The Spirit of Laws

The Spirit of Laws

Montesquieu by Clodion, 1783 – marble, height 164 cm – Musée du Louvre, Paris.

Introduction

If, amidst the infinite number of subjects contained in this book, there is anything which, contrary to my expectation, may possibly offend, I can at least assure the public that it was not inserted with an ill intention, for I am not naturally of a captious temper.

Shortly kept in anonymity, The Spirit of Laws, originally published in French as De l’Esprit des Loix, in 1748, rapidly achieved recognition as an outstanding work in political theory and comparative law, not only in France, England, but also in the thirteen American colonies, few years apart from their Declaration of Independence in 1776.

Original French edition ‘De l’Esprit des Loix’, 1748.

Charles Louis de Secondat was a French noble, born to a wealthy family, who received a classical education in Paris and graduated in law at the University of Bordeaux, his homeland. After the death of his father, he became councillor to the Bordeaux parliament, having his life directly connected to politics. From his uncle he inherited lands and the title of Baron de la Brède et de Montesquieu.

Château de La Brède, Bordeaux.

No doubts that privilege and fortune made of Montesquieu not a waged worker, not even a regular lawyer, but gave him the possibility and resources to become a philosopher, a politician and a researcher of political systems from the ancient and the post-classical world. Nevertheless, his aristocratic roots did not make him less solidary to the cause of a more just and fair society and, extraordinarily, his creative idleness produced one of the most beautiful and civically enlightening political treatises of his time, of our time.

If this work meets with success, I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men both in France and Germany have written before me, I have been lost in admiration, but I have not lost my courage; I have said, with Correggio, And I also am a painter.

The Assumption of the Virgin – Antonio da Correggio decorating the dome of the Cathedral of Parma, Italy – 1530.

I wonder how many contemporary legislators, politicians and citizens have drunk from this calyx. I was introduced to it twenty years ago, when I had no time, serenity and maturity to apprehend more than a scope. That scope built a significant part of my ideas about republics, democracy and equality.

I feel in debt for two decades, then.

The point, however, remains the same: democracy does not bloom from inequality and corruption.

Calyx-krater by Nazzano – 4th century BC. Here, Athena and Poseidon struggle for the possession of Athens, amongst the company of gods, heroes, maenads and satyrs.

The three kinds of government and their principles

The backbone of Montesquieu’s work is the postulation that each species of government has an underlying principle upon which its laws, constitution, administration, economy, security, education, social organization and sovereignty are based.

For him there are three species of government: republican, monarchical, and despotic.

In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body or only a part of the people is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.

Respecting this definition, republics can be more or less democratic. A republic where the power is in the hands of few people, who monopolize economic resources, who enact laws and control political bodies or institutions, is aristocratic or oligarchic. We can say that in these republics democracy is not consolidated.

Democracy essentially flourishes in republics, though, because their definitions certainly overlap. In a republic the supreme power is possessed by the people, and it is democratic, de facto, when the whole body of the people, directly or through representation, exercises it.

The more an aristocracy borders on democracy, the nearer it approaches to perfection; and, in proportion, as it draws towards monarchy, the more it is imperfect.

               Inverted pyramid of power in the different forms of government

On the principles of the three kinds of government

Virtue is the principle of a republic, and by virtue Montesquieu does not refer to moral rules, but to a sort of political virtue characterized by the love of the country and its laws.

This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself. This love is peculiar to democracies. In these alone the government is intrusted to private citizens. Now, government is like everything else: to preserve it, we must love it.

Honour is the principle of a monarchy, and by honour he considers the quest for glory and the aspiration to preferments and titles.

Honour sets all the parts of the politic body in motion, and, by its very action, connects them; thus, each individual advances the public good, while he only thinks of promoting his own interest. True it is, that, philosophically speaking, it is a false honour which moves all the parts of the government; but even this false honour is as useful to the public as true honour could possibly be to private people. Is it not a very great point, to oblige men to perform the most difficult actions, such as require an extraordinary exertion of fortitude and resolution, without any other recompense than that of glory and applause?

Fear is the principle of a despotic government, and in making us aware of this evil Montesquieu was an ardent warrior, a pioneer, a dedicated, relentless worker.

As virtue is necessary in a republic, and, in a monarchy, honour, so fear is necessary in a despotic government; with regard to virtue, there is no occasion for it, and honour would be extremely dangerous. Here, the immense power of the prince is devolved entirely upon those whom he is pleased to intrust with the administration. Persons, capable of setting a value upon themselves, would be likely to create disturbances. Fear must, therefore, depress their spirits, and extinguish even the least sense of ambition.

