Hanisch observe d’abord que « l’équité est présentée comme une
qualité inhérente à l’homme qui permet de reconnaître la justice et qui est fondée à la fois
dans la raison et dans le sentiment » (p. 77). Il définit ensuite l’équité comme « une forme de
mesure qui représente un rapport de convenance » (p. 82). Dans cette focalisation concep-
tuelle, la relation entre l’équité, qui « participe de la capacité de reconnaître le juste » (p. 82),
et la justice, conçue par Montesquieu comme « un rapport de convenance » (LP, 81 [83)], est
caractérisée en termes de dérivation : « […] des rapports de justice sont dérivés des rapports
d’équité » (p. 81). Or, le fait que Montesquieu distingue et associe de cette façon le « concept
d’équité » (mais pourquoi le concept et non l’idée ?) et « l’idée de la justice » (mais pourquoi
l’idée et non le concept ?) est discutable. En effet, l’analyse textuelle ne semble pas corrobo-
rer cette lecture. Prenons par exemple deux « endroits clés » cités par Hanisch :
Ainsi quand il n’y aurait pas de Dieu, nous devrions toujours aimer la justice ; c’est-à-dire
faire nos efforts pour ressembler à cet être dont nous avons une si belle idée, et qui, s’il exis-
tait, serait nécessairement juste. Libres que nous serions du joug de la religion, nous ne
devrions pas l’être de celui de l’équité. (LP, 81 [83])
Avant qu’il y eût des lois faites, il y avait des rapports de justice possibles. Dire qu’il n’y a
rien de juste ni d’injuste que ce qu’ordonnent ou défendent les lois positives, c’est dire
qu’avant qu’on eût tracé de cercle, tous les rayons n’étaient pas égaux.
Il faut donc avouer des rapports d’équité antérieurs à la loi positive qui les établit […]. (EL ,
I, 1)
Le parallèle entre ces passages est intéressant aussi bien du point de vue conceptuel que du
point de vue stylistique. Dans l’un comme dans l’autre, Montesquieu utilise en premier lieu le
substantif justice, puis l’adjectif juste, et enfin le substantif équité. Dans les deux cas, aucun
élément du discours ne suggère de séparer le champ sémantique du second substantif de celui
du premier. Au contraire, si nous attribuons au mot d’équité – comme Hanisch nous invite à
faire – un sens différent de celui du mot de justice, le raisonnement de Montesquieu perd sa
linéarité et sa cohérence argumentative. Il faudrait donc prendre au sérieux l’hypothèse selon
laquelle la distinction conceptuelle entre justice et équité reste aux marges de la réflexion phi-
losophique de Montesquieu.
Au-delà de la rareté significative des occurrences du terme d’équité dans les Lettres persanes
aussi bien que dans L’Esprit des lois, une confirmation intéressante peut être tirée de l’usage
de l’adjectif juste :
Quand un homme s’examine, quelle satisfaction pour lui de trouver qu’il a le cœur juste ! Ce
plaisir, tout sévère qu’il est, doit le ravir : il voit son être autant au-dessus de ceux qui ne l’ont
pas, qu’il se voit au-dessus des tigres et des ours. Oui, Rhédi, si j’étais sûr de suivre toujours
inviolablement cette équité que j’ai devant les yeux, je me croirais le premier des hommes.
(LP, 81 [83])
Il faut donc avouer des rapports d’équité antérieurs à la loi positive qui les établit : comme,
par exemple, que, supposé qu’il y eût des sociétés d’hommes, il serait juste de se conformer à
leurs lois […]. (EL, I, 1)
On ne saurait négliger le fait que, en lien avec le mot équité, Montesquieu emploie l’adjectif
dérivé du mot justice. Dans les discours philosophiques sur le droit et sur la politique où
l’équité est une catégorie distincte de la justice, cette promiscuité adjectivale est normalement
évitée : l’équitable ne se confond pas avec le juste. Or, ni dans les Lettres persanes ni dans
L’Esprit des lois on ne trouve la notion d’équitable. Cela conduit à penser que Montesquieu
ne se soucie pas de marquer la distinction entre justice et équité.
Un banc d’essai approprié pour tester notre hypothèse est le Discours sur l’équité qui doit
régler les jugements et l’exécution des lois (1725) : quoi de mieux qu’un texte sur la déonto-
logie judiciaire pour la révoquer en doute ou l’invalider ? En dépit des prévisions, cependant,
notre hypothèse résiste à cette tentative de falsification. Le Discours, dont le titre comprend
expressément la notion d’équité, concerne en effet explicitement la « justice » en tant que
« vertu essentielle »3 du magistrat. Il n’est donc pas surprenant que, sur fond de cette super-
position lexicale, Montesquieu n’accorde pas la moindre importance à une actio finium
regundorum entre les deux concepts.
Ce qui est en revanche surprenant, c’est le fait qu’un discours sur l’équité dans la juridiction,
prononcé dans une cour de justice d’Ancien Régime par un haut magistrat qui s’adresse à
d’autres magistrats, n’aborde jamais le problème de l’interprétation de la loi, c’est-à-dire pré-
cisément le domaine où la culture juridique recourait traditionnellement à cette notion.
Conçue dans le sillage d’Aristote comme justice du cas concret, l’équité était valorisée en
tant que source du droit jurisprudentiel. Fournissant un fondement aux décisions judiciaires
en décalage avec la loi, elle contribuait à renforcer l’arbitraire des juges. Elle constituait en
somme un dispositif de légitimation du pouvoir de faire justice. L’écart de Montesquieu par
rapport à cet horizon idéologique ne doit pas être sous-estimé. Substantiellement négligée
comme catégorie éthique, l’équité disparaît aussi de son discours sur la puissance de juger. À
ce propos, Hanisch a parfaitement raison de souligner que « Montesquieu rompt avec un
concept clé de toute une tradition de la pensée juridique » (p. 143). Moins convaincante,
cependant, est sa thèse selon laquelle il « en maintient la structure » « en remplaçant le terme
équité par esprit de la loi » (ibid.).
Dario Ippolito
L’auteur souhaite remercier Philippe Audegean pour sa relecture et la révision linguistique de ce texte.

1
Les Cinquante livres du Digeste ou Des Pandectes de l’empereur Justinien , 1.1.1., traduit en français
par feu M. Hulot […], Metz/Paris, Behmer et Lamort/Rondonneau, 1803, tome I, p. 41.
2
C. Dornier, « Morale, moralistes », dans Dictionnaire Montesquieu [en ligne], sous la direction de
Catherine Volpilhac-Auger, ENS de Lyon, septembre 2013. URL : http://dictionnaire-montesquieu-ens-
lyon/en/article/1376475736/fr
3
Montesquieu, Discours sur l’équité qui doit régler les jugements et l’exécution des lois , prononcé à la
rentrée du parlement de Bordeaux en 1725, dans Œuvres et écrits divers I, Œuvres complètes de
Montesquieu, dir. P. Rétat, tome 8, Oxford/Naples, Voltaire Foundation/Istituto italiano per gli Studi
filosofici, 2003, p. 476.
MONTESQUIEU – La distinction des trois pouvoirs
« II y a, dans chaque État, trois sortes de pouvoirs ; la puissance législative, la puissance exécutrice
des choses qui dépendent du droit des gens, et la puissance exécutrice de celles qui dépendent du
droit civil.
Par la première, le prince ou le magistrat fait des lois pour un temps ou pour toujours et corrige ou
abroge celles qui sont faites. Par la seconde, il fait la paix ou la guerre, envoie ou reçoit des
ambassades, établit la sûreté, prévient les invasions. Par la troisième, il punit les crimes, ou juge les
différends des particuliers. On appellera cette dernière la puissance de juger ; et l’autre, simplement
la puissance exécutrice de l’État.
La liberté politique, dans un citoyen, est cette tranquillité d’esprit qui provient de l’opinion que
chacun a de sa sûreté ; et, pour qu’on ait cette liberté, il faut que le gouvernement soit tel, qu’un
citoyen ne puisse pas craindre un autre citoyen.
Lorsque, dans la même personne ou dans le même corps de magistrature, la puissance législative est
réunie à la puissance exécutrice, il n’y a point de liberté ; parce qu’on peut craindre que le même
monarque ou le même sénat ne fasse des lois tyranniques, pour les exécuter tyranniquement.
Il n’y a point encore de liberté, si la puissance de juger n’est pas séparée de la puissance législative et
de l’exécutrice. Si elle était jointe à la puissance législative, le pouvoir sur la vie et la liberté des
citoyens serait arbitraire ; car le juge serait législateur. Si elle était jointe à la puissance exécutrice, le
juge pourrait avoir la force d’un oppresseur.
Tout serait perdu, si le même homme, ou le même corps des principaux, ou des nobles, ou du
peuple, exerçaient ces trois pouvoirs : celui de faire des lois, celui d’exécuter les résolutions
publiques, et celui de juger les crimes ou les différends des particuliers ». MONTESQUIEU, L’Esprit
des lois, livre IX.
Jurisprudence

