Montesquieu: The Elements of Political Liberty

The French revolt paralleling Hume’s critique of reason came through Montesquieu (1689-1755). Again a new set of problems was opened that could not be covered by the Myth of Reason or the contract theory of government. But here the parallel ends, for the approach of Montesquieu differs as widely from that of Hume as the French political situation differed from the English. Hume was the philosopher of a settled society that had passed through a revolution. A splenetic humor is creeping up, tempered in Hume by a natural complacency; but through the veneer of his conformism and skepticism one can sense other possibilities: the century of Hume is the century of Beckford and his Vathek. The France of Montesquieu is full of unrest presaging a revolution; the expectancy of movement, the smell of unknown horizons, is as characteristic of Montesquieu as a certain musty smell of stagnation is peculiar to Hume.

It may surprise the reader to see Montesquieu and Hume com­pared in terms of atmosphere, but I am not indulging in poetic license. It is necessary to get a feeling of the atmosphere if we wish to understand the significance of Montesquieu’s work at all. The great treatise De l’esprit des Lois (published 1748) is a curiosity in the literature on politics, for there exists no other work of similar physical dimensions, of a similar range of problems, of a comparable reputation, and of an investment of some twenty years of labor that, if we look for tangible results, does not offer any.

We can scratch up some minor ideas, such as the suggestions for the reform of criminal law, or Montesquieu’s stand against slavery, his personal enthusi­asm for liberty, or his tripartite division of governmental powers into legislative, executive, and judiciary, all of which, though not unimportant, are not in a reasonable proportion to the magnitude of his work. But his name is not associated with any outstanding contribution touching the principles of political theory. The results of the Esprit des Lois are distinctly not worth reporting like those of Machiavelli, Bodin, Hobbes, or Vico.

Why Montesquieu is Important

The importance of Montesquieu’s work lies entirely in its restate­ment of the range of problems of a system of politics at a time when this range had been deplorably reduced through the intellectual provincialism of the reason and contract theories. It is a restitution of the complex of problems in principle. The problems themselves are not integrated into a system. Incompatible fragments of theory stand side by side because Montesquieu had not the philosophical power of constructing a system, and the application of his theory to large masses of historical materials is irrelevant because he did not have the power of penetrating them critically.

The Esprit des Lois is in its theoretical as well as in its empirical aspects the work of a dilettante, but of a dilettante with enthusiasm, with ambition, with a great horizon, and with a flair for the essentials. Montesquieu was clear about the problem that faced him. The center of politics is man, and what his time needed was a science of man.

In the preface to the Esprit des Lois he praises himself as happy if his work could help in the destruction of “prejudices,” and by prejudices he means “the fact that man does not know himself.” Hume’s idea of sympathy is recalled when he says that man is pliable to the impression of others to the degree that he is capable of knowing his own nature if somebody shows it to him and of losing every sense of it if it is kept hidden from him. The anthropological question is introduced as the central systematic topic.

The Three Types of Laws

However, as soon as the execution of the plan commences, we run into the difficulties of a technically incompetent terminology slurring over the problems. Space does not permit a step-by-step disentangling of the messy book I, On Laws in General. I must refer the reader to the original and shall give only the substance of the argument.

Man belongs structurally to several realms: he is a physical object, an animal, he has intellect, a moral personality, and a spiritual personality capable of religious experiences. This structure determines his relations to his environment in the widest sense of the word, comprising nature, fellowmen, and God. The relations between man and his environment are governed by rules that have been fixed by the Creator and that are accessible to human knowledge.

This set of rules Montesquieu calls the “laws of nature,” comprising the laws of physics as well as the natural rules governing social relations and the natural rules governing the relations with God. As man is fallible, weak, and influenced by passions, he is liable to depart from some of these rules. The rules of the physical world are beyond his reach, but in religion, morals, and politics he can violate God’s natural rules. In order to prevent the violation, or at least to minimize it, man has to be reminded permanently of them, and this end serves the laws of religion by which God recalls to man his natural state, the moral laws by which the philosophers keep moral consciousness alive, and the “political and civil laws” by which the legislators keep men to their social natural relations.