The species of government and their principles according to Montesquieu

Education as reflection of a government’s principle

If the people in general have a principle, their constituent parts, that is, the several families, will also have one. The laws of education will be therefore different in each species of government: in monarchies, they will have honour for their object; in republics, virtue; in despotic governments, fear.

As we have seen, virtue is the principle of democracy. But, this higher-ranking feeling and commitment to the nation may not be natural, since it implies some level of self-abdication, thus it must be established by law and instilled in the human spirit through education and example.

It is in a republican government that the whole power of education is required. Everything, therefore, depends on establishing this love in a republic; and to inspire it ought to be the principal business of education, but the surest way of instilling it into children is for parents to set them an example.

The opposite can also be found: as limited education in despotic governments.

As education in monarchies tends to raise and ennoble the mind, in despotic governments its only aim is to debase it. Here, it must necessarily be servile: even in power such an education will be an advantage, because every tyrant is at the same time a slave.

Excessive obedience supposes ignorance in the person that obeys. The same it supposes in him that commands; for he has no occasion to deliberate, to doubt, to reason; he has only to will.

In despotic states each house is a separate government. As education, therefore, consists chiefly in social converse, it must be here very much limited: all it does is to strike the heart with fear, and to imprint on the understanding a very simple notion of a few principles of religion. Learning here proves dangerous, emulation fatal.

If there is poor or no education under the despotic rule, what could touch men’s hearts and drive their minds, besides fear?

One thing, however, may be sometimes opposed to the prince’s will, namely, religion. The laws of religion are of a superior nature, because they bind the sovereign as well as the subject.

That`s the reason why religion is so closely associated to this kind of government and it is not surprising that this author’s masterpiece featured the infamous Index Librorum Prohibitorum.

In those states religion has more influence than anywhere else: it is fear added to fear.

The love of equality

Montesquieu was also one of the first political philosophers to associate the love of equality and the sense of frugality with democracy and the taste for luxury with despotic governments.

A love of the republic, in a democracy, is a love of the democracy; as the latter is that of equality. A love of the democracy is, likewise, that of frugality. Since every individual ought here to enjoy the same happiness and the same advantages, they should, consequently, taste the same pleasures and form the same hopes; which cannot be expected but from a general frugality.

The love of equality and of a frugal economy is greatly excited by equality and frugality themselves in societies where both these virtues are established by law. In monarchies and despotic governments, no body aims at equality; this does not so much as enter their thoughts; they all aspire to superiority. People of the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-subjects.

However, be careful while trying to sort the wheat from the chaff; many try to impose an excessive equality, which means crushing all individuality.

Democracy hath, therefore, two excesses to avoid; the spirit of inequality, which leads to aristocracy or monarchy; and the spirit of extreme equality, which leads to despotic power, as the latter is completed by conquest.

Stealing the chickens – the corruption of the principles

The corruption of each government generally begins with that of the principles.

The principle of democracy is corrupted, not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those whom he has chosen to command him.

It is very interesting to notice that Montesquieu warned us about how a bad leadership or the lack of leadership could corrupt the people and democracy

The people fall into this misfortune when those in whom they confide, desirous of concealing their own corruption, endeavour to corrupt them. To disguise their own ambition, they speak to them only of the grandeur of the state; to conceal their own avarice, they incessantly slate theirs.

The corruption will increase among the corrupters, and likewise among those who are already corrupted. The people will divide the public money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusements of luxury. But, with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands.

We must not be surprised to see their suffrages given for money. It is impossible to make great largesse to the people without great extortion; and to compass this, the state must be subverted.

… also about corruption being the very nature of a despotic government.

The principle of a despotic government is subject to a continual corruption, because it is, even in its nature, corrupt.

After what has been said, one would imagine that human nature should perpetually rise up against despotism. But, notwithstanding the love of liberty, so natural to mankind, notwithstanding their innate detestation of force and violence, most nations are subject to this very government.

The price of liberty

When the body of the people is possessed of the supreme power, this is called a democracy. Nonetheless, democracies are not naturally free, only in moderate governments, and political liberty can only be found where there is no abuse of power.

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. To prevent this abuse, it is necessary, from the very nature of things, power should be a check to power.

A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.

For Montesquieu, political liberty, relative to the laws of a nation and its constitution, arises from a certain distribution of the three powers.

Analysing the constitution of England, that in 1688 ended the absolute power of the monarch with the ‘Glorious Revolution’ and established a kind of “king-controlled-by-parliament” government, he aimed to demonstrate that political liberty can be achieved in practical terms and not only as utopia, since the three powers enunciated – the legislative, the executive and the judiciary – are separate in different bodies or persons, each with enough autonomy to check the other, in a balanced distribution of forces.