The Judges and the manners of passing

Judgement: Montesquieu
By Advocatetanmoy on April 19, 2020

In what Governments, and in what Cases, the Judges ought to determine according
to the express Letter of the Law.
THE nearer the government approaches towards a republic, the more the manner of judging
becomes settled and fixt: hence it was a fault, in the republic of Sparta, for the Ephori to
pass such arbitrary judgements, without having any laws to direct them. The first consuls, at
Rome, pronounced sentence in the same manner as the Ephori; but the inconveniency of this
proceeding was soon felt, and they were obliged to have recourse to express and determinate
laws.
In despotic governments there are no laws; the judge himself is his own rule. There are laws
in monarchies; and, where these are explicit, the judge conforms to them; where they are
otherwise, he endeavours to investigate their spirit.
In republics, the very nature of the constitution requires the judges to follow the letter of the
law; otherwise, the law might be explained to the prejudice of every citizen, in cases where
their honour, property, or life, are concerned.
At Rome, the judges had no more to do than to declare that the person accused was guilty of
a particular crime, and then the punishment was found in the laws, as may be seen in divers
laws still extant. In England, the jury give their verdict, whether the fact, brought under their
cognizance, be proved or not; if it be proved, the judge pronounces the punishment inflicted
by the law, and for this he needs only to open his eyes.
Of the Manner of passing Judgement
HENCE arises the different manner of passing judgement. In monarchies the judges choose
the method of arbitration: they deliberate together; they communicate their sentiments for the
sake of unanimity; they moderate their opinions, in order to render them conformable to those
of others; and  the lesser number is obliged to give way to the majority.
But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the
judges never entered into a consultation; each gave his opinion one of these three ways; I
absolve; I condemn; it does not appear clear to me: this was because the people judged, or
were supposed to judge. But the people are far from being civilians; all these restrictions and
methods of arbitration are above their reach; they must have only one object, and one single
fact, set before them; and then they have only to see whether they ought to condemn, to
acquit, or to suspend their judgement.
The Romans introduced fet forms of actions, after the example of the Greeks, and established
a rule, that each cause should be directed by its proper action. This was necessary in their
manner of judging; it was necessary to fix the state of the question, that the people might
have it always before their eyes: otherwise, in a long process, this state of the question would
continually change, and be no longer distinguished.
Hence it followed, that the Roman judges granted only the simple demand, without making
any addition, deduction, or limitation. But the prætors devised other forms of actions, which
were called ex bona fide, where the method of pronouncing sentence was left to the
disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a
saying among the French lawyers, that, in France, all actions are ex bona fide.
In what Governments the Sovereign may be Judge
MACHIAVEL attributes the loss of the liberty of Florence to the people’s not judging in a
body in cases of high-treason against themselves, as was customary at Rome. For this
purpose they had eight judges: but the few, says Machiavel, are corrupted by a few. I should
willingly adopt the maxim of this great man: but as, in those cases, the political interest
prevails, in some measure, over the civil, (for it is always an inconveniency that the people
should be judges in their own cause,) in order to remedy this evil, the laws must provide as
much as possible for the security of individuals.
With this view, the Roman legislators did two things; they gave the persons accused
permission to banish themselves before sentence was pronounced; and they ordained, that the
goods of those who were condemned should be sacred, to prevent their being confiscated to
the people. We shall see, in the XIth book, the other limitations that were set to the judicatory
power residing in the people.
Solon knew how to prevent the abuse which the people might make of their power in
criminal judgements. He ordained, that the court of Areopagus should re-examine the affair;
that, if they believed the party accused was unjustly acquitted, they should impeach him again
before the people; that, if they believed him unjustly condemned, they should prevent the
execution of the sentence, and make them re-judge the proceeding. An admirable law, that
subjected the people to the censure of the magistracy which they most revered, and even to
their own!
In affairs of this kind, it is always proper to throw in some delays, especially when the party
accused is under confinement; to the end that the people may grow calm, and give their
judgement coolly.
In despotic governments, the prince himself may be judge: but in monarchies this cannot be;
the constitution by such means would be subverted, and the dependent intermediate powers
annihilated; all set forms of judgement would cease; fear would take possession of the
people’s minds, and paleness spread itself over every countenance: the more confidence,
honour, affection, and security, in the subject, the more extended is the power of the
monarch.
We shall give here a few more reflections on this point. In monarchies, the prince is the party
that prosecutes the person accused, and causes him to be punished or acquitted; now, were he
himself to sit upon the trial, he would be both judge and party.
In this government the prince has frequently the benefit of confiscation; so that here again, by
determining criminal causes, he would be both judge and party.
Farther, by this method, he would deprive himself of the most glorious attribute of
sovereignty, namely, that of granting pardon; for it would be quite ridiculous of him to make
and unmake his decisions: surely, he would not choose to contradict himself.
Besides, this would be confounding all ideas; it would be impossible to tell whether a man
was acquitted or received his pardon.
Lewis XIII. being desirous to sit in judgement upon the trial of the duke ae la Valette, sent
for some members of the parliament and of the privy-council to debate the matter. Upon their
being ordered by the king to give their opinion concerning the warrant for his arrest, the
president de Believre said, “That he found it very strange a prince should pass sentence upon
a subject: that kings had reserved to themselves the power of pardoning, and left that of
condemning to their officers: that his majesty wanted to see before him at the bar a person,
who, by his decision, was to be hurried away into the other world: that the prince’s
countenance should inspire with hopes, and not confound with fears: that his presence alone
removed ecclesiastic censures: and that subjects ought not to go away dissatisfied from the
sovereign.” When sentence was passed, the same magistrate declared, “This is an
unprecedented judgement; to see, contrary to the example of past ages, a king of France, in
the quality of a judge, condemning a gentleman to death.”
Again, sentences passed by the prince would be an inexhaustible source of injustice and
abuse; the courtiers, by their importunity, would always be able to extort his decisions. Some
Roman emperors were so mad as to sit as judges themselves; the consequence was, that no
reigns ever so surprized the world with oppression and injustice.
“Claudius, (says Tacitus,) having appropriated to himself the determination of law suits and
the function of magistrates, gave occasion to all manner of rapine.” But Nero, upon coming to
the empire after Claudius, endeavoured to conciliate the minds of the people, by declaring,
“That he would take care not to be judge himself in private causes, [102] that the parties
might not be exposed, within the walls of a palace, to the iniquitous influence of a few
freedmen§.”
“Under the reign of Arcadius, (says Zozimus,) a swarm of calumniators spread themselves on
every side, and infected the court. Upon a person’s decease, it was immediately supposed he
had left no children; and, in consequence of this, his property was given away by a recript.
For, as the prince was surprizingly stupid, and the empress excessively enterprizing, she was
a slave to the insatiable avarice of her domestics and confidents; insomuch, that, to an honest
man, nothing could be more desirable than death.”
“Formerly, (says Procopius,) there used to be very few people at court; but, in Justinian’s
reign, as the judges had no longer the liberty of administering justice, their tribunals were
deserted, while the prince’s palace resounded with the litigious clamours of the several
parties.” Every body knows what a prostitution there was of public judgements, and even of
the very laws themselves, at the emperor’s court.
The laws are the eye of the prince; by them he sees what would otherwise escape his
observation. Should he attempt the function of a judge, he would not then labour for himself,
but for impostors, whose aim is to deceive him.
That, in Monarchies, Ministers ought not to sit as Judges.
IT is, likewise, a very great inconveniency, in monarchies, for the ministers of the prince to
sit as judges. We have still instances of states where there is a great number of judges to
decide exchequer causes, and where the ministers, nevertheless, (a thing most incredible,)
would fain determine them. Many are the reflections that here arise; but this single one will
suffice for my purpose.
There is, in the very nature of things, a kind of contrast between a prince’s council and his
courts of judicature. The king’s council ought to be composed of a few persons, and the
courts of judicature of a great many. The reason is, in the former, things should be undertaken
and conducted with a kind of warmth and passion, which can hardly be expected but from
four or five men who make it their sole business. On the contrary, in courts of judicature, a
certain coolness is requisite, and an indifference, in some measure, to all manner of affairs.
Of a single Magistrate
A magistracy of this kind cannot take place but in a despotic government. We have an
instance, in the Roman history, how far a single magistrate may abuse his power. Might it not
be very well expected that Appius, on his tribunal, should contemn all laws, after having
violated that of his own enacting? Livy has given us the iniquitous distinction of the
decemvir. He had suborned a man to reclaim Virginia, in his presence, as his slave: Virginia’s
relations insisted, that, by virtue of his own law, she should be consigned to them till the
definitive judgement was passed. Upon which, he declared, that his law had been enacted
only in favour of the father; and that, as Virginius was absent, no application could be made
of it to the present case.

SOURCE: The Spirit of Laws. Charles Louis de Secondat, Baron de Montesquieu (1689-1755)

