Baron de Montesquieu is one of the most interesting thinkers who influenced the founders of our nation. He was highly thought of by both Jefferson and Madison, among others. Through Madison and others, his work influenced the final form of our Constitution. He also represents an important writer of the Enlightenment, and perhaps the most important and representative continental political philosopher. From the perspective of these blogs, reading Montesquieu is important for another reason: He, like Rousseau, represents a synthesis of the emerging modern and Classical and Renaissance ways of thinking. [1] He is both representative of a new way of thinking and, at the same time, a continuation of a way of thinking characteristic of Western political thought from Greece to Rousseau—something needed in our day as well.
Montesquieu, whose full name was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, was born January 19, 1689, one year after the Glorious Revolution in England and 100 years before the beginning of the French Revolution. [2] He was from a noble family, and inherited a large estate, which he managed for a time. He was educated as a lawyer, and was for a time the chief administrative and judicial officer of Bordeaux, a position that allowed him ample time to reflect upon the law. Like many Enlightenment thinkers, Montesquieu was interested in natural science.
In 1724, Montesquieu published a successful political novel, “Parisian Letters.” This event changed his life, as he transitioned from a magistrate to being an intellectual figure. Montesquieu travelled widely in Europe, and while visiting Great Britain became an admirer of the British parliamentary system. In 1731, he began his masterpiece, the “Spirit of the Laws,” which he completed in 1748. Both the Parisian Letters and Spirit of the Laws are political and social commentaries and both defend freedom against despotism.
Spirit of the Laws
Spirit of the Laws is without doubt one of the most important and influential books of political philosophy in Western history. [3] In it, Montesquieu systematically sets out his legal philosophy in a work filled with references to laws and legal systems of history. The book is dense with examples from Greek, Roman, French, British, and other legal systems. He attempts, as he says at the beginning, to not follow his prejudices, but the “nature of things,” following the inner connections between laws that connects a law as a singular human achievement. [4]
Montesquieu as a Natural Law Thinker. There is a good deal of debate over whether and to what degree Montesquieu is a Natural Law thinker. The mere appeal to law as “an inquiry into the nature of things” indicates that, in some way, he is. Montesquieu, however, rejected Hobbes dreary form of Natural Law and his “war of all against all” theory. Instead, Montesquieu sees human beings as essentially social, desirous of human interaction and society. The growth of law and society is, therefore, a natural development of human nature and potential. This nature differs from people to people, climate to climate, practical situation to practical situation. Nevertheless, “Before laws were made there were relations of possible justice.” [5] Before the emergence of specific, positive laws of a people, there are laws of nature that take their content from the “fame and nature” of the human person. [6]
Positive Law according to Montesquieu. Every concrete human society forms specific, positive laws to organize social life and provide a legal structure for measuring out justice and resolving disputes. This positive law, though based upon fundamental notions of justice, varies according to the conditions of the people who organize a legal system and create its laws. Geographic, climatological, economic, social, and other factors function in such a way that no two societies will have the same positive laws nor do differences between them indicate than any particular system is unjust. Thus, … “the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favor it is established.” [7]
Forms of Governments. Just as the laws of a particular society will differ from other societies, there are different forms of government by which societies are organized. For Montesquieu, the forms are basically three: Monarchies, Republican Democracies, and Despotisms. Throughout his works, Montesquieu exhibits a dislike of despotism, which is the rule of one person according to his or her own whims. Monarchies are the rule of one, but this rule is moderated by the nobility and citizens of the nation, each with their own sphere of liberty and influence. Republics are representative governments, governments in which the people chose representatives. [8] Montesquieu goes into great detail in describing the characteristics of each form of government. For the purpose of this essay, we will concentrate on that form most important for Americans: representative, democratic, republican government.
Principles of Republican Government. In a republican form of government, either the people as a whole or, more frequently, their elected representatives possess the supreme power to legislate and organize the government. In order to maintain this order, virtue is required and virtue is the fundamental principle of republican government, for “in a popular state, one more spring is necessary, namely virtue.” [9] Obviously, if virtue is central, then education and character formation are of supreme importance for maintaining a republican form of government, where the whole power of education is required to form a citizen capable of self-rule. [10]
Here it is that our educational system most clearly fails. It is not enough that children learn facts and figures, citizens must love the nation in order for a republic to sustain itself:
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 that preference itself. This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it. [11]
It is a defect in contemporary education that it concentrates to an unhealthy degree upon the defects of our democracy and fails to educate our youth in its fundamental principles, historic successes, and gradual improvements. This is true in public and many private schools alike. It is particularly present in those universities that form future leaders. Too often young people leave institutions of higher learning alienated from our republican institutions and unable and unwilling to appreciate its achievements. This is an area in which a healthy balance needs to be restored.