The legislative – by which temporary or perpetual laws are enacted, and those that have been in force are amended or abrogated.

The executive – in respect to things dependent on the law of nations, by which peace or war are made, and the public security is established.

The judiciary – in regard to matters that depend on the civil law, by which criminals are punished, and the disputes that arise between individuals are determined.

The three branches of power

There would be an end of 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 that of trying the causes of individuals.

Where these three powers are united in one person, the subjects groan under the most dreadful oppression. Hence, it is that many of the politicians, whose aim has been levelled at arbitrary power, have constantly set out with uniting, in their own persons, all the branches of magistracy, and all the great offices of state.

The idea is that the three main bodies of power act in consonance, checking and preventing the abuses and arbitrariness of one another.

Illustration by The Phoenix

Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic: for, as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.

But, if the legislative power, in a free state, has no right to stay the executive, it has a right, and ought to have the means, of examining in what manner its laws have been executed.

The legislative role to impeach the corruption and improbity of the executive is highlighted. That was an innovation from the constitution of England and a considerable advance in terms of ensuring public accountability to the intrusted power of a prince, a prime minister, a president or any government official.

It might also happen, that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not, punish. But, in general, the legislative power cannot try causes; and much less can it try this particular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment?

To the senate, for the congress represents the accuser, the people.

Although it may look paradoxical that an impeached president still needs the judgement of the senate to be removed from office, in the roots of the legislative branch you can find the answer. The congress and the senate are, originally, distinct bodies, the first representing directly the people and the second the nobles or the aristocracy of a nation.

According to Montesquieu, the congress, representing the people, has the right of accusing the malpractices of the executive, but it would be unfair if the accusation, the trial and the condemnation were all performed by the same body.

The coverup: January 19, 2020

At this point, the political liberty related to the constitution intersects the political liberty related to the subject.

Philosophical liberty consists in the free exercise of the will; or, at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security; or, at least, in the opinion that we enjoy security. This security is never more dangerously attacked than in public or private accusations. It is therefore on the goodness of criminal laws that the liberty of the subject principally depends.

Here, we find the reason why the legislative power, which enacts, amends or abrogates laws, must be separate and independent from the judiciary power, which tries civil and criminal causes.

Suffrage and sovereignty in a democracy

Montesquieu advocates that in a country of liberty, every man, who is supposed a free agent, ought to be his own governor; consequently the legislative power should reside in the whole body of the people, and since this direct exercise is impossible in large states, the people should transact by their representatives what they cannot transact by themselves.

In a democracy, the people are in some respects the sovereign, and in others the subject. There can be no exercise of sovereignty but by their suffrages, which are their own will: now, the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government. And, indeed, it is as important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given.

As the division of those who have a right of suffrage is a fundamental law in republics, the manner also of giving this suffrage is another fundamental. The suffrage by lot is natural to democracy. The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country. Yet, as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it.

Obviously, the universality of suffrage, as its secrecy, were, until the 19th century, only the rudiments of what we know and defend nowadays. As an example, in 1800, about 5% of the population of England had the right to vote; in 1867 it raised to 32%; some women were given the right to vote in general elections in 1918 and only in 1928 men and women over 21 could finally vote.

We must understand that while using the analysis of the governments, laws, rules and manners of different countries and nations to illustrate and develop his political theory, Montesquieu’s view of the importance of education, social and economic equality, abolition of slavery, inclusive suffrage and representativeness, constitutional and individual political liberty, separation of the three branches of power, use of checks and balances, for the consolidation of democracy, was far, far, far beyond the horizon of his time and ahead the mentality of his peers.

The most challenging enterprise I undertook – to review Montesquieu – for his genius dreamed, in 1748, infinitely above what most of us managed to achieve in 2020.

My mission here is nothing more than drink from this calyx of knowledge,  cover the most relevant topics amongst numerous and express my admiration and gratitude for a philosopher whose main aim was to educate, for the freedom of mankind, for the fairness of its laws and rules, for the justice manifested in terms of equity and sovereignty; debasing ignorance, undermining corruption and fighting against any sort of abuse of power and tyranny perpetrated by selfish, wicked minds.

The most happy of mortals should I think myself, could I contribute to make mankind recover from their prejudices. By prejudice, I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves.

It is in endeavouring to instruct mankind that we are best able to practise that general virtue which comprehends the love of all.

Charles-Louis de Secondat – né le 18 janvier 1689 à La Brède et mort le 10 février 1755 à Paris.

References:  Translation to English from the original in French by Thomas Nuget, 1750.

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