Montesquieu and the Separation of Powers

Related Links: Works by French Enlightenment

Source: M.J.C. Vile's Chapter 4 in Constitutionalism and the Separation of Powers (2nd ed.) (Indianapolis,
Liberty Fund 1998).
Montesquieu
The name most associated with the doctrine of the separation of powers is that of Charles
Louis de Secondat, Baron Montesquieu. His influence upon later thought and upon the
development of institutions far outstrips, in this connection, that of any of the earlier writers
we have considered. It is clear, however, that Montesquieu did not invent the doctrine of the
separation of powers, and that much of what he had to say in Book XI, Chapter 6 of the De
l’Esprit des Loix was taken over from contemporary English writers, and from John Locke.1
Montesquieu, it is true, contributed new ideas to the doctrine; he emphasized certain elements
in it that had not previously received such attention, particularly in relation to the judiciary,
and he accorded the doctrine a more important position than did most previous writers.
However, the influence of Montesquieu cannot be ascribed to his originality in this respect,
but rather to the manner and timing of the doctrine’s development in his hands.
Long before the publication of De l’Esprit des Loix Montesquieu had become widely known
and respected through the publication of the Lettres persanes and the Considérations sur les
causes de la grandeur des Romains. The appearance of his great work was awaited with
impatience, and, once published, it quickly ran through several editions. When the work
appeared it was clearly not a piece of transient political propaganda, as had been many of the
writings we have so far surveyed—it was the result of twenty years of preparation, and was
intended as a scientific study of government, encompassing the whole length and breadth of
history, and accounting for all the factors affecting the political life of man. Montesquieu, in
his Preface, made it clear what the work contained:2 “I have laid down the first principles,
and have found that the particular cases follow naturally from them; that the histories of all
nations are only consequences of them; and that every particular law is connected with
another law, or depends on some other of a more general extent.” These principles are not
drawn from the writer’s prejudices, but “from the nature of things.” Montesquieu intends to
show the way in which the laws of each State are related to the nature and principles of its
form of government, to the climate, soil, and economy of the country, and to its manners and
customs.3 Such a scientific approach rules out the expression of personal likes and dislikes:
“Every nation will here find the reasons on which its maxims are founded.” No absolute
solutions are proposed, only the necessary relationships between the form of government and
the laws are exposed. This claim to scientific detachment gives to Montesquieu’s work a
status that no political pamphleteer could claim. The doctrine of the separation of powers is
embedded in this examination of cause and effect in the political system. It is no longer an
isolated doctrine, taken up when political advantage makes it expedient, and put off when no
longer needed; it is part of the relationships of a particular type of legal system; and
furthermore, it is a necessary characteristic of that system which has political liberty as its
direct aim. De l’Esprit des Loix was hailed as the first systematic treatise on politics since
Aristotle; not a desiccated, boring treatise for the expert alone, but rather as a work the
brilliant style of which made it an object of attention for all educated men. Indeed, Voltaire
caustically remarked that it was Montesquieu’s style alone which retrieved a work so full of
error.4
De l’Esprit des Loix was published in 1748, and so became available at the beginning of a
period of great change and development in Europe and America. Ideas which had blossomed
in the English Civil War, but which had been premature and unrealistic in terms of the then
existing society, could now find fertile ground in the British colonies of North America and
in France. Within the next fifty years men were to be called upon to create new institutions,
to attempt to establish new systems of government. Where better look for help than in a
manual where the principles of all governments were set out, and where none were more
sympathetically treated than those forms of government that set bounds to the exercise of
arbitrary power. For although Montesquieu claimed to be disinterested, his affection for
moderate government shines through the whole work, whether it be a moderate monarchy or
a moderate republic he is describing. But Montesquieu’s approach did lead to a good deal of
confused speculation about his own loyalties. Was he advocating monarchy as the best
system of government, or did he believe in a mixed system, or was he a good republican?
Evidence for all these points of view can be found in his great work, and, indeed, it was the
very fact that the De l’Esprit des Loix can be pressed into service in support of widely
differing views that added to its influence. By the end of the eighteenth century Montesquieu
was being quoted as an authority in England, France, and America, as conclusive evidence of
the rightness of very different systems of government.
Montesquieu started from a rather gloomy view of human nature, in which he saw man as
exhibiting a general tendency towards evil, a tendency that manifests itself in selfishness,
pride, envy, and the seeking after power.5 Man, though a reasoning animal, is led by his
desires into immoderate acts. Of the English, Montesquieu wrote that “A people like this,
being always in ferment, are more easily conducted by their passions than by reason, which
never produced any great effect in the mind of man.”6 In the realm of politics this is of the
greatest consequence: “Constant experience shows us that every man invested with power is
apt to abuse it, and to carry his authority as far as it will go.”7 However, this tendency
towards the abuse of power can be moderated by the constitution of the government and by
the laws, for, although by no means a starry-eyed utopian, Montesquieu, like the Greeks,
believed that the nature of the State’s constitution is of the greatest consequence. Thus
Montesquieu commenced his work with a description of the three different types of
government, their nature and their principles, for if he could establish these, then the laws
would “flow thence as from their source.”8 Let us look at the way in which Montesquieu
dealt with this problem of the control of power.
He defined three types of government: republican, monarchical, and despotic. In the first the
people is possessed of the supreme power; in a monarchy a single person governs by fixed
and established laws; in a despotic government a single person directs everything by his own
will and caprice.9 Republican government can be subdivided into aristocracy and democracy,
the former being a State in which the supreme power is in the hands of a part of the people,
not, as in a democracy, in the body of the people. In a despotic government there can be no
check to the power of the prince, no limitations to safeguard the individual—the idea of the
separation of powers in any form is foreign to despotic governments. In an aristocracy also,
though it be a moderate government, the legislative and executive authority are in the same
hands.10 However, in a democracy, Montesquieu argued, the corruption of the government
sets in when the people attempt to govern directly and try “to debate for the senate, to execute
for the magistrate, and to decide for the judges.”11 Montesquieu implied, then, that some
form of separation of powers is necessary to a democracy, but he did not develop this point.
The relevance of this to modern states is in any case rather slight, as Montesquieu believed
that democracy was only suitable to small societies.12 The most extended treatment he gives
of institutional checks to power, therefore, is to be found in his discussion of monarchy and
of the English Constitution. These two discussions, though obviously connected in spirit,
seem to be drawn from quite different sources, and to depend upon different principles. Each
system is praised for its virtues, but it is difficult to say that Montesquieu clearly favoured
one above the other. Here we have the source of the confusions on this subject.
The different elements in Montesquieu’s approach to the control of power can be attributed to
his two major sources of inspiration. On the one hand the influence of English writers,
especially Locke and Bolingbroke, is clear.13 From the time of the Civil War onwards the
volume of translations of English works on politics, and of French commentaries on England,
had grown, until in the early eighteenth century it reached large proportions. Dedieu points to
the importance of the exiled Huguenot journalists, lauding the virtues of the Glorious
Revolution, to the writings of anglophile Frenchmen, and to the work of historians who
emphasized the role of the English Parliament as a balance to the power of the Crown.14 In
particular Rapin-Thoyras, in his Histoire d’Angleterre in 1717, emphasized the importance of
a balanced constitution and mixed government. Voltaire in 1734 published a French edition
of his English Letters, in which he wrote of the “mélange dans le gouvernement d’Angleterre,
ce concert entre les Communes, les Lords et le Roy.”15 These, together with Montesquieu’s
travels in England, his acquaintance with Bolingbroke, and his knowledge of the writings in
the Craftsman, the paper for which Bolingbroke wrote,16 are the sources of the main ideas to
be found in his chapter on the English Constitution.
There are other sources, nearer at home, however, for Montesquieu’s attitude towards
monarchy. Here, as in his description of the English Constitution, Montesquieu was
concerned with the control of arbitrary power, but in a different way, and in a different
context. As an aristocrat, and président à mortier of the parlement of Bordeaux, he could
look back upon a long tradition of French resistance to the idea of despotism, not along the
lines of the English developments, but in terms of the power of the parlements, and of the
aristocracy and clergy of France as checks upon the royal authority.17 Bodin, though
asserting the indivisibility of the sovereign power of the King, nevertheless had advocated
that the parlements should have the power of remonstrance and of enregistering royal
enactments, so that they might judge these in the light of justice and equity.18 The
parlements had from time to time asserted their right to refuse to register royal edicts,
especially the parlement of Bordeaux, of which Montesquieu later became a président à
mortier.19 Boulainvilliers in 1727 had argued that all the unhappiness of France was due to
the way in which the nobility had declined in power, and it was in defence of a similar thesis
that Montesquieu approached the problem of the French monarchy.20 Thus when
Montesquieu defined monarchy, as opposed to despotism, as a system in which
“intermediate, subordinate, and dependent powers” played an essential role, and named these
intermediate powers as the nobility, the clergy, and the parlements, he was following a well-
trodden path in French thought.
It is Bodin, however, more than any other thinker, who would seem to have provided the
pattern for Montesquieu’s idea of monarchy; and if this is so, it is of great importance, for
Bodin’s views on sovereignty are bound to colour the whole nature of the approach to the
monarchical system.21 Bodin had, it is true, been concerned to champion a strong monarchy,
and to stress the concentration of power in the hands of the monarch, but he also stressed the
difference between a tyranny and a “royal” or “legitimate” monarchy. The latter is one in
which the king “yieldeth himself as obedient unto the laws of nature as he desireth his
subjects to be towards himselfe, leaving unto every man his naturall libertie, and the
proprietie of his own goods.”22 He accorded a role in the government, even if only a
subordinate one, to the States-General and the parlements. The pattern of Bodin’s royal
monarchy is very close to Montesquieu’s view of monarchy, and there is little evidence to
suggest that the latter saw any real modification in the structure of this form of government
that would approximate to a “separation of powers.” It is true that Montesquieu writes that to
form a “moderate government,” which of course includes monarchy, it is “necessary to
combine the several powers; to regulate, temper, and set them in motion; to give, as it were,
ballast to one, in order to enable it to counterpoise the other.”23 However, it is difficult to
place much weight upon this statement as an indication of Montesquieu’s belief in a
“separation of powers” in a moderate government, for as it stands it applies also to
aristocracy, which Montesquieu specifically characterizes as a system in which the legislative
and executive powers are in the same hands, and there is no other indication of a belief in the
separation of powers in a “monarchy.” On the contrary, Montesquieu clearly asserted the
indivisibility of the supreme power in the hands of the monarch,24 and the subordination of
the “intermediary powers.”25 We must, therefore, see Montesquieu’s moderate monarchy as
governed by law, but not as a limited monarchy in the English sense, nor as a system of
mixed government or the separation of powers.
Monarchy for Montesquieu was government by the law, through the recognized channels by
which the royal power must flow. The idea of a separation of agencies and functions, in part
at least, is implicit and explicit in his treatment of monarchy. The judges must be the
depository of the laws; the monarch must never himself be a judge, for in this way the
“dependent intermediate powers” would be annihilated.26 The king’s ministers ought not to
sit as judges, because they would lack the necessary detachment and coolness requisite to a
judge.27 There must be many “formalities” in the legal process in a monarchy in order to
leave the defendant all possible means of making his defence,28 and the judges must conform
to the law.29 In the monarchy, then, power is exercised in a controlled way, but it is not the
separation of powers in the sense in which we have used this term, at any rate as far as the
legislative and executive powers are concerned. There is considerable emphasis upon the role
of the judges, but “the prince is the source of all power,” and he clearly exercises both the
legislative and executive powers within the fundamental constitution.30 The checks upon the
royal power operate as a result of the existence of the various orders of society through which
that power must be channelled, but these “intermediate powers” do not even include a body
of representatives of the people. The people’s safeguard is in the principle of monarchy,
honour, which, by definition, infuses the rule of the monarch over his people.31 This, then, is
what Montesquieu seems to have considered best for France; it is the ancestral constitution
that had been for a time subverted, a constitution in which the King did not exercise a
capricious and arbitrary power, but not a constitution that can be described as embodying the
separation of powers. Indeed we must not be confused by the terminology Montesquieu uses.
Undoubtedly today his “monarchy” would be described as a despotism, if a benevolent one.
His constitutional monarch was in the tradition of French, not English, thought. It certainly is
not the monarchy that the seventeenth-century constitutional battles produced in England.
Even Charles I could hardly have hoped that a King of England would exercise the power
Montesquieu accords his monarch.32
When we turn from the description of the monarchy to the discussion of the English
Constitution we must first consider two difficulties. What were Montesquieu’s views on
mixed government, and what form of government did he believe England to have?
Montesquieu’s treatment of mixed government is characteristic of the problems of
interpretation he presents. At the beginning of his work, when enumerating the types of
government, he did not consider mixed government at all. There is no direct mention of this
idea which had been so important in English political thought for centuries, and which had
also figured in the work of Hotman and others in France. Montesquieu writes of “moderate”
governments, but these are the uncorrupted forms of monarchy and republic. At one point he
seems to be saying that a mixed constitution is impossible, or at least that he knows of none
that exists.33 Again the parallel with Bodin is striking. When Montesquieu turns in Book XI
to his discussion of England, however, he adopts a very different approach.
In this form of government the executive power should be in the hands of a monarch, and the
legislative power committed to the body of the nobles and to that body which represents the
people, “each having their assemblies and deliberations apart, each their separate views and
interests.”34 This is the fundamental constitution of a free state: “The legislative body being
composed of two parts, they check one another by the mutual privilege of rejecting. They are
both restrained by the executive power, as the executive is by the legislative.” Montesquieu
immediately follows this sentence with a reference to “these three powers,” by which he
seems to mean King, Lords, and Commons, not legislature, executive, and judiciary. This is
clearly a system of mixed government, and in the rest of Book XI Montesquieu refers to
mixed systems in glowing terms, whether in reference to the Gothic constitutions of Europe,
or to the harmony of power in the government of Rome when it consisted of a mixture of
monarchy, aristocracy, and democracy.35 How do we reconcile these references with the
earlier chapters of the work? One answer, perhaps, is simply to say that they are
irreconcilable and leave it at that. Montesquieu drew his inspiration from diverse sources and
was unable to integrate all his ideas into a single theoretical framework. It is hardly surprising
that he failed to reconcile completely the two models of government that he drew from Bodin
and from Bolingbroke. A rather different approach is to view Montesquieu’s descriptions of
despotism, monarchy, and republic as “ideal types” to which governments in practice would