Goal of Legislation in Republican Democracies. In order to create a coherent body of law, there must be an animating principle of legislation. In the case of republican democracies, the animating principle must be the achievement of greater equality. In the case of 16th Century France, this liberty could only be achieved by restricting the wealth and power of the nobility and king. [12] In contemporary America, the use of antitrust laws, incentives for employee ownership of corporations and private businesses, and the removal of barriers that render small businesses unable to compete, and inheritance taxes are just a few of the ways that economic liberty and equality can be maintained. As to social liberties, in a well-formed republic certain civil rights are maintained to allow the full exercise by citizens of their gifts and talents.
This principle of equality is not, however, absolute in republics. There can be an excess of equality. “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 he has chosen to command him.” [13] True equality is not some abstract “extreme equality” that ignores differences of attainment, gifts, and effort. [14]
Moderation and Balance of Powers. Moderation is essential for liberty to exist. “Political liberty is to be found only in moderate governments.” [15] Unfortunately, moderation is difficult to achieve because it is in the nature of human leaders to press their quest for power as far as possible. In one of his most perspicuous passages, Montesquieu notes that:
Whenever we observe in any age or government the different bodies of state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments as an evident mark of their corruption. Through a fatality inseparable from human nature, moderation in great men is rare: and it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior class of people, it is less difficult, perhaps to find men virtuous than extremely prudent. The human mind feels such an exquisite pleasure in the exercise of power: even those who are lovers of virtue are so excessively fond of themselves that there is no man so happy as not still to have reason to doubt his honest intentions;…. [16]
Based upon this observation concerning human nature, it is easy to see that it is inherently dangerous for the legislative, judicial and executive functions to be combined:
“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 is 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 legislature. Were it joined with the executive power the judge might behave with violence and oppression.”[17]
The solution is to separate and make these functions both independent and mutually inter-dependent, so that one power cannot overcome the others. This pattern of thinking was influential in the way in which the U.S. Constitution separates and divides power among the legislative, executive, and judicial branches of government.
In my view, the greatest danger to our system of government relates to the way in which the growth of a bureaucratic state with immense administrative agencies has created a fourth center of government that often acts as legislator (issuing regulations), judge (interpreting and enforcing regulations) and executive (administering and issuing orders under regulations). The balance of powers upon which republican democracy rely are largely absent in dealing with this vast, only partially accountable bureaucracy. When we get to De Tocqueville and his Democracy in America, we will take a look at the first person to perceive the threat of bureaucracy to democratic government.
Conclusion
As mentioned at the beginning, Montesquieu was an important thinker for the writers of the United States Constitution. He was quoted more frequently than any other writer by the founders as they explained what they had done and why. The Spirit of the Laws is not just important for the form of the Constitution, for the founders also understood his views on war and peace, on taxation, and on a number of other issues that impacted the form of the document. His views and concerns are of value even today—and it is too bad that more of our leaders do not read and ponder his thought.
I had intended to spend only one week on Montesquieu, but next week I intend to write a shorter blog dealing with religion and the state.
Copyright 2021, G. Christopher Scruggs, All Rights Reserved
[1] As I have observed in prior writings, the term post-modern is really a place-holder as a name for an emerging era in human history. All “post-modern” means is “after-modern.” The term does not describe a new and emerging world view. Many prominent “post-modern” thinkers seem to me to be really “end game-modernity,” that is following modernity to its logical, and ultimately destructive, conclusion. Having attempted to construct human life and understanding on a fully naturalistic, materialistic, hyper-individualistic model, since Nietzsche modernity has been degenerating into nihilism. In some respects, I think of modernity as a kind of human adolescence: Having discovered its full range of intellectual, scientific, and technological powers, modernity rebelled against tradition and often common sense. The next era may be something like the “mature-era,” as a post-adolescent modernity begins to recover a deeper sense of community with the past.
[2] This brief review of Montesquieu’s life and work is dependent upon, among other works, “Baron de Montesquieu, Charles-Louis de Secondat,” Stanford Encyclopedia of Philosophy (downloaded May 17, 2021).
[3] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, volume 38 “Montesquieu and Rousseau” Mortimer Adler Ed. (Chicago, I’ll: Encyclopedia Britannica, 1952).
[4] Id, at xxi, 1.
[5] Id.
[6] Id, at 2.
[7] Id, at 3.
[8] Id, at 4.
[9] Id, at 9.
[10] Id, at15.
[11] Id.
[12] Id, at 19-20.
[13] Id, at 51.
[14] Id, at 52.
[15] Id, at 69.
[16] Id, at 250.
[17] Id, at 70.