The Spirit of the Laws by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu

First published:De l’ésprit des loix: Ou, Du rapport que les loix doivent avoir avec La Constitution de chaque gouvernement les mouers, le climat, la religion, le comerce . . . , 1748 (English translation, 1750)

Type of work: Politics

The Work:

In terms of its practical effect, The Spirit of the Laws is one of the most important political science books. It was one of the primary sources of the United States Constitution and, through that document, one of the major influences on the development of democratic institutions in Europe during and after the French Revolution. All this is out of proportion to Montesquieu’s objectives in writing the book, which were to analyze the various types of political institutions known throughout the world throughout history. Montesquieu also aims, in his book, to denounce the abuses of the French monarchical system and to encourage a liberal and more equitable monarchical government for France.

In setting out to write his book, Montesquieu’s major inspirations were the works of René Descartes, Nicholas de Malebranche, and Niccolò Machiavelli, all of which he viewed with the kind of healthy skepticism typical of Michel Eyquem de Montaigne. This inspiration did not give him his conclusions, but it gave him his method: a rational, descriptive, and analytic approach to the problem of the nature of the good constitution of society. Montesquieu, like most early political thinkers after Machiavelli, was essentially concerned with the problem of the relationship of right and might, of law and power. Many of these thinkers, however, especially those opposed to what they considered the evil in Machiavelli’s realistic approach to politics, tried to theorize on a moral base. They sought to find the basis for the right constitution of society in a consideration of right and wrong and in a natural law of right and wrong. Such an approach was alien to Montesquieu. Political society, for him, had to be based on civil law. Law should reflect what individuals consider right or wrong, but subjective morals and objective law are two different things. Morals, like law, are relative; what one society might consider both right and legal, another might well consider both wrong and illegal.

In considering the problem of adjusting right and might, law and power, Montesquieu did not attempt to solve the problem. He was convinced the problem could not be solved but only understood and dealt with in more rational and equitable ways than societies had used in the past. Thus, he was no more a political moralist than he was a political utopian. Montesquieu’s political theory rested on the following assumptions: First, there is no universal solution to the problems of politically structuring a society, because there are only kinds of solutions; second, different cultures require different solutions; third, whatever the solution in a given society, it cannot be arbitrary and will not be accidental—it will depend on the cultural tradition and factors of history and geography; fourth, there is no ideal solution for any culture, only better and worse solutions; fifth, no solution is permanent but is subject to change by conscious or unconscious action and corruption; and, sixth, any workable solution must be the result of rational analysis of objective factors.

The book itself is vast in terms of both the ground it covers and the ideas it generates. Nevertheless, it does not, and could not, achieve the objectives set for it. The scope is too large for the author’s abilities and resources. The evidence is often incorrect because techniques for gathering information were still undeveloped. Often Montesquieu’s interpretation of valid evidence is not logical or warranted by the facts. The excellence of the book, however, far outweighs its relatively minor defects, and it will continue to be read if only for the sake of its most important contribution to political thought: Montesquieu’s discovery of the principle of the separation of powers as a method of securing justice and continuing political liberty.

As a result of the great amount of information incorporated into the book, the great number of subjects considered, and the great number of ideas presented in the course of Montesquieu’s analysis, The Spirit of the Laws has a structure that is random and difficult to perceive. It is not a formless book by any means, but it does not lend itself to a precise analytic outline. The only principle of organization that seems to hold up under examination is one based on the path of the meandering but directed argument. One widely accepted idea of the arrangement is as follows: Books 1 to 13 are concerned with the concept of government as such, and its specific and general functions. Within this larger division are subdivisions. Books 1 through 8 outline the various types of governments, their essential natures, their structures, and the ways their structures are maintained and corrupted. Books 9 through 13 discuss the functions and the purposes of governments; more specifically, books 9 and 10 discuss the army as the protective agency of the state and the problem of war; book 11 discusses ways to protect the citizen and the meaning of political liberty, and considers the accomplishments of Great Britain in this area; and book 12 is concerned with problems of individual security, the rights of property, the availability of justice, and the function of legal tribunals. Taxes and taxation are the subjects of book 13.

Books 14 through 19 make up the second large section of The Spirit of the Laws and, in general, are concerned with the effect of climate, which is seen as a function of geography on various political considerations: book 14, the relation of law and climate; book 15, civil servitude and climate; book 16, domestic servitude and climate; book 17, the relation of political servitude and despotism to climate. Book 18 is concerned with the effect of geographical situation and the nature of the soil on the development of law and of government, and book 19 discusses the morals and customs of a nation and the relation of law to the national spirit.