only imperfectly conform, so that imperfect examples of actual governments might contain
elements of more than one type. There is some evidence that Montesquieu was thinking in
this way. For example he writes: “The nearer a government approaches towards a republic,
the more the manner of judging becomes settled and fixed.”36 And in Book VIII, where he
discusses the way in which the principles of the three forms of government can be corrupted,
he clearly envisages that States can exist that only imperfectly conform to the principles of
these three forms. Again, reference to Bodin may help us here. Bodin tells us that his three
forms of commonwealth are “ideal types.”37 He rejects altogether the idea of a mixed form
of State, because of the logical and practical impossibility of the division of the sovereign
power; but he distinguishes between forms of State and forms of government, allowing that
the form of government may differ from the form of State in which it operates, so that a
monarchy may, in reality, operate as an aristocracy or democracy, and also that combinations
of forms of government are possible.38 Montesquieu seems to view England in this light.
Thus he refers to it as “a nation that may be justly called a republic, disguised under the form
of a monarchy”;39 and again, he says that England “having been formerly subject to an
arbitrary power, on many occasions preserves the style of it, in such a manner as to let us
frequently see upon the foundation of a free government the form of an absolute
monarchy.”40
However, the problem is further complicated by the view that, in Book XI, Chapter 6,
Montesquieu was creating an ideal type of a “constitution of liberty,” with England as its
source, but that he was not describing the English Constitution as it actually existed. When
Montesquieu wrote of “England” here he was writing of an imaginary country, as in the
Lettres persanes: “l’Angleterre de Montesquieu c’est l’Utopie, c’est un pays de rêve.”41
Thus in certain respects Montesquieu’s statements in this chapter differ considerably from
what he actually knew to be the case in England. For example, he writes of the judiciary as if
it contained no professional judges, as if juries were judges of both fact and law. The reality
of English life was, as Montesquieu himself notes elsewhere, quite different from the ideal
situation depicted in XI, 6.42 If, therefore, this chapter also constructs an “ideal type,” we
must consider it on its merits, and not concern ourselves with the long controversy over the
correctness of Montesquieu’s description of the early-eighteenth-century constitution of
England.43 But how does this ideal type relate to his ideal types of monarchy, despotism, and
republic? Is it a fourth and quite distinct category, or a sub-category of one of them? These
questions are no doubt unanswerable, for they demand from Montesquieu a consistency he
does not have. We must accept these inconsistencies, and make the best of them.
This, then, is the framework within which is set the famous chapter on the English
Constitution, which has had greater influence than any other part of the De l’Esprit des Loix,
the chapter which further evolves the doctrine of the separation of powers. As with all the
previous writers we have surveyed, it is still not a “doctrine,” nor does the term “separation of
powers” appear in the text, although Montesquieu does assert that liberty is lost if the three
powers are not “separated.”44 What does Montesquieu have to say about the separation of
powers? A remarkable degree of disagreement exists about what Montesquieu actually did
say. Two broad streams of interpretation of his thought since the latter part of the eighteenth
century can be detected. One, largely associated with the continent of Europe, and with jurists
rather than political theorists, sees what we have called “the pure doctrine of the separation of
powers,” a thoroughgoing separation of agencies, functions, and persons. The other,
represented principally by the Fathers of the American Constitution, French writers such as
Benjamin Constant, and in a rather different way the English commentators of the eighteenth
and nineteenth centuries, has seen some form of a partial separation of powers, that is the
pure doctrine modified by a system of checks and balances.45 Some writers go further and
claim that the term “separation of powers” as applied to Montesquieu’s thought is an
exaggeration or misrepresentation, that he was concerned only with the establishment of the
“non-confusion” of powers,46 that he was trying to establish only the juridical independence
of the legislature and the government and not a separation of functions or persons,47 or that
he demanded only the “harmonious integration” of the powers of government.48 Let us take
each strand of the doctrine and of the idea of checks and balances in order to assess what
Montesquieu has to say in the De l’Esprit des Loix.
Montesquieu’s approach to the definition of the functions of government resembles a review
of the history of the uses of these concepts. Chapter 6 of Book XI begins: “In every
government there are three sorts of power, the legislative; the executive in respect to things
dependent on the law of nations; and the executive in regard to matters that depend on the
civil law.” This is clearly a restatement of Locke’s division of government functions, except
that Montesquieu does not use the term “federative power” for the executive power in regard
to external affairs. He still uses the term “executive” to cover all internal affairs, both
governmental and judicial; in other words he adopts, though only momentarily, the twofold
division of functions into legislative and executive so familiar to the seventeenth century and
earlier. Montesquieu then immediately redefines his terms. He affirms that he intends to use
the term “executive power” exclusively to cover the function of the magistrates to make
peace or war, send or receive embassies, establish the public security, and provide against
invasions. He now seems to wish to confine the term “executive power” to foreign affairs, for
he does not make it at all clear that the power to “establish the public security” has any
internal connotation—in other words, for Locke’s “federative power” read “executive
power.” Furthermore, Montesquieu announces that he will call the third power, by which the
magistrate punishes criminals or decides disputes between individuals, the “power of
judging.”49 This appears to represent an attempt to reconcile the authority of Locke with the
heightened appreciation of the separate existence of the judicial power as distinct from the
royal power which had emerged in the early eighteenth century. But this formulation leaves
out of account any “executive” acts other than foreign affairs, for the judicial power is
confined to disputes between the prince and the individual, and between individuals.
Montesquieu has not so far, then, managed to reconcile the seventeenth-century vocabulary
with the facts of eighteenth-century government; the vital distinction between the internal
acts of the executive and the acts of the judiciary is obscured. However, when he goes on to
use these terms he drops both definitions and uses them in a very much more modern way;
the three powers are now “that of enacting laws, that of executing the public resolutions, and
of trying the causes of individuals,” clearly including internal as well as external affairs in the
executive power. It is in this final sense that Montesquieu discusses the relationships between
the powers of government, and it is, of course, basically the modern use of these terms. The
importance of this transition in his use of words cannot be overemphasized. Not only does he
bridge the gap between early modern and later modern terminology, but he also obscures one
of the basic problems of a threefold definition of government functions. Locke and others had
been bothered by the fact that the “ruler” had two aspects to his function. He had to carry out
the law where it was clear and easily stated, principally in internal affairs, but he had also to
act in areas where the law could not be laid down in detail and where his prerogative must
remain almost wholly untrammelled, that is to say largely in external affairs. Thus between
them Locke and Montesquieu state at least four functions of government, not three: the
legislative, the executive, the “prerogative,” and the judicial. To bring the two middle ones
together as “executive” obscures the fact that in large areas of government activity those
responsible for day-to-day government decisions will not be “executing the law,” but
exercising a very wide discretion. However, the idea that there are three, and only three,
functions of government, was now established, except perhaps in the minds of those English
lawyers who had actively to define the prerogative powers of the Crown.
The most important aspect of Montesquieu’s treatment of the functions of government is that
he completes the transition from the old usage of “executive” to a new “power of judging,”
distinct from the putting of the law into effect, which becomes the new executive function.
However, it is in his treatment of the “power of judging” that Montesquieu’s greatest
innovatory importance lies. He treats the puissance de juger as on a par, analytically, with the
other two functions of government, and so fixes quite firmly the trinity of legislative,
executive, and judicial which is to characterize modern thought. Vitally important also is the
fact that he detaches this power from the aristocratic part of the legislature and vests it
unequivocally in the ordinary courts of the land, although the noble house of the legislature is
to have the role of a court of appeal. However, he still does not give the courts the position
they were soon to achieve in American thought; he does not accord the judicial branch an
exactly equal status with the legislative and executive branches, although he clearly intends
the judiciary to be independent of the other two. He sees these two agencies as permanent
bodies of magistrates,50 which represent real social forces, the monarch, the nobility, and the
people. The judiciary, however, “so terrible to mankind,” should not be annexed to any
particular class (état) or profession, and so becomes, in some sense, no social force at all
—“en quelque façon nulle”—representing everyone and no one.51 The judiciary, therefore, is
to be wholly independent of the clash of interests in the State, and this emphasis upon judicial
independence is extremely important for the development of the doctrine.
Montesquieu devotes considerable attention to the nature and composition of the judiciary,
but his approach to this problem is very much a reflection of his general scheme, and does not
bear much relation to the actual practice in England. In Book VI he had developed his ideas
about the judicial function in the differing forms of State. In a despotic government the
caprice of the prince is the basis of the law, and judging will be an arbitrary process without
rules. In a monarchy, however, the prince rules according to the laws; these must be relatively
stable and applied in a cool, aloof fashion. The judges in a monarchy, therefore (and
Montesquieu is clearly thinking of the parlements), must be learned in the law, professional,
and skilled in the reconciliation of potentially conflicting rules. But the closer the form of
government approaches that of a republic, the more fixed and settled are the rules of law, and
the more the judges must follow the letter of the law.52 In Rome, he avers, the judges had
only to decide matters of fact, and then the punishment was clearly to be found in the laws. In
England the jury gives its verdict on the facts and the judge pronounces the punishment
inflicted by the law, “and for this he needs only to open his eyes.”53 In Book XI he describes
a judicial system without professional judges. He rejects the idea of the judiciary power being
lodged in a “standing senate,” and affirms that it should be exercised by persons drawn
(tirées) from the people, on an ad hoc basis for fixed periods of short duration. In other words
a system of juries, which would apparently be judges of both fact and law, because the laws
would be so clear and explicit as to require no professional knowledge in the judges.
Two further aspects of Montesquieu’s treatment of the judiciary require emphasis. First, his
insistence that in republics the judges must abide by the letter of the law is of great
importance for later views of the judicial function. In England in medieval times the judges
were well aware that they “interpreted” the law, and from time to time were aware that they
were making law through “interpretation.” The role of the judges in making the law was also
recognized in the seventeenth century. But Montesquieu insists that to allow the judges to
exercise discretion is to expose the people to the danger that the private opinions of the
judges might render the laws uncertain, and that people would then live in society “without
exactly knowing the nature of their obligations.” The judges must be “no more than the
mouth that pronounces the words of the law, mere passive beings, incapable of moderating
either its force or rigour.” This mechanical view of the proper role of the judges can be found
in the writings of Lilburne and Harrington during the Civil War in England, and it is perhaps
from the latter that Montesquieu obtained this notion. Its influence in the nineteenth century
and in the early part of the twentieth, until the rise of the “sociological” school of
jurisprudence, was a formidable one indeed. Second, he emphasizes the importance of
judicial procedures as a protection for the individual. The speedy decision of cases may be
cheaper and easier, but the set forms of justice with all their expense and delay, even the very
dangers of the judicial procedure, are “the price that each subject pays for his liberty.” In
despotic governments speed is the only consideration, but in moderate governments long
inquiries and many formalities are necessary before a man is stripped of his honour or
property, or of his life. This insistence upon “due process,” a phrase Montesquieu does not
use but which again was current in seventeenth-century England, is of the essence of the
doctrine of constitutionalism, in the development of which his thought forms such an
important step.
By 1748, therefore, he had formulated the tripartite division of government functions in a
recognizably modern form. A good deal of change still had to take place in the ensuing two
hundred years in the exact connotation of these concepts, but basically the pattern was now
set. To legislate is to make the law; to execute is to put it into effect; the judicial power is the
announcing of what the law is by the settlement of disputes. These functions exhaust all the
“powers” of government, and they can be clearly differentiated from each other. Every
government act can be put into one or other of these categories. He also established the idea
of three branches of government—executive, legislature, and judiciary. So much for the
analytical separation of agencies and functions. But to demonstrate that Montesquieu had a
“theory of the separation of powers” in one sense or another we must go further. We must
show that he maintained that each function should be exercised by the appropriate agency of
government, and that he furthermore believed that the personnel of the three branches should
not coincide. It will become quite clear at a later stage that he did not maintain the pure
doctrine of the separation of powers, for he combined with it the ideas of mixed government
and checks and balances; however, that he did advocate that each agency should exercise, in
the main, only its own functions, is also perfectly clear. He was quite explicit here:
When the legislative and executive powers are united in the same person, or in the same body
of magistrates, there can be no liberty. . . . 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 joined to the executive power, the judge might behave with violence
and oppression. There would be an end to everything, were the same man, or the same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting laws,
that of executing the public resolutions, and of trying the causes of individuals.
The representative body ought not to exercise the executive function, because it is not suited
to it. The legislature ought not to be able to arraign the person entrusted with the executive
power, for this would turn the legislature into a body with arbitrary power. One cannot ignore
the clear meaning of these words. Montesquieu believed that the various functions of
government should be entrusted to distinct agencies of government, which would be largely
independent of each other in the exercise of these functions. The problem of the extent to
which each of these agencies should be able to control the others will be considered later.
We have seen that even given the attribution of distinct functions to separate agencies there
still arises the problem of personnel. Should the personnel of the agencies be quite distinct, or
should a degree of overlapping be allowed, or does it not matter at all? Montesquieu is less
clear on this point than on the other elements, although there are strong indications of his line
of thought. When writing of monarchy he does not envisage a separation of legislative and
executive functions in practice, so the question of personnel does not arise; however, he does
express shock at the idea that royal ministers should also sit as judges. There is, he says, a
sort of “contradiction” between the prince’s council and the courts of judicature. The former
requires a certain passion in the conduct of its affairs by a few men who identify themselves
with its business, whereas the courts demand a certain “sang-froid” and a measure of
indifference on the part of the judges.54 Once again we have this emphasis upon the
impartiality of the judiciary. In his discussion of the judiciary in Book XI, he is less explicit,
but the nature of the selection of the judges, or rather juries, is such that the problem of
whether or not they should simultaneously be legislators, or in the service of the king, hardly
seems to arise. These ad hoc juries are so impermanent that the problem of the overlapping of
membership with the more professional and permanent members of the other branches does
not arise.
