The Spirit of the Laws
Encyclopedia
The Spirit of the Laws is a treatise
on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu
in 1748 with the help of Claudine Guérin de Tencin
. Originally published anonymously partly because Montesquieu's works were subject to censorship, its influence outside of France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation. In 1751 the Catholic Church added L'esprit des lois to its Index Librorum Prohibitorum
("List of Prohibited Books"). Yet Montesquieu's political treatise had an enormous influence on the work of many others, most notably: Catherine the Great, who produced Nakaz
(Instruction); the Founding Fathers of the United States Constitution
; and Alexis de Tocqueville
, who applied Montesquieu's methods to a study of American
society, in Democracy in America
. Macaulay offers us a hint of Montesquieu's importance when he writes in his 1827 essay entitled "Machiavelli" that "Montesquieu enjoys, perhaps, a wider celebrity than any political writer of modern Europe."
Montesquieu spent nearly twenty years researching and writing L'esprit des lois (The Spirit of the Laws), covering a wide range of topics in politics, the law, sociology, and anthropology and providing more than 3,000 citations. In this political treatise Montesquieu advocates constitutionalism
and the separation of powers
, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.
an, monarchical, and despotic. As he defines them, Republican political systems vary depending on how broadly they extend citizenship rights -- those that extend citizenship relatively broadly are termed democratic
republics, while those that restrict citizenship more narrowly are termed aristocratic republics. The distinction between monarchy and despotism hinges on whether or not "intermediate powers" (such as the nobility, the clergy, etc.) exist that can restrain the authority of the ruler: if so, the regime counts as a monarchy; if not, it counts as despotism.
Driving each classification of political system, according to Montesquieu, must be what he calls a "principle". This principle acts as a spring or motor to motivate behavior on the part of the citizens in ways that will tend to support that regime and make it function smoothly. For democratic republics (and to a somewhat lesser extent for aristocratic republics), this spring is the love of virtue -- the willingness to put the interests of the community ahead of private interests. For monarchies, the spring is the love of honor -- the desire to attain greater rank and privilege. Finally, for despotisms, the spring is the fear of the ruler. A political system cannot last long if its appropriate principle is lacking. Montesquieu claims, for example, that the English failed to establish a republic after the Civil War (1642–1651) because the society lacked the requisite love of virtue.
Political liberty is not possible in a despotic political system, but it is possible, though not guaranteed, in republics and monarchies. Generally speaking, establishing political liberty on a sound footing requires two things:
While the analysis in De l'esprit des lois is much more subtle than these later writers perceive, many of his specific claims appear foolish to modern readers. Nevertheless, his approach to politics from a naturalistic or scientific point of view proved very influential, directly or indirectly inspiring modern fields of political science, sociology, and anthropology.
Treatise
A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject.-Noteworthy treatises:...
on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu
Charles de Secondat, baron de Montesquieu
Charles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...
in 1748 with the help of Claudine Guérin de Tencin
Claudine Guérin de Tencin
Claudine Alexandrine Guérin de Tencin was a French salonist and author. She was the mother of Jean le Rond d'Alembert, philosophe and contributor to the Encyclopédie.- Early life :...
. Originally published anonymously partly because Montesquieu's works were subject to censorship, its influence outside of France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation. In 1751 the Catholic Church added L'esprit des lois to its Index Librorum Prohibitorum
Index Librorum Prohibitorum
The Index Librorum Prohibitorum was a list of publications prohibited by the Catholic Church. A first version was promulgated by Pope Paul IV in 1559, and a revised and somewhat relaxed form was authorized at the Council of Trent...
("List of Prohibited Books"). Yet Montesquieu's political treatise had an enormous influence on the work of many others, most notably: Catherine the Great, who produced Nakaz
Nakaz
Nakaz, or Instruction, of Catherine the Great was a statement of legal principles authored by Catherine II of Russia, and permeated with the ideas of the French Enlightenment. It was compiled as a guide for the All-Russian Legislative Commission convened in 1767 for the purpose of replacing the...
(Instruction); the Founding Fathers of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
; and Alexis de Tocqueville
Alexis de Tocqueville
Alexis-Charles-Henri Clérel de Tocqueville was a French political thinker and historian best known for his Democracy in America and The Old Regime and the Revolution . In both of these works, he explored the effects of the rising equality of social conditions on the individual and the state in...
, who applied Montesquieu's methods to a study of American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
society, in Democracy in America
Democracy in America
De la démocratie en Amérique is a classic French text by Alexis de Tocqueville. A "literal" translation of its title is Of Democracy in America, but the usual translation of the title is simply Democracy in America...