Books 20 through 25 are generally concerned with economics and religion. Book 20 presents a general theory of the organic interrelation of commerce, morals, poverty, and system of government. Book 21 examines the relation of law and commerce and historical change, and book 22 comments on law and its relation to the use of money. Book 23 examines the relation of population density and the development of law. Book 24 discusses the effect of religion qua faith, doctrine, and belief on law; and book 25 considers the effect of religion qua institution and establishment on law.

Books 26 through 31 are difficult to consider in numerical order. Books 26 and 29, although separated numerically, concern the theory of law and legislative practice; the former discusses kinds of law—positive, natural, canon, and civil; the latter considers the manner of composing laws. Books 27 and 28 are more or less fragmentary considerations of various matters: Book 27 discusses the effect of time on political institutions, and the Roman law of succession; book 28 discusses the origin and evolution of French civil law and the conflict between Germanic and Roman law. Books 30 and 31 examine the development of French feudal laws and institutions: Book 30 is particularly concerned with laws and institutions as they evolved during the period of the establishment of the French monarchy, and book 31 is concerned with feudal law and institutions in relation to the evolution of the monarchy.

One of the most interesting and important sections of The Spirit of the Laws is book 2. Here Montesquieu discusses his most famous idea, the separation of powers in the state. Basing his observations on an examination of the English constitution, which he and many other political scientists of the period considered the most advanced and just in history, Montesquieu points out that government has three general functions: the legislative, the judicial, and the executive. If political liberty is to be preserved for the individual, he says, no one man or body in the state should have control of more than one of these functions. Montesquieu’s definition of political liberty is as practical and objective as his method of analysis: It is not a moral or philosophical abstraction, but a simple, relativistic statement. Political liberty—which is not the same thing as independence—is simply the right to do what the law permits. This right, the author demonstrates by reference to history and the contemporary state of affairs in Europe, inevitably is abridged when any person or governmental body falls into control of more than one of the three basic functions of government. Thus, the good constitution should be constructed so as to prevent usurpation of power. The framers of the United States Constitution accepted this observation, as they did many of Montesquieu’s other positions, and the result has been manifest in history.

Bibliography

Carrithers, David W., Michael A. Mosher, and Paul A. Rahe, eds. Montesquieu’s Science of Politics: Essays on “The Spirit of the Laws.” Lanham, Md.: Rowman & Littlefield, 2001. Collection of essays providing various interpretations of the book’s philosophy and influence, including an introductory appreciation by Carrithers and discussions of Montesquieu and natural law, despotism in The Spirit of the Laws, and Montesquieu and English liberty.

Cohler, Anne M. Montesquieu’s Comparative Politics and the Spirit of American Constitutionalism. Lawrence: University Press of Kansas, 1988. Scholarly but accessible work for advanced students. Discusses the narrative content of The Spirit of the Laws and explores Montesquieu’s conceptualization of liberty, legislation, democracy, and other themes.

Dijn, Annelien de. French Political Thought from Montesquieu to Tocqueville: Liberty in a Levelled Society? New York: Cambridge University Press, 2008. Describes Montesquieu’s concept of “aristocratic liberalism,” which held that a corps of aristocrats was needed to preserve freedom in a monarchy. Demonstrates how this idea had a continued impact on France’s politics and society after the French Revolution.

Durkheim, Émile. Montesquieu and Rousseau: Forerunners of Sociology. Ann Arbor: University of Michigan Press, 1960. Durkheim, a major contributor to the theoretical foundations of sociology, argues that The Spirit of the Laws lays down the principles of the then-emerging science of sociology. Outlines and critiques Montesquieu’s methodological logic from a classic social scientific standpoint.

Kingston, Rebecca E., ed. Montesquieu and His Legacy. Albany: State University of New York Press, 2009. Collection of essays analyzing the significance of Montesquieu’s ideas in the development of Western political theory and institutions. Includes discussions of The Spirit of the Laws and the Chinese empire, free speech and The Spirit of the Laws in Canada and the United States, and a comparison of the political philosophies of Montesquieu and Alexis de Tocqueville.

Levin, Lawrence Meyer. The Political Doctrine of Montesquieu’s “Esprit des lois”: Its Classical Background. New York: Columbia University Press, 1936. A voluminous but straightforward examination of Montesquieu’s reliance on Greek, Roman, and other ancient texts as intellectual sources. Includes a large bibliography of studies, predominantly in French, on Montesquieu.

Shackleton, Robert. Montesquieu: A Critical Biography. New York: Oxford University Press, 1961. Devotes eight lucid chapters to the writing of and concepts in The Spirit of the Laws. A useful introductory survey of the work.