The problem of the separation of the personnel of the legislative and executive branches in
the constitution of liberty was also very obliquely dealt with by Montesquieu. He paid little
attention to the servants of the king, other than ministers, and so there was no great scope for
discussions of the extent to which they should be allowed to be legislators as well. He did,
however, echo the English writers who condemn corruption of legislators—the English State
will perish “when the legislative power shall be more corrupt than the executive.” However,
one very important change from the contemporary English theory that he made, concerning
the composition of the executive and legislative branches, must be noted here. The English
writers saw the legislative power as held jointly by King, Lords, and Commons, even though
the King’s role might be seen as only a negative one. This sharing of the legislative power
was the foundation of their theory of the balanced constitution, and it continued to be so even
after Montesquieu’s work had received general acclaim as a eulogy of the English
Constitution. They therefore wrote of “the King-in-Parliament.” Montesquieu, however,
looked at the problem in a slightly different way. He wrote of the “legislative body” as
composed of “two parts,” with the executive separated from them. He did give to the
executive a veto power, which he described as having a share in legislation (prendre part à la
législation), but the emphasis of his usage is important. Whereas the English writers saw the
King as an essential part of the legislative branch itself, he saw the executive as a separate
branch which has a part to play in the exercise of the legislative function. The importance of
this difference of emphasis becomes clear when we compare the differing approaches of the
English and American writers at the end of the eighteenth century. This would suggest, then,
that Montesquieu saw the King, “the person entrusted with the executive power,” as outside
the legislature; if, therefore, the King really makes the decisions, and provided that he cannot
corrupt the legislature, it does not matter whether or not his subordinates are members of the
legislature or not. This view is supported by the fact that Montesquieu argued that if the
executive power is not in the hands of a monarch, but is committed “to a certain number of
persons selected from the legislative body, there would be an end then of liberty; by reason
the two powers would be united, as the same persons would sometimes possess, and would
be always able to possess, a share in both.” This would seem to be a reference to the
ministerial system in England, and to the view that if the monarch were no longer head of the
executive, or perhaps became a mere figurehead, with real power in the hands of his
ministers, then the concentration of power would be a genuine danger. Those who accuse
Montesquieu of being wholly unaware of the contemporary development of cabinet
government in England seem to overlook this passage. It should be borne in mind that when
he wrote, the King still exercised considerable power—Montesquieu looked forward to a
period when this would, perhaps, no longer be the case.
He did not, therefore, work out in detail the problem of the overlapping of the personnel of
the agencies of government, and he certainly did not issue a general prohibition. It is strange
that he made no direct reference to the problem of place-bills, which had been so important in
England. But the spirit of what he had to say seems clear enough; whenever it is a question of
the exercise of real power the agencies of government should not come under the control of a
single person or group of persons. “When the legislative and executive powers are united in
the same person, or in the same body of magistrates, there can be no liberty.” Detailed
analysis of Montesquieu’s words should not be allowed to blind us to what he had to say.
Having shown that all the elements of the pure doctrine of the separation of powers are to be
found, if not always clearly worked out, in Montesquieu’s thought, can we simply label him
as a protagonist of the pure doctrine? Clearly not, for he went further, and added to these
ideas the further dimension of a theory of checks and balances between the legislative and
executive powers, drawn largely from the theory of mixed government. He did not rely upon
a concept of negative checks to the exercise of power, checks dependent upon the mere
existence of potentially antagonistic agencies, charged with different functions of government
—again he went further, and advocated positive checks by placing powers of control over the
other branches in the hands of each of them. Perhaps the first important point to note about
his theory of checks and balances is that in Book XI it does not involve the judiciary or “the
power of judging” at all. The judiciary is not given any power over the other branches.
Equally, its independence is absolute, for it is not subject to control by the other branches,
except that the legislature can be a supreme court of appeal in order to mitigate the sentence
of the law. The courts, in other words, being merely the mouthpiece of the law, being en
quelque façon nulle, and not representing any social force in the State, are not seen as a
check, nor is it necessary to check them. The difference between this view of judicial power
and that of Chief Justice Marshall in Marbury v. Madison, fifty-five years later, is of great
interest although it is true that Montesquieu elsewhere saw the French parlements with their
rights of remonstrance as checks to the legislative power.
The relationships between the executive and legislative branches, however, exhibit clearly the
characteristics of the idea of checks and balances that we saw in the English theory of the
balanced constitution. The executive officer ought to have a share in the legislative power by
a veto over legislation, but he ought not to have the power to enter positively into the making
of legislation. The executive should have the power of calling and fixing the duration of
meetings of the legislative body. In this way the executive branch will be able to prevent the
encroachments of the legislature on its authority, thus ensuring that the legislature will not
become despotic. The legislature should not, however, have the right to stay (arrêter) the
executive, but it should have the power to examine the manner in which its laws have been
executed. Whatever the results of this examination, the legislature should not be able to judge
the person, or the conduct of the person, who executes the law. However, the counsellors
upon whose advice unwise policies are adopted may be punished, and for this purpose the
power of impeachment must lie in the legislature, with the Lower House accusing, and the
Upper House judging. “Here, then, is the fundamental constitution of the government we are
treating of. The legislative body being composed of two parts, they check one another by the
mutual privilege of rejecting. They are both restrained by the executive power, as the
executive is by the legislative.” Montesquieu, though he had great faith in the power of
constitutions to mould the public character of a State, was nevertheless sufficiently aware of
sociological necessity to see the importance of having the essential parts of the State as
representative of different interests in society; and so he adapted the theory of mixed
government to the underpinning of a system of divided powers, in order that the varying
“passions and interests” of the different classes of society should ensure that no one man or
group of men gained arbitrary power. This does not mean that he threw overboard the notion
of the separation of powers. It still remained as the foundation of the constitution of liberty,
as he frequently reasserted, but certain quite specific and limited powers were attributed to
the executive to enable it to control the legislature, and to the legislature to control the
subordinate members of the executive. These control mechanisms did not constitute a
“fusion” of powers; they were links between the branches of government, each restricted to
the exercise of its appropriate function. The practical problems of these controls, the extent to
which they embodied an opportunity for co-ordination, or alternatively for deadlock, between
the branches, was not yet clearly perceived, although Montesquieu at a later stage devoted
some time to a discussion of the nature of party politics in England, with its division of the
legislative and executive powers.55 Thus Montesquieu clearly did see a broad separation of
functions among distinct agencies of government, with a separation of personnel, to which
was added the need for a set of positive checks to the exercise of power by each of the two
major, permanent, agencies of government to prevent them from abusing the power entrusted
to them. The ideas of independence and interdependence which Bolingbroke developed are
useful here for the understanding of this system. Without a high degree of independent power
in the hands of each branch they cannot be said to be interdependent, for this requires that
neither shall be subordinate to the other. At the same time a degree of interdependence does
not destroy the essential independence of the branches.
Montesquieu was aware of the problem of ensuring that a system of government so nicely
balanced should not result in complete deadlock, that the three bodies, King, Lords, and
Commons, by being poised in opposition to each other should not produce merely a state of
“repose or inaction.” But he dismissed the problem by arguing that in the nature of things
they are forced to move (par le mouvement nécessaire des choses), and forced to move in
concert. The question of whether he saw the State as an organic unity in which the articulated
parts formed a single unit exercising the sovereign power, or whether he destroyed the unity
of sovereignty by dividing it up into parts which were to be distributed among quite distinct,
autonomous bodies, related to each other in a mechanistic fashion only, is probably
impossible to answer, because it is doubtful if he ever formulated the problem in either of
these ways.56 He seems to have a unitary view of the supreme power when he is discussing
his three forms of State in the initial books of De l’Esprit des Loix, but there is little clue to
his attitude in Book XI, Chapter 6. On the question of legislative supremacy he seems, though
less explicitly, to hold much the same position that we attributed above to John Locke. The
legislative function is logically prior to the rest in the sense that the executive and judicial
functions are concerned with putting the law into effect; but the legislative branch must be
limited in its power to interfere with the acts of the executive branch, otherwise the former
will be able to wield arbitrary power. Montesquieu does not, however, emphasize the
supremacy of the law, or of the legislative function, to anything like the extent Locke had
done, and as a consequence there seems to be a good deal more disagreement between them
on this point than was probably the case.
What then did Montesquieu add to seventeenth- and early-eighteenth-century English thought
on the separation of powers? Clearly his view of the functions of government was much
closer to modern usage than his predecessors’—he was one of the first writers to use
“executive” in a recognizably modern sense in juxtaposition with the legislative and judicial
functions. His emphasis upon the judicial function and upon the equality of this function with
the other functions of government, though (as we have seen) by no means altogether new,
was nevertheless of great importance. The judiciary had a position of independence in his
thought greater than that of earlier English writers, and greater than it was in practice at that
time in England. Although he used the idea of mixed government he did not allow it to
dominate his thought, as had the writers on the balanced constitution in England;
consequently he articulated the elements of the constitution in a different way, and a clearer
view of the separation of legislative and executive branches was now possible. He had gone a
long way, in fact, towards the transformation of the theory of mixed government from its
position as a doctrine in its own right into a set of checks and balances in a system of
agencies separated on a functional basis. Perhaps the most significant difference between
Bolingbroke and Montesquieu is that the latter placed the King outside the legislature. In
some ways, then, Montesquieu moved back towards the emphasis that was placed during the
Protectorate upon separate and distinct powers; he was certainly closer to the pure doctrine
than his English contemporaries, but he did not go all the way. He had a more realistic, more
articulated system, with an amalgam of seventeenth- and eighteenth-century ideas woven into
a new fabric. Sometimes it is difficult to know whether the changes he introduced into the
stream of political thought on constitutionalism were wholly intentional, or whether they
resulted rather from his method of writing. We shall never know—but it does not matter. The
very defects of his style gave him an influence which a more precise and less interesting
thinker would never have achieved, but more important than this is the fact that by changing
the emphasis that English writers of the preceding half century had placed upon legislative
supremacy and the mixed constitution, he paved the way for the doctrine of the separation of
powers to emerge again as an autonomous theory of government. This theory was to develop
in very different ways in Britain, in America, and on the continent of Europe, but from this
time on, the doctrine of the separation of powers was no longer an English theory; it had
become a universal criterion of a constitutional government.
[1. ]On the English origin of Montesquieu’s ideas, see J. Dedieu, Montesquieu et la tradition politique
anglaise en France, Paris, 1902.
[2. ]The standard edition of De l’Esprit des Loix is by J. Brette de la Gressaye, Paris, 1950, 4 vols.
Quotations are from the translation by Thomas Nugent, ed. by F. Neumann, New York, 1949.
[3. ]De l’Esprit des Loix, Book I, Ch. 3.
[4. ]L’ABC, quoted by W. Struck—Montesquieu als Politiker, Berlin, 1933, p. 4.
[5. ]See the discussion of Montesquieu’s concept of human nature in W. Stark, Montesquieu: Pioneer
of the Sociology of Knowledge, London, 1960, Ch. IV.
[6. ]De l’Esprit des Loix, XIX, 27.
[7. ]Ibid., XI, 4.
[8. ]Ibid., I, 3.
[9. ]Ibid., II, 1.
[10. ]Ibid., II, 3.
[11. ]Ibid., VIII, 2.
[12. ]Ibid., VIII, 16.
[13. ]On Locke see Dedieu, op. cit., Ch. VI; on Bolingbroke see Robert Shackleton, “Montesquieu,
Bolingbroke and the Separation of Powers,” French Studies, Vol. III, 1949.
[14. ]See Dedieu, op. cit., p. 71 for a list of French historical works on England 1689–1748, and pp. 73–
74 for a list of English political works translated into French during the same period.
[15. ]Lettres sur les Anglois, Basle, 1734, p. 56.
[16. ]Shackleton, op. cit.
[17. ]See W. F. Church, Constitutional Thought in Sixteenth-Century France, Harvard, 1941, esp. Ch. I.
[18. ]Church, op. cit., p. 221.
[19. ]Shackleton, Montesquieu, pp. 280–1.
[20. ]See Neumann’s Introduction, pp. xxiv–xxvii.
[21. ]For a general discussion of Bodin and Montesquieu see A. Gardot, “De Bodin à Montesquieu,” in
La pensée politique et constitutionnelle de Montesquieu, Paris, 1952.
[22. ]Six Bookes, II, 3, p. 204.
[23. ]De l’Esprit des Loix, V, 14.
[24. ]Ibid., II, 4.
[25. ]Shackleton, in Montesquieu, p. 279, describes how the emphasis upon the subordinate character
of the intermediary powers was a later insertion in the text by Montesquieu, perhaps as a precaution
against royal displeasure. However, this insertion would seem to be in the general spirit of
Montesquieu’s view of monarchy.
[26. ]De l’Esprit des Loix, VI, 5.
[27. ]Ibid., VI, 6.
[28. ]Ibid., VI, 2.
[29. ]Ibid., VI, 3.
[30. ]Ibid., II, 4, and V, 10.
[31. ]Ibid., III, 10.
[32. ]Thus K. von Raumer argues that Montesquieu saw, even in the France of Louis XV, the idea of
freedom embodied in Europe, as opposed to the slavery of Asia. Although this freedom was threatened
it was still a reality, such that France was still a moderate monarchy, not a tyranny. (“Absoluter Staat,
korporative Libertät; persönliche Freiheit,” Historische Zeitschrift, Vol. 183, Munich, 1957, p. 59.)
[33. ]Ibid., VIII, 21. W. Struck argues that Montesquieu’s principles of the three forms of government are
by definition incapable of being blended into a mixed form. Montesquieu als Politiker, Historische
Studien, 228, Berlin, 1933, pp. 68–69.
[34. ]All further quotations in this chapter are from Book XI, Ch. 6 of De l’Esprit des Loix unless
otherwise noted.
[35. ]Ibid., XI, 12.
[36. ]De l’Esprit des Loix, VI, 3.
[37. ]Six Bookes, II, 1, p. 183.
[38. ]Ibid., II, 12, pp. 199–200; and II, 7, pp. 249–50.
[39. ]De l’Esprit des Loix, V, 19.
[40. ]Ibid., XIX, 27. In this reference and the preceding one Montesquieu does not refer to England by
name, but it is generally accepted that it was to England that he was referring.
[41. ]B. Mirkine-Guetzévitch, in La pensée politique et constitutionnelle de Montesquieu, p. 14. Mirkine-
Guetzévitch asserts that none of Montesquieu’s contemporaries thought that he was writing of the
reality of English political life.
[42. ]Ibid.
[43. ]Franz Neumann’s introduction to The Spirit of the Laws, New York, 1949, pp. liv–lv.
[44. ]“Il n’y a point encore de liberté si la puissance de juger n’est pas séparée de la puissance
législative et de l’exécutrice.”
[45. ]See the discussion by Charles Eisenmann, in La pensée politique et constitutionnelle de
Montesquieu, pp. 135 ff.
[46. ]M. Barckhausen, Montesquieu, ses Idées et ses Oeuvres, Paris, 1907, p. 95.
[47. ]C. Eisenmann, L’Esprit des Lois et la séparation des pouvoirs in Mélanges R. Carré de Malberg,
Paris, 1933, pp. 166 ff.
[48. ]Stark, op. cit., p. 21.
[49. ]Montesquieu always uses “la puissance de juger,” not “le pouvoir judiciaire.”
[50. ]He justifies this stability in the legislative and executive powers by declaring that “they are not
exercised on any private subject.”
[51. ]Franz Neumann, op. cit., p. lviii.
[52. ]De l’Esprit des Loix, VI, 3.
[53. ]Ibid.
[54. ]De l’Esprit des Loix, VI, 6.
[55. ]XIX, 27.
[56. ]Stark, op. cit., Ch. I, discusses this problem, arguing that Montesquieu had a semi-organic rather
than a mechanistic concept of the State.