The last mentioned class of laws is the subject of the Esprit des Lois (1.1-2).

The Right Government for a People

Thus far the exposition of the desirable political and civil laws might result in another natural law construction. But at this point the new factor of the people is introduced. The people is conceived on the same structural lines as man, from its physique through its temperament and moeurs to its religion.

Within the framework of general human nature, nations differ. They are not simply replicas of one another, but have each their individuality. It is the art of the legislator to adapt the political and civil laws to the circumstances of the case. The whole of variations that the general law undergoes in the process of its adaptation to the structural elements of an individual people is what Montesquieu calls the esprit of a legal order (1.3).

The structural features that have a bearing on the esprit of the laws fall into two classes. The first class consists of the governmen­tal structural elements. A people may be organized as a republic, a monarchy, or a despoty. The question of which should be preferred is determined by the size of a people. Small countries are most fa­vorably organized as republics (democratic or aristocratic); middle-sized territories as monarchies; large territories like the Asiatic as despoties.

The second class consists of the “more particular” elements, ranging from the climate and soil to the religion of a people. The organization of the Esprit des Lois follows on the whole this program. The frequent charges that the work is for the larger part disorganized are not justified. It is organized about as well as it can be considering that the theoretical problems are skipped with serene insouciance.

The Esprit des Lois Table of Contents

The following table of contents of the Esprit des Lois is supposed to bring out the systematic order to the topics that Montesquieu’s arrangement of thirty-one coordinated books leaves in the dark, and it is supposed to present the catalog of problems that Montesquieu has reinstated.

I. General Structural Elements (Books 2-8)

(1) The Three Types of Government (2)

(2) The Principles of the Three Types of Government (3)

(3) The Influence of the Principles

(a) On Educational Laws (4)

(b) On Political Laws (5)

(c) On Civil and Criminal Laws (6)

(d) On Laws Concerning Luxury and Women (7)

(4) The Corruption of the Three Principles of Government (8)

II. Particular Structural Elements (Books 9-25)

(1) Security

(a) Offensive (9)

(b) Defensive (10)

(2) Liberty of Man

(a) Political Liberty, the Constitution (II)

(b) Civil Liberty, Slavery (12)

(c) Revenue, Taxes (13)

(3) Climate and Soil

(a) Influence of Climate on Man and His Customs (14)

(b) Climate and Slavery (15)

(c) Domestic Slavery; Position of Women (16)

(d) Political Servitude (17)

(e) Nature of the Terrain; Topographic Influences (18)

(4) The National Spirit (19)

(5) Economics

(a) Commerce; Nature and Distinctions (20)

(b) Evolution of Commerce (21)

(c) Use of Money (22)

(6) Size of Population (23)

(7) Religion (24-25)

III. Legislative Technique

(1) Relations between Civil, Political, Moral, Religious, and Natural Laws (26)

(2) Composition of Laws (29)

IV. Historical Digressions

(1) The Roman Law of Succession (27)

(2) Civil Laws of the Franks (28)

(3) Feudal Law of the Franks, and Monarchy (30-31)

The Infinite Varieties of Peoples

A perusal of this table of contents shows its systematic weakness but, at the same time, the total change of atmosphere since the time of Hobbes and Locke. The obsession of constructing an ideal system of government has given way to the recognition of the infinite variety of peoples who require governmental orders in accordance with their historic individualities. If a system of institutions is well adapted to the general spirit of a people, it has become so strongly individualized, in the opinion of Montesquieu, that it is unusable for any other people. (Montesquieu might be read with profit by the incurable provincials who believe that a system of government that has worked in one country is a panacea for the evils of the world.)

The feeling that nations are historical individuals is all of a sudden present. The feeling is strengthened by a great enlargement of the historical and geographical horizons. Montesquieu’s work abounds in references to China, Japan, Persia, and primitive societies. One can sense his enthusiasm in discovering the multitude of peoples and civilizations, the rich diversification of mankind. There are still remnants of the brutality of reasonable man, who believes that his own standards define the ideal man and that everybody else has to be transformed in his image, but his prevailing sentiment is that of a profound respect for variety and the feeling that it should be left alone.