. Macaulay offers us a hint of Montesquieu's importance when he writes in his 1827 essay entitled "Machiavelli" that "Montesquieu enjoys, perhaps, a wider celebrity than any political writer of modern Europe."
Montesquieu spent nearly twenty years researching and writing L'esprit des lois (The Spirit of the Laws), covering a wide range of topics in politics, the law, sociology, and anthropology and providing more than 3,000 citations. In this political treatise Montesquieu advocates constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
and the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.
Constitutional theory
In his classification of kinds of political systems, Montesquieu defines three main kinds: republicRepublic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
an, monarchical, and despotic. As he defines them, Republican political systems vary depending on how broadly they extend citizenship rights -- those that extend citizenship relatively broadly are termed democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
republics, while those that restrict citizenship more narrowly are termed aristocratic republics. The distinction between monarchy and despotism hinges on whether or not "intermediate powers" (such as the nobility, the clergy, etc.) exist that can restrain the authority of the ruler: if so, the regime counts as a monarchy; if not, it counts as despotism.
Driving each classification of political system, according to Montesquieu, must be what he calls a "principle". This principle acts as a spring or motor to motivate behavior on the part of the citizens in ways that will tend to support that regime and make it function smoothly. For democratic republics (and to a somewhat lesser extent for aristocratic republics), this spring is the love of virtue -- the willingness to put the interests of the community ahead of private interests. For monarchies, the spring is the love of honor -- the desire to attain greater rank and privilege. Finally, for despotisms, the spring is the fear of the ruler. A political system cannot last long if its appropriate principle is lacking. Montesquieu claims, for example, that the English failed to establish a republic after the Civil War (1642–1651) because the society lacked the requisite love of virtue.
Liberty and the separation of powers
A second major theme in De l'esprit des lois concerns political liberty and the best means of preserving it. "Political liberty" is Montesequieu's concept of what we might call today personal security, especially insofar as this is provided for through a system of dependable and moderate laws. He distinguishes this view of liberty from two other, misleading views of political liberty. The first is the view that liberty consists in collective self-government -- i.e. that liberty and democracy are the same. The second is the view that liberty consists in being able to do whatever one wants without constraint. Not only are these latter two not genuine political liberty, he thinks, they can both be hostile to it.Political liberty is not possible in a despotic political system, but it is possible, though not guaranteed, in republics and monarchies. Generally speaking, establishing political liberty on a sound footing requires two things:
- The separation of the powers of governmentSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
.
- Building on and revising a discussion in John LockeJohn LockeJohn Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
's Second Treatise of Government, Montesquieu argues that the executive, legislative, and judicial functions of government should be assigned to different bodies, so that attempts by one branch of government to infringe on political liberty might be restrained by the other branches. (Habeas CorpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
is an example of a check that the Judiciary branch has on the Executive branch of government.) In a lengthy discussion of the English political system, he tries to show how this might be achieved and liberty secured, even in a monarchy. He also notes that liberty cannot be secure where there is no separation of powers, even in a republic.- The appropriate framing of civil and criminal laws so as to ensure personal security.
- Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including: the right to a fair trial; the right to be considered innocent until proven guilty; and proportionality in the severity of punishment. Pursuant to this requirement to frame civil and criminal laws appropriately to ensure political liberty (i.e., personal security), Montesquieu also argues against slaverySlaverySlavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
and for the freedom of opinion and association.
Climate, culture, and society
The third major contribution of De l'esprit des lois was to the field of political sociology, which Montesquieu is often credited with more or less inventing. The bulk of the treatise, in fact, concerns how geography and climate interact with particular cultures to produce the "spirit" of a people. This spirit, in turn, inclines that people toward certain sorts of political and social institutions, and away from others. Later writers often caricatured Montesquieu's theory by suggesting that he claimed to explain legal variation simply by the distance of a community from the equator.While the analysis in De l'esprit des lois is much more subtle than these later writers perceive, many of his specific claims appear foolish to modern readers. Nevertheless, his approach to politics from a naturalistic or scientific point of view proved very influential, directly or indirectly inspiring modern fields of political science, sociology, and anthropology.
See also
- Comparative lawComparative lawComparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
- DemocracyDemocracyDemocracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
- Letter and spirit of the lawLetter and spirit of the lawThe letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words of the law, but not the intent of those who wrote the law...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Mutual LibertyMutual libertyMutual liberty is an idea first coined by Alexis de Tocqueville in his 1835 work Democracy in America. In effect, Tocqueville was referring to the general nature of American society during the 19th century. It appeared to him, at least on the surface, that every citizen in the United States had the...