The Rise Of Judicial Supremacism

David Green, 20 June 2015
Justice Collins’ ruling that an electronic tag must be removed from a 39-year old Somali
imam is another step in the direction of judicial supremacism at the expense of parliamentary
democracy. DD, as the court called him, is believed to have helped the terrorist group al-
Shabaab to recruit vulnerable young people. Justice Collins ruled that he suffered from a
mental condition that led him to think that the tag contained a bomb and a camera and
decided that requiring him to wear the tag constituted ‘inhuman or degrading treatment’
under Article 3 of the European Convention on Human Rights.
This and similar perverse decisions by judges puts into doubt the liberal conception of law
that has been accepted in Britain since the age of absolutism was ended by the revolution of
1688. In Tudor and Stuart times monarchs had got into the habit of claiming that laws were
commands from them that must be obeyed. The rival view is that laws are the accepted rules
for civilised living together that have come to be accepted, either from the passage of time or
because Parliament has given formal consent. The authorities can’t just make up laws as they
go along.
Justice Collins is an exponent of the authoritarian view of law as the command of a ruler. He
commands and others must obey. This notion is the complete opposite of our democratic
system of popular consent through a representative parliament.
This year we have been celebrating Magna Carta, one of the most prominent historic
reminders to rulers that they too must obey the law. There had been similar declarations in
Anglo-Saxon times and earlier still during the Roman republic. It was not only kings who
were under the law, but judges too, according to Cicero in On the Laws: ‘the laws are in
charge of the magistrate’, which made ‘a magistrate a law that speaks’. The sentiment was
repeated by Montesquieu in The Spirit of the Laws (1748): Judges are ‘only the mouth that
pronounces the words of the law, inanimate beings who can moderate neither its force nor its
rigour’.
Parliament should reverse the ruling by Act of Parliament, but if it fails to do so, the
authorities should consider sectioning DD under the Mental Health Act. Under section 2 an
approved mental health professional can apply to admit someone to hospital if they are
suffering from a mental disorder and ought to be detained for their own safety or to protect
others. Two doctors must agree to detention for up to 28 days. This would allow time for the
Crown Court to detain DD under section 37 of the Act, which it can do either before or after a
crime has been committed. Justice Collins accepted that DD was mentally ill and so the only
question is whether his mental condition is a threat to his own safety or that of others. Given
that the High Court has accepted that he can’t tell the difference between a bomb and an
electronic ankle tag the size of a wrist watch, there may not be much room for doubt.

Comment on “The Rise Of Judicial Supremacism”

rh156 says:
The idea that Tudor and Stuart monarchs were ever absolute rulers is pure tosh. Taxation was the
primary reason. Monarchs were reliant on Parliament for the grant of taxes. Certain duties were voted
to a monarch for life such as customs and excise but most of the money needed, especially in times of
war, had to be voted by Parliament. Parliament was also very active in the fields of religion and foreign
affairs
As for judicial activism, it could be argued that because the Common Law proceeds by precedent it is
built into the English judiciary. However, properly drafted Acts of Parliament could prevent much of the
seeming nonsense which occurs. Cases involving human rights issues occur simply because the British
HRA and the European Convention on Human Rights are poorly drafted, both containing vague
statements of principle which allow inordinate opportunity for interpretation. The answer is to withdraw
from the Convention and repeal the HRA.
A new Act is not required because the essential protections for the individual already existed before
either the Convention or the HRA were formulated.

Montesquieu The Spirit of the Laws

March 9, 2019 by politicalscience
Montesquieu The Spirit of the Laws. In retrospect, we had identified three
different ways of life in France before the revolution: that of the orders of the
feudal monarchy, that of the absolute king and his servants, the bureaucrats and
their equal subjects, and that of those corners of society which supported the new
thought and freedom. But in Montesquieu’s time, the distinction was not so clear.
An examination of Montesquieu’s life provides a view of the eighteenth century as
it impinged upon Montesquieu. He was a feudal proprietor, wine merchant,
parliamentarian, academician, man Of letters. Although he took his place briefly in the
Parliament of Bordeaux and toyed with the notion of serving the king in foreign relations, he
principally worked to maintain his family and took part in the academies and other less
formal gatherings Of like-minded men and women. Here we shall first consider
Montesquieu’s life as a noble landowner, then as an eighteenth-century man of letters, and
finally as the author of Montesquieu’s The Spirit of the Laws. Then we shall proceed to the
book itself and its reception.

