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CHAPTER I
law," Plutarch says in [Moralia] Ad principem ineruditum [78oc], "is the queen of all, mortal and immortal." [Plutarch is quoting Pindar, fragment 169 (151).] 'We have rendered Montesquieu's primitive as "primitive," thus retaining the distinction between that term and premier, "first," which is used repeatedly in 1.2. bWe have translated sage and its various forms with "wise" and its various forms. The meaning is generally prudence, calm, sobriety. 'Montesquieu uses constant, constamment, and constance to refer both to a fixed rule and
Part I
Thus creation, which appears to be an arbitrary act, presupposes rules as invariable as the fate claimed by atheists. 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 unifimnity, every change is consistency.d 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.' To say that 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 fairness! prior to 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;K 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 done harm to another intelligent being deserves the 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. The reason for this is that 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
to multiple actions that conform to the rule. We have chosen to translate them by "consistent" and "consistency," which have both of these implications. dHere translating constance as "consistency" conveys the meaning ofchanging according to a rule, as "constancy" with its static implication would not. See note b, above. 'Here Montesquieu takes advantage ofthe range ofmeaning ofthe French}uste, which includes both the notion of"correct" and that of"just." It leads him to the arithmetic notion of justice in the next paragraph. f Equiti is translated throughout as "fairness," because it implies a much wider sphere than the English term "equity" with its almost exclusively legal implications. Here Montesquieu's equite reminds the reader of the egal, "equal," at the end of the preceding sentence and of the arithmetic relation. gavoir de la reconnais,ance, See 31.33 (note', bk. 3 I).
On laws in general
do not consistently follow their primitive laws or even always follow the laws they give themselves. It is not known 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 god h than the rest of the material world has, and feeling is useful to them only in their relation to one another, either with other particular beings, or with themselves/ By the attraction of pleasure they preserve their particular being; by the same attraction they preserve their species. They have natural laws because they are united by feeling; they have no positive laws because they are not united by knowledge. Still, they do not invariably follow their naturallawsj 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 do not have our fears; they suffer death as we do, but without recognizing it; most even preserve themselves better than we do and do not make such bad use of their passions. Man, as a physical being, is governed by invariable laws like other bodies. As an intelligent being, he constantly violates the laws god has established and changes those he himself establishes; he must guide himself, and yet he is a limited being; he is subject to ignorance and error, as are all finite intelligences; he loses even the imperfect knowledge he has. As a feeling creature, he falls subject to a thousand passions. Such a being could at any moment forget his creator; god has called him back to him by the laws ofreligion. Such a being could at any moment forget himself; philosophers have reminded him of himselfby the laws of morality. Made for living in society, he could forget his fellows; legislators have returned him to his duties by political and civil laws.
hMontesquieu never capitalizes dieu, "god." i dans [erapport qu 'elles ont entreelles, ou avecd'autres itres particuliers, ou avec elles-memes. The middle term was added after 1748. This addition suggests that the meaning is that relations among animals may be either with members of other species or with other members of their own species. iWhether men's having purposes beyond those of the animals leads to hopes or expectations is, of course, not clear from the French. (See note a in Preface.)
Part I
CHAPTER 2
the savage who was found in the forests of Hanover and who lived in England in the reign of George I.
kS ee Thomas Hobbes, Leviathan, bk.
I,
chap. 13.
On laws in general
another. They would also be so inclined by the pleasure one animal feels at the approach of an animal of its own kind. In addition, the charm that the two sexes inspire in each other by their difference would increase this pleasure, and the natural entreaty' they always make to one another would be a third law. Besides feelings, which belong to men from the outset, they also succeed in gaining knowledge; thus they have a second bond, which other animals do not have. Therefore, they have another motive for uniting, and the desire to live in society is a fourth natural law.
/priere.
CHAPTER
On positive laws
As soon as men are in society, they lose their feeling of weakness; the equality that was among them ceases, and the state of war begins. Each particular society comes to feel its strength, producing a state ofwar among nations. The individuals within each society begin to feel their strength; they seek to tum their favor the principal advantages of this society, which brings about a state of war among them. These two sorts ofstates ofwar bring about the establishment oflaws among men. Considered as inhabitants of a planet so large that different peoples are necessary, they have laws bearing on the relation that these peoples have with one another, and this is the RIG H T 0 F NAT ION S.'" Considered as living in a society that must be maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the POLl TI CAL RIG H To" Further, they have laws concerning the relation that alI citizens have with one another, and this is the CIVIL RIGHT. The right of nations is by nature founded on the principle that the various nations should do to one another in times of peace the most good possible, and in times ofwar the least ill possible, without harming their true interests.
mIe droi/ des gens is translated "right of nations" throughout. "We have translated droit as "right" and loi as "law." Although the French droit is usually closer to the meaning of "law" in English, we have kept Montesquieu's usage so that his distinction and his version of the changes in meaning would nOl be obscured.
Part
The object of war is victory; of victory, conquest; of conquest, preservation. All the laws that form the right of nations should derive from this principle and the preceding one. All nations have a right of nations; and even the Iroquois, who eat their prisoners, have one. They send and receive embassies; they know rights ofwar and peace: the trouble is that their right of nations is not founded on true principles. In addition to the right of nations, which concerns all societies, there is a political right for each one. A society could not continue to exist without a government. "The union ofall individual strengths," as Gravina aptly says, "forms what is called the POL I TIC A L S TAT E. "0 The strength ofthe whole society may be put in the hands of one alone or in the hands of many.P Since nature has established paternal power, some have thought that government by one alone is most in conformity with nature. But the example ofpaternal power proves nothing. For, if the power ofthe father is related to government by one alone, then after the death of the father, the power of the brothers, or after the death of the brothers, the power of the first cousins, is related to government by many. Political power necessarily includes the union of many families. It is better to say that the government most in conformity with nature is the one whose particular arrangement best relates to the disposition of the people for whom it is established. q Individual strengths cannot be united unless all wills are united. The union of these wills, as Gravina again aptly says, is what is called the
CIVIL STA TE:
Law in general is human reason insofar as it governs aU the peoples of the earth; and the political and civil laws of each nation should be only the particular cases to which human reason is applied. Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another. Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws.
Giovanni Vincenzo Gravina, Origine RomtJni juris (1739), bk. z, chap. 18, p. 160. PThe eighteenth-century meaning ofplusieurs was "many." The opposition is between "one" and "many," as between monarchies or despotisms and republics in Book z. q II vaut mieux dire que Ie gouvemement Ie plus conforme a/a nature est eelui dont /a disposition particulitre se rapporte mieux a /a disposition du peuple pour lequel il est ctab/i. No English word covers all the disparate topics Montesquieu joins with the word disposition. 'Giovanni Vincenzo Gravina, Origine RomtJnijuris (1739), bk. 3, chap. 7, foomote, p.
3".
On laws in general
They should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way oflife of the peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners; finally, the laws are related to one another, to their origin, to the purpose of the legislator, and to the order ofthings on which they are established. They must be considered from all these points of view. This is what I undertake to do in this work. I shall examine all these relations; together they form what is called THE SPIRIT OF THE
LAWS.'
I have made no attempt to separate political from civi/laws, for, as I do not treat laws but the spirit of the laws, and as this spirit consists in the various relations that laws may have with various things, I have had to follow the natural order of laws less than that of these relations and of these things. I shall first examine the relations that laws have with the nature and the principle of each government, and, as this principle has a supreme influence on the laws, I shall apply myselfto understanding it well; and if I can once establish it, the laws will be seen to flow from it as from their source. I shall then proceed to other relations that seem to be more particular.
SL 'ESP RIT DES LOIX.