Montesquieu goes so far as to admit that Islam is the proper religion for the Near Eastern regions and that the actual extension of Christianity corresponds to its natural environment. He further believes that new religions should not be introduced frivolously in a country because this would endanger the solidarity of the national spirit. When, however, critics drew his attention to the conclusion that this principle would preclude Christian mis­sionary activity, he retracted it and admitted that the true religion was, of course, exempted from the rule. The incident reveals his quandary. He feels that Christian Western civilization is itself a historic individuality and not obligatory for other peoples, but does not have the inner freedom to admit the fact, nor the intellectual power to construct a philosophy of history that could cope with this problem.

Fated for a Historical Mission

There is even present in Montesquieu the sentiment of fatalism that appears in its full strength only in the later nineteenth century as the fruit of historicism. In book XI. 5 of the Esprit des Lois he says that every state has besides its general aim of maintaining itself in existence “a particular aim,” its peculiar historical mission. In his essay on Roman history the “idea” of Rome, its drive for aggrandizement, is the guiding principle for the dissection of the Roman destiny.

Once the mission, the aim, has taken shape, the course of history is inevitable for a people, and the aim will not be discarded even if it leads to destruction. The statesmen as well as the nations are helpless against their destiny: “if Caesar and Pompey had thought like Cato, others would have thought like Caesar and Pompey, and the Republic that was destined to perish would have been torn into the abyss by another hand.”^fn  The sentiment of destiny and decadence is present in Montesquieu as in Vico.

Reflections of this kind show how far Montesquieu has been able to realize his program of restoring the science of man. The rationality of man has become one structural element among oth­ers; political science must incorporate into its system the complete structure of man and deal with politics in all the complexity that results from the complex structure of man. The body politic is not a realm of reason, but a sphere of life in which climatic and temperamental factors exert their influence as much as religious experiences. The theory of the general spirit and its fatal determin­ing force has added the factor of the historical existence of man.

Political Liberty is Tranquility of Mind

The factors are assembled in Montesquieu’s work, but they are not knit into a system. The sentiment of historical fatality appears now and then, but it does not interfere with the more optimistic attitude of governmental reform that appears in other passages. A final word on this side of Montesquieu is necessary because it was, in the sphere of ancillary evocations, the most effective.

The three forms of government that Montesquieu distinguishes are less im­portant as scientific types than as controversial political ideas. The republic, democratic or aristocratic, characterized by civic virtue is modeled on Rome; Montesquieu considers it a form of government suitable for small political communities, of no serious importance in current politics.

The despoty, an arbitrary rule of a monarch based on the principle of fear, is modeled on the France of Richelieu and Louis XIV; it is the form that has replaced the other French constitu­tion, much to the detriment of the French people. Monarchy, a royal rule under fixed law, based on the principle of honor, moderated by the nobility and a magistracy that functions as the “guardian of the law,” is the desirable type that should be restored in France.

The English constitution attracts his interest as a form of gov­ernment that assures liberty and the rule of law and can serve as a model for the French reform. In this context Montesquieu has given what may be called the classic rational idea of liberty, in contrast with our modern emotional idea of liberty. “Political liberty,” he defines, “is the tranquillity of mind that results from the conviction that everybody has his security” (XI.6); but this liberty is not a liberty to do what one wants to do. Under a rule of law liberty consists in “the power to do what one should will, and not to be compelled to do what one should not will to do” (XI.3).

Or, to bring the contrast with the modern idea to the point: for Montesquieu a free government is given when everybody can safely do what he should do according to moral rules, while today we conceive of a free government as a state where people can do what they want to do whether they should do it or not. In order to secure liberty in this sense it seems necessary to distribute the legislative, executive, and judiciary powers on different persons: the principle of the separation of powers.

Notes

This excerpt is from History of Political Ideas (Volume VII): The New Order and Last Orientation (Collected Works of Eric Voegelin 25) (Columbia, MO: University of Missouri Press, 1999)

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