The noble landowner

Montesquieu’s family first appears among Bordeaux’s provincial nobility, when Jean de
Secondat, whose wife was related to the Plantagenets, was ennobled in 1562. The title was
raised to a barony in ‘606 by Henry IV. Two generations later, Montesquieu’s grandfather,
whose wife was the first president of the parliament, became President a Monier in the
Parliament of Bordeaux. (The office of president was bought, sold, and inherited; there were,
in the parliament, several Presidents, a Mortier, who served on various panels as judges and
administrators, and one First President.)
This family offered its members the choice of either the parliamentary nobility of the robe or
the military nobility of the sword; at the same time, it saw to it that the family lands and
goods all stayed within the family, that the children beyond those needed to continue the
family joined religious orders, and that those who took up either robe or sword married well.
This was a noble family, carefully built and maintained, education, but upon the moral
education embedded in the practices of everyday life of a school which forced a young man
“to betray his comrades every day in a hundred petty ways” and ruined “the hearts of all
those within” (Oeuvres, Vol. 2, Pensies 218 (1758)). After graduating, Montesquieu was sent
to study law at the University of Bordeaux, taking a licentiate after three years. He then
returned to Paris, continuing his study of law in Paris’s courts, keeping notes as always.
Little is known about this period of his life (1708-13), but he maintained an acquaintance
with Pere Desmolets and Nicholas Freret, who was probably known to him from College
(Oeuvres, vol. 0 3, p. 729). He spoke extensively about China with a Chinese visitor, writing
a summary in his notebooks that points toward both the Persian Letters and The Spirit of the
Laws (Oeuvres, VOL 2, pp. 924-63). In 1713, after his father’s death, Montesquieu returned
to Bordeaux to take up his inheritance. He bought himself a place in the parliament as a
counselor and married a woman who brought considerable lands and wealth with her. Little is
known of her except that she was a practicing Protestant and the trusted steward of his lands
during his absences. In 1716 his uncle died, leaving Montesquieu the family estates and the
presidency a Mortimer. Montesquieu, now twenty-seven years old, had become a provincial
nobleman of some consequence in three years.
These were tranquil years in the Parliament of Bordeaux; the ordinary judicial and
administrative activities were primary. There were few moves made to revive and exercise
the right of remonstrance,  that is, the right to judge the legality of new laws, and no claim to
be the representatives of the nation, unlike some of the parliaments in the later period closer
to the revolution. Montesquieu began in the court at its lowest rank, as a counselor in the
criminal court, and moved up as far as the senior president in that court.
He served as the commissioner of prisons, was one of the counselors charged with overseeing
the assignment of those condemned to the galleys, and could not have avoided participating
in interrogations that relied upon torture. His activities were always as a member of a panel of
judges. The chief issues in the parliament in those years had to do with the complicated rules
of precedence, both as they applied to relations between counselors and presidents, and in
respect to the disregard of those same rules by the governor of the region, the Marechal
Berwick, who was to become a life long friend of Montesquieu’s.
Montesquieu’s attendance in the sessions, never among the best, became so infrequent after
the Persian Letters’ publication in 1721 that there appear even to have been murmurs of
discontent in the parliament. When Montesquieu sold the life interest in his presidency in
1728, his friend the President Barbot tried to persuade him to remain by arguing that,
although the work was not pleasant, it was routine and easy, that it “scarcely distracts you
from your other occupations or amusements” (Oeuvres, vol. 3, p. 819). Montesquieu
answered that not the questions but the proceedings were incomprehensible to him and that it
was tiresome “to see fools in possession of the very talent that fled me, so to speak”
(Oeuvres, vol. 2, Pensies 213(4)). There is no suggestion on either man’s part that the
parliament could be anything more than a law court and a job.
As a great landowner, Montesquieu took care to maintain his customary rights and to increase
his land-holding. He was constantly involved in complicated legal actions and in buying land
near his own. He advised his daughter to invest her money inland and that legal actions were
a part of being a great lady with much land (Oeuvres, vol. 3, pp. 1271, 1344). But
Montesquieu was a modern farmer concerned with the market for his goods and a nobleman
collecting his feudal goods.
He was concerned with his vines, his wine, and the course of international trade in wine. In
1727 he found himself in conflict with the Intendant, writing a memorandum arguing that he
knew best what 41 to do with his land and wine and objecting to the controls on production
and export. The Intendant responded in a note to his superior with scorn for the enlightened
landowner’s excessive cleverness (Oeuvres, vol. 3, p. 264). Here, the nobleman’s
presumption of independence, even while defending economic freedoms, runs against the
planning and even the king’s servant’s egalitarianism.
When the market for his wine collapsed, largely because wars made it impossible to ship it to
England, he stayed in La Brede and did not spend his customary time in Paris. Thus, he wrote
in 1742, “But I am afraid that if the war continues, I shall be forced to go and plant cabbages
at La Brede. In Guyenne, our commerce will soon be on its last legs; our wine will be left on
our hands, and you know that it is our entire wealth” (Oeuvres, vol. 3, p. 1017). In sum, in a
letter to a woman friend in Paris from La Brede, he wrote, “I hear people talk of nothing but
grapevines, hard times, and lawsuits, and fortunately, I am fool enough to enjoy all that, that
is, to be interested in it” (Oeuvres, vol. 3, p. 1383). He did not conduct his life as a man of
letters at the expense of his life as a landowner.
Montesquieu followed the family tradition in his arrangements for his children and estates.
He educated his son to take over the prurient when it returned to his family upon the man’s
death to whom he had sold his life-interest. Although his son briefly became a counselor, he
wanted to be a naturalist and refused to take up the prep/knee, which Montesquieu
subsequently sold altogether. When it became clear to Montesquieu that his son was not
likely to have any children, he married his daughter Denise to a distant cousin, Godefroy de
Secondat. He arranged for the estate’s hulk to go to her children so that it would stay in the
family.
The man of letters
In 1715, soon after returning to Bordeaux to take up the life of a provincial nobleman.
Montesquieu was elected to the Academy of Bordeaux and remained active in it for the rest
of his life, becoming its mainstay and connecting to Paris. The provincial academies offered a
protected institutional environment in which the urban, educated nobles, the clergy, and the
third estate members met to conduct secular discussions of scientific, moral, and literary
questions altogether. Papers were presented and discussed by the members of the Academy.
Montesquieu reported primarily on scientific observations, but his discontent with this
science is illustrated by his remarks that “these systems” are “no sooner set up than they are
overthrown” (Oeuvres, vol. 3, p. 52).
He also offered several papers on social practices in other countries and times and on duties
and natural law, contrasting the performance of duties following natural law to a totally
disordered pursuit of the moment’s desire. In one of the sections that remain from the Traite
des devoirs, Montesquieu never finished for publication, he again follows the traditional
formula, saying that the monarchy is based on the spirit of obedience (Oeuvres, vol. 3, p. I
69). This last comment indicates the distance his thought was to travel before he wrote The
Spirit of the Laws, where honor is said to be the principle of action in a monarchy.
In 1721 Montesquieu published the Persian Letters anonymously and began to move
increasingly in Parisian and European literary society. As a real loss for intellectuals
(Oeuvres, vol. 3, pp. 1343-1344). He seems to have taken advantage of social environs in
which the rules and hierarchy of the absolute monarchy were not enforced. In 1728, he
arranged to become a member of the French Academy with his friends’ help and what must
have been a political interview with Cardinal Fleury, the First Minister of Louis XV. He did
not become an active member of that academy until he resumed his regular visits to Paris
after his European tour.
Those of Montesquieu’s writings that seem to have been directed to this Parisian audience
portray exotic settings, pretty women, harmless adventure, and Roman virtue. Only Rousseau
took offense, saying of one such piece, “If, for example, there is any moral purpose in the
Temple de Guide, it is thoroughly obfuscated and spoiled by the voluptuous details and
lascivious images. What has the author done to cover it with a gloss of modesty? He has
pretended that this work was the translation of a Greek manuscript and has fashioned the
story about the discovery of this manuscript in the manner most likely to persuade his readers
of the truth of his tale… But who has thought to accuse the author of a crime of this lie or to
call him a deceiver for it?” (Rousseau, Reveries (New York, 1982), p. 49). The only paper of
Montesquieu’s found in the files of the Club de l’EntresoI is the Dialogue de Sylla et
d’Eucrate. Still, its only imaginable connection with the club’s interests is the criticism
Montesquieu implies by joining Sulla’s noble-sounding talk of social reform with his great
violence and self-delusion.
Contents
Introduction
Principal events in Montesquieu’s life
Bibliographical note
Translators’ preface
List of abbreviations
Author’s foreword
Preface
Figure
Part 1
Book 01. On laws in general
Book 02.On laws deriving directly from the nature of the government
Book 03.On the principles of the three governments
Book 04.That the laws of education should be relative to the principles of the government
Book 05.That the laws given by the legislator should be relative to the principle of the
government
Book 06.Consequences of the principles of the various governments about the simplicity of
civil and criminal laws, the form of judgments, and the establishment of penalties
Book 07.Consequences of the different principles of the three governments about sumptuary
laws, luxury, and the condition of women Copyrighted Material Contents
Book 08.On the corruption of the principles of the three governments
Part 2
Book 9. On the laws in their relation with defensive force
Book 10. On laws in their relation with the offensive force
Book 11. On the laws that form political liberty in its relation with the constitution
Book 12. On the laws that form political liberty about the citizen
Book 13. On the relations that the levy of taxes and the size of public revenues have with
liberty
 Part 3
Book 14. On the laws in their relation to the nature of the climate
Book 15.How the laws of civil slavery are related to the nature of the climate
Book 16.How the laws of domestic slavery are related to the nature of the climate
Book 17.How the laws of political servitude are related to the nature of the climate
Book 18.On the laws in their relation with the nature of the terrain
Book 19.On the laws in their relation with the principles forming the general spirit, the
mores, and the manners of a nation
Part 4
Book 20. On the laws in their relation to commerce, considered in its nature and its
distinctions
Book 21. On laws in their relation to commerce, considered in the revolutions it has had in
the world
Book 22.On laws in their relation to the use of money
Book 23.On laws in their relation to the number of inhabitants
Part 5
Book 24. On the laws in their relation to the religion established in each country, examined in
respect to its practices and within itself
Book 25. On the laws in their relation with the establishment of the religion of each country,
and Of its external police
Book 26. On the laws in the relation, they should have with the order of things upon which
they are to enact
Part 6
Book 27.On the origin and revolutions of the Roman laws on inheritance
Book 28.On the origin and revolutions of the civil laws among the French
Book 29.On the way to compose the laws
Book 30.The theory of the feudal laws among the Franks in their relation with the
establishment of the monarchy
Book 31.The theory of the feudal laws among the Franks in their relation to the revolutions of
their monarchy
Bibliography
Index of names and places
Index of works cited
The author of The Spirit of the Laws
Montesquieu set forth on an extended trip in 1728, traveling primarily to Italy and England.
He did not return to La Brede until 1731, when he began the work that led directly to writing
The Spirit of the Laws. What precisely, if anything, Montesquieu originally expected from
this tour is not clear.
He might already have had the writing of The Spirit of the Laws in mind. In 1747 he wrote in
his Preface that he had discovered his principles twenty years previously, that is, before
setting out. There is no direct evidence for this, but parts of Book 3 on governments’
principles have been identified as among the first written in the only existing manuscript
(Oeuvres, vol. 3, pp. 567—576). Also, there is some evidence that at the beginning of his trip,
Montesquieu harbored the idea of employment in foreign affairs.
Montesquieu’s first lengthy stop on his trip was in Vienna. He began to keep a diary of his
journey; he kept notes on and recorded his impressions of the art objects, personalities, and
governments he encountered, and he kept reminders of books to be bought or people to see.
The journal still exists for Italy and Germany’s trip, but not for the trip to England. In Vienna,
he met Prince Eugene of Savoy and spent time with his circle, which was notorious for its so-
called libertines and free-thinkers.
In Venice, his next major stop, he sought out Antonio Conti, a churchman and one of the
most effective popularizers of Newton’s theories in Italy. Conti was in close contact with the
circle of Prince Eugene and with the leading scientists and scholars of Italy. Conti gave
Montesquieu letters of introduction to northern Italy’s leading biologists and the scholars
Ludovico Muratori, a literary critic and historian of the Italian Middle Ages, and Scipione
Maffei, a dramatist and classicist. In Naples, Montesquieu was led to converse with
Costantino Grimaldi, an aged jurist known for his defenses of Cartesian philosophy and his
advocacy of the priority of civil over ecclesiastical jurisdiction. Montesquieu’s interests in
Italy seem to have been in modern thought rather than ancient history.
Montesquieu spent two years in England. This was the England of George II, whom
Montesquieu first met in Hanover; of Swift, Defoe, Pope, and of bitter, violent public
discussion and satire; were the Whig, Walpole, was the king’s minister and the Tory,
Bolingbroke, defended Parliament against what was called corruption, that is the influence of
the king and his minister. British political freedom attracted visiting Frenchmen, whereas the
disorder of its public debate was upsetting to them. Montesquieu’s interests in England seem
to have been primarily political. He was acquainted with figures on all sides of the issues and
with the court, and he observed Parliament in action. In England, he found what was scarcely
imaginable in France a politics where the question was the proper understanding of the
relation, or balance, between the representative Parliament and the king, or the king’s
minister, and the reigning issue was the constitutional propriety of the actions of the king and
Parliament.
Montesquieu’s famous description of English politics and the possibility of a government
based on separated and balanced powers has its source in his observation of this government.
His assessment in The Spirit of the Laws of the way the balance operated is carefully neutral
between Walpole, who controlled Parliament through his patronage, and Bolingbroke, who
disapproved of the minister’s invasion of the independence of Parliament: “And, as the
executive power, which has all the posts at its disposal, could furnish great expectations but
not fears, all those who would obtain something from it would be inclined to move to that
side, and it could be attacked by all those who could expect nothing from it” (Spirit of the
Laws, 19.27). For the English balance of power to work, people must move between
allegiance to the executive and the legislature. The posts available to the executive make that
possible.
The years between 1731, when he returned to France, and 1748, when The Spirit of the Laws
was finished, were occupied with the serious and extensive reading and writing required to
produce first his Considerations on the Causes of the Greatness of the Romans and their
Decline and then The Spirit of the Laws. The quality of Montesquieu’s scholarship has been a
perennial question. Shackleton has traced evidence of Montesquieu’s extensive reading in his
Penises, notebooks, and journals. The search for sources of his thought is handicapped,
however, by an excess of evidence. He seems to have read everything. In The Spirit of the
Laws, Montesquieu cites some 300 works in over 3,000 references. Muriel Dodds had located
many of Montesquieu’s references to the travel literature. Iris Cox has investigated the works
cited in his French law analysis, concluding that Montesquieu used the best sources available
to him, critically and with judgment. In our experience, if one is attentive to the point,
Montesquieu is trying to make, and to the possibility of irony, his use of his sources is
plausible and responsible.
Montesquieu’s life showed little external change during the seven years he lived after his
great work was completed; he continued to travel between La Brede and Paris, care for his
family and estates, and visit with his friends in the “republic of letters. He wrote the Defense
de I’esprit des, Lois, tried to keep his work from being censored by the Sorbonne and put on
the Index, and wrote an article, “Du goüt,” for the Encyclopedia. In 1755, he died of a fever
in Paris, confessing and taking communion, but without surrendering his papers to the priest.
The Spirit of the Laws and its reception
The Spirit of the Laws, despite Montesquieu’s request to the contrary, has been read
piecemeal. As in his life, Montesquieu did not seem to require any clear, overt, organizing
device. The best analogy for the book is the complex mosaic and embroidery of the
eighteenth century or even rococo painting. Although there is no over-arching, organizing
image, there are similarities and contrasts that send the viewer, or reader, across the painting
or through the book.
The elements that have attracted the attention of those who have read and thought about
Montesquieu are the law and the spirit of the law, the division of governments into republics,
monarchies, and despotism, the notion of a free government of divided and balanced powers,
and the examination of the conditions of the existence of such a government; and the
distinction between moderate and despotic government. Here, I can give only a brief notion
of each notion’s standing and ramifications and point out the thinkers who have responded to
each.
Montesquieu begins the book with the distinction between the law and the spirit of the law.
He refuses to use the great organizing principle of his predecessors, the natural law; however,
it was understood. As a legal principle, the spirit points away from assessing individual laws
in terms of some universal principle and toward some particular, unifying principle. In Book
28, Montesquieu considers the development of civil law in France from the time of the
conquest by the Germanic tribes through the reign of Saint Louis and then forward to Charles
VII. This is the kind of material that seems to validate the claim of the Enlightenment that the
“Middle Ages” were a period of senseless barbarism. But Montesquieu finds a kind of order
in them. One will perhaps be curious to see the monstrous judicial combat usage reduced to
principles and to find the body of so singular a jurisprudence.
Men who are fundamentally reasonable place even their prejudices under rules. Nothing was
more contrary to common sense than judicial combat, but once this point was granted, it was
executed with a certain prudence” (28.23). Later, he speaks of a warrior nation’s spirit
governed solely by the point of honor (28.27). The problem in approaching Montesquieu
from this point of view has always been in ascertaining the kind of thing the spirit of a
government, or country, is natural, political, or even divine?
Montesquieu does offer a typology of government, presenting the reader with the distinction
between monarchies, despotism, and republics. He distinguishes between the nature of a
government, its source of rule, and its principle, the passions that keep it going. This permits
him to distinguish between monarchy and despotism; one person rules both, but in the first,
political men’s honor ensures the rule of law. In the second, the fear of the prince is virtually
the only passion. There is a complicated, even confusing, the hierarchy of institutions; in
despotism, there is only the prince, agent, and everyone else.
Everyone is a slave and, in effect, the slave Of the prince, who is the slave Of his passions.
Thus, Montesquieu claims that, because of the complex of institutions that do or do not
support it, the same source of the rule can be exercised in such different ways that the
governments must be said to be different. This notion that the kinds of governments are a
consequence of the way rule is exercised, which in turn is due to the entire complex of
political and social groupings and institutions, marks a new way of viewing government,
which is identified by Durkheim and Raymond Aron as the beginning of sociology. However,
they express their distress at Montesquieu’s continued use of political categories.
However, his first readers in France did not follow him. Dupin explicitly objected to this
distinction between despotism and monarchy, claiming, as is traditional, that the form of a
government determines its end and the way its people act. He was further horrified that it was
not the spirit of submission but a monstrous, odious, and false notion of a monarchy based on
the honor put forward. Voltaire objected that Montesquieu’s distinctions among governments,
particularly the one between monarchy and despotism, were not accurately drawn. They
were, he claimed, based on inaccurate information, on mere stories. His that Montesquieu
used his sources uncritically became a commonplace.
In the first eight books, Montesquieu presents a moderate, or regular and law-abiding,
monarchy. However, the intermediate powers that make it a monarchy resemble those of the
French, a military nobility of the sword, a parliamentary nobility of the robe, and a clergy.
The suggestion, then, is that the French monarchy’s moderation was a consequence of its
intermediate powers. During both the religious wars of the sixteenth century and the wars of
the Fronde of the seventeenth, the institutions independent of the king defended their place in
the monarchy. The parliaments pushed their claim to assess been no constitution for the
monarchy. He makes both the king and the nobility usurpers at different times, and in so
doing, he takes Montesquieu’s intermediate position one step further. He makes an altogether
new start more plausible.
Marat, in 1785, offered a formal loge of Montesquieu, which praises his “delicate satire”
while attributing to him the outrage that was to fuel the revolution. He wrote, ‘ ‘he was the
first among us to carry the torch of philosophy into legislation, to avenge outraged humanity,
to defend its rights, and in a way, to become the legislator for the whole world.”
Montesquieu’s own willingness to offer thoughts about legislation to the public, rather than to
the king, as was proper in the absolute monarchy, is taken by Marat as a model not only for
politicians but for everyone.
Republics, in addition to monarchies and despotism, are the topic for the first eight books.
These governments, small, pagan, and based on slavery, seemed to offer little to eighteenth-
century France. Still, the image of political virtue had great charm despite Montesquieu’s
characterization of the environment that a republic required. He claimed that republics were
based on virtue as a principle, understood as love of country. They were maintained by a
whole way of life that established equality among the citizens and left them little or nothing
other than that country to love or identify with. Put this way, Montesquieu’s republican
government’s virtue and the virtue celebrated by Rousseau bear a remarkable resemblance.
(Rousseau was the secretary to Mme. Dupin when she and her husband, the Fermi er General,
wrote, published, and withdrew from publication the first critical assessment of The Spirit of
the Laws.) In each case, the passions that could be invested in an individual’s well-being are
directed toward society as a whole: virtue is that simple-minded devotion to country.
In the United States, Jefferson and the Anti Federalists took seriously Montesquieu’s account
of the social conditions that make republican government possible. In arguing that Americans
ought not to take up manufacturing, Jefferson wrote, “If corruption is the mark set on those,
who, not looking up to heaven, to their own soil and industry, as does the husbandman, for
their subsistence, depend for it on casualties and caprice of customers. Dependence begets
subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs
of ambition” (Jefferson, Notes on Virginia (New York, 1964), p. 157). The Anti-Federalists
constantly worried that the proposed new U.S. Constitution did not encourage civic virtue. It
both ignored the question of virtue and set up conditions, such as large size, complex
representation, and encouragement of commerce positively discouraged the development of
such virtue.
In addition to the paradigms of republics, monarchies, and despotisms, Montesquieu offered
the model of a government whose end was political liberty, the English government of his
time (11.6; 19.27). His analysis of that liberty and that government affected the way both
Englishmen and Americans came to think of their political institutions and the social and
economic underpinnings of those institutions. According to Montesquieu, political liberty is
the result of the separation of powers. In England, the old regime, commons, lords, and king
orders each take up a function in the new division of rule into legislative and executive
functions, with the judicial function set aside injuries. The functions Of government are not
entirely separated, as each branch participates to some extent in the others’ task, making the
balance a result of an interaction between the branches. However, the question remains of the
separation of the three orders. That is, does the king properly have some part in the choice of
members of Parliament? Is the king, or his minister in Parliament, the executive, and what is
that term’s meaning? Is it proper to dilute the old nobility by creating new nobles?
Montesquieu is quoted approvingly by both Blackstone and Burke. Blackstone defends the
separation of powers in their sources. At the same time, Burke is quite willing to find reasons
for all the ways of electing members of Parliament that made it possible for the executive to
have some control over them. Still, for Blackstone and Burke, as for Montesquieu, the
government’s structure itself, not some appeal to first principles, is the defense of liberty.
In France, during and after the French Revolution, Montesquieu’s concern to balance power
led to whether there remained any independent political body, king or noble, that could be
used to moderate the sovereignty of the people. Burke, a careful student of Montesquieu,
berated the French in his Reflections on the Revolution in France for not attaching
themselves to their old regime’s institutions, as the English had. Tocqueville replied that
those institutions were no longer viable in France. Using Montesquieu’s analysis of
monarchy, he argues that the loss of intermediate powers made possible the revolutionary
move from royal to popular tyranny. England did not offer a plausible model: “The European
revolution continues among the English, but it continues thereby assuming forms that are
entirely English” (Tocqueville, Oeuvres completes (Paris, 1967), 8.1, p. 157). Only in
America could one see that there were democratic intermediate institutions that could
moderate democratic sovereignty.
The second half Of The Spirit of the Laws is a consideration of the government’s conditions
of climate, temperament, family structure, commerce, religion, and history. Here we come
upon the conditions that could support a modern free government, like that of England. It is
hard to see how these conditions can be managed to the governments’ benefit, as direct
governmental control seems to be precluded by the principle of freedom. In Book 12 on
freedom as personal security Montesquieu takes up treason, sexual crimes, and heresy. In
each case, he moves the government toward punishment only for the most overt, visible acts.
His suggestions for the reform of criminal law appealed to the Milanese intellectual Cesare
Beccaria, the author Of the most famous book of the Italian Enlightenment, Of Crimes and
Punishments (1764), and came to circulate widely.
The Spirit of the Laws was received with praise by much of the Scottish Enlightenment,
including David Hume, Adam Ferguson, and Adam Smith, and was incorporated into their
thought and work. Hume wrote Montesquieu a letter upon reading the book that praises by
commenting carefully on some English republicanism and commercial policy (Oeuvres, vol.
3, pp. 1217—1222). Ferguson wrote in An Essay on Civil Society (Philadelphia, A. Finley,
1819), pp. 119—120, “When I recollect what President Montesquieu has written I am at a
loss to tell, why I should treat of human affairs;  In his writings will be found, not only the
original of what I am now, for the sake of order, to copy from him but likewise probably the
source of many observations, which, in different places, I may, under the belief of invention,
have repeated, without quoting their author.” Montesquieu’s parts of most interests to these
writers were those rectifying on such conditions as temperament, family structure, commerce,
religion, and legal history, which made possible free governments such as England’s. These
writers amplified and restructured the second half of The Spirit of the Laws to illustrate the
development of the Conditions of a modern free government.
Unlike Montesquieu, they were not interested in the complex of passions, beliefs, and
practices that supported other kinds of governments or in a comparative politics based on the
possibility of fundamentally different governments.
James Madison, one of the U.S. Constitution architects at the Convention where it was
written, and one of its great defenders in The Federalist, was an inheritor of this intellectual
tradition. Madison attended Princeton, where John Wither spoon, a Scotsman who followed
the tradition of thought exemplified by Ferguson and Smith’s Lectures on Jurisprudence, was
president and gave the lectures on moral philosophy. Wither spoon, however, added the
quality of moral earnestness and anti-aristocratic self-reliance that can lead to political action
as well as to the ministry. In Federalist, Madison argues that a large republic could halt the
republican tendency to develop majority and minority factions that dominate political life.
The effort to disperse large divisions and the confidence in large, modern governments
follows in the Scottish tradition.
But Madison’s analysis of how a government of balanced powers could be expected to work
reflects a contemplation of Montesquieu’s book itself. In Montesquieu’s England and the
U.S. Constitution, as Madison defended it in The Federalist, the balance of power resulted
from both the division of power and its sharing. The positions within the government are
shaped by a notion of the character of good government. As in Montesquieu’s monarchy,
those who hold the positions are shaped by them. They identify themselves with the
importance of the place they hold and the task it gives them. These habits of mind defend the
division of powers and form the character of the rule.
The distinction between moderate and despotic governments permeates Montesquieu’s book.
In despotic governments, people are isolated from each other; their only rule is the will or
whim of the ruler; they relate to each other only through fear. In moderate governments,
people can count on regularity in the rule; they can relate to each other without fear insofar as
they rely on the things they hold in common; they share something other than just fear of the
ruler. Moderation and despotism are characteristics that can be found in virtually any
government in differing proportions. From this perspective, the egalitarian, bureaucratizing
impulse of the absolute king was despotic, however well-intentioned. Tocqueville made this
notion the cornerstone of his analysis of the Old Regime and the French Revolution, and the
severity.
Principal events in Montesquieu’s life
1685. Revocation of the Edict of Nantes, the end of French toleration for Protestantism.
1688. The glorious revolution in England.
1689. Montesquieu was born, January 18, at the Chateau of La Brede.
1700. Montesquieu went to College de Juilly.
1708. Montesquieu studied law in Bordeaux and Paris.
1713. The Papal Bull Unigenitus was promulgated condemning some propositions from P.
Quesnel’s Reflexions morales, and thus supporting the Jesuits at the expense of the
Jansenists.
1714. Montesquieu became a Counselor in the Parliament of Bordeaux.
1715. Montesquieu married Jeanne Lartigue, a Protestant; they had three children. Louis XIV
died.
1716. Montesquieu became a member of the Academy of Bordeaux and, when his uncle died,
inherited the barony of Montesquieu and became President a Mortier in the Parliament of
Bordeaux.
1721. The Persian Letters was published anonymously.
1725. Montesquieu published Le Temple de Guide, anonymously, and sold a life interest in
his president.
1728. Montesquieu was elected to the French Academy and set out on a trip to Germany,
Italy, and England.
1729. Montesquieu traveled to England.
1731. Montesquieu returned to France.
BOOK 1
On laws in general
CHAPTER 1
On laws in their relation with the various beings
Laws, taken in the broadest meaning, are the necessary relations deriving from the nature of
things; and in this sense, all beings have their laws: the divinity) has its laws, the material
world has its laws, the intelligence superior to man have their laws, the beasts have their
laws, man has his laws.
Those who have said that a blind fate has produced all the effects that we see in the world
have said a great absurdity; for what greater absurdity is there than a blind fate that could
have produced intelligent beings? There is, then, a primitive reason, and laws are both the
relations that exist between it and the different beings and the relations of these various
beings to each other.
God is related to the universe, as creator and preserver; the laws according to which he
created are those according to which he 41 preserves; he acts according to these rules because
he knows them; he knows them because he made them; he made them because they are
related to his wisdom and his power.
As we see that the world, formed by the motion of matter and devoid of intelligence,
continues to exist, its motions must have invariable laws. If one could imagine another world
than this, it would have consistent’ rules or destroyed.
Thus, the creation, which appears to be an arbitrary act, presupposes rules as invariable as
atheists’ fate. It would be absurd to say that the creator, without these rules, could govern the
world since the world would not continue to exist without them.
These rules are a consistently established relation. Between one moving body and another
moving body, it is in accord with relations of mass and velocity that all motions are received,
increased, diminished, or lost; every diversity is uniformity. Every change is consistent.
Particular intelligent beings can have laws that they have made, but they also have some that
they have not made. Before there were intelligent beings, they were possible; therefore, they
had possible relations and consequently possible laws. Before laws were made, there were
possible relations of justice! There is nothing just or unjust but what positive laws ordain or
prohibit is to say that before a circle was drawn, all its radii were not equal.
Therefore, one must admit that there are relations of the fairness of before the positive law
that establishes them, so that, for example, assuming that there were societies of men, it
would be just to conform to their laws; so that, if there were intelligent beings that had
received some kindness from another being, they ought to be grateful for it;g so that, if one
intelligent being had created another intelligent being, the created one ought to remain in its
original dependency; so that one intelligent being who has harmed another intelligent being
deserves the I same harm in return, and so forth.
But the intelligent world is far from being as well governed as the physical world. For,
though the intelligent world also has laws that are invariable by their nature, unlike the
physical world, it does not follow its laws consistently. This is because particular intelligent
beings are limited by their nature and are consequently subject to error; furthermore, it is in
their nature to act by themselves.
Therefore, they do not consistently follow their primitive laws or even always follow the laws
they give themselves. It is unknown whether beasts are governed by the general laws of
motion or by a movement particular to themselves. Be that as it may, they do not have a more
intimate relation with good than the rest of the material world has. The feeling is useful to
them only about one another, either with other particular beings or themselves. By the
attraction of pleasure, they preserve their particular being by the same attraction they preserve
their species. They have natural laws. They are united by feeling they have no positive laws
because they are not united by knowledge. Still, they do not invariably follow their natural
laws; plants, in which we observe neither knowledge nor feeling, better follow their natural
laws. Beasts do not have the supreme advantages that we have; they have some that we do
not have. They do not have our expectations but they Part.
CHAPTER 2
On the laws of nature
Before all these laws are the laws of nature, so named because they derive uniquely from our
being’s constitution. To know them well, one must consider a man before the establishment
of societies. The laws he would receive in such a state will be the laws of nature.
The law that impresses on us the idea of a creator and thereby leads us toward him is the first
of the natural laws in importance, though not first in these laws’ order. A man in the state of
nature would have the faculty of knowing rather than knowledge. His first ideas would not be
speculative ones. He would think of the preservation of his being before seeking the origin of
his being. Such a man would first feel only his weakness; his timidity would be extreme, and
as for evidence, if it is needed on this point, savages have been found in forests everything
makes them tremble, everything makes them flee.
In this state, each feels inferior; he scarcely feels himself an equal. Such men would not seek
to attack one another, and peace would be the first natural law.
Hobbes gives men first the desire to subjugate one another, but this is not reasonable. The
idea of empire and domination is so complex and depends on so many other ideas that it
would not be the one they would first have.
Hobbes asks, If men are not naturally in a state of war, why do they always carry arms, and
why do they have keys to lock their doors? But one feels that what can happen to men only
after establishing societies, which induced them to find motives for attacking others and
defending themselves, is attributed to them before that establishment.
Man would add the feeling of his needs to the feeling of his weakness. Thus another natural
law would be the one inspiring him to seek nourishment.
I have said that fear would lead men to flee one another, but the marks of mutual fear would
soon persuade them to approach one.