The Spirit of the Laws

The Spirit of the Laws

De l'esprit des loix, 1st edn 1748, vol. 1
Author Montesquieu
Country France
Language French
Subject law
Genre non-fiction
Publication date
 1748
Published in English
 1750
Media type paper

The Spirit of the Laws (French: De l'esprit des lois, originally spelled De l'esprit des loix; also sometimes translated The Spirit of Laws[1]) is a treatise on political theory, as well as a pioneering work in comparative law, published in 1748 by Charles de Secondat, Baron de Montesquieu.[2] Originally published anonymously, partly because Montesquieu's works were subject to censorship, its influence outside France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation.[3] In 1751 the Roman Catholic Church added De l'esprit des lois to its Index Librorum Prohibitorum ("List of Prohibited Books"). Yet Montesquieu's 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 around twenty one years researching and writing De l'esprit des lois, covering a huge range of topics including law, social life and the study of anthropology, and providing more than 3,000 commendations.[4] In this treatise Montesquieu argued that political institutions needed, for their success, to reflect the social and geographical aspects of the particular community. He pleaded for a a constitutional system of government with separation of powers, the preservation of legality and civil liberties, and the ending of slavery.[4]

Constitutional theory

In his classification of political systems, Montesquieu defines three main kinds: republican, 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 a fixed set of laws exists that can restrain the authority of the ruler: if so, the regime counts as a monarchy; if not, it counts as despotism.

Principles that motivate citizen behaviour according to Montesquieu

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.

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 Montesquieu'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:

Building on and revising a discussion in John Locke'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 Corpus 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.
Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including the right to a fair trial, the presumption of innocence and the 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 slavery and for the freedom of thought, speech and assembly.

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 lack rigour 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

Notes

  1. ↑ Montesquieu (1977). David Wallace Carrithers, ed. The Spirit of Laws: A Compendium of the First English Edition. Berkeley: U California P.
  2. ↑ De l'Esprit des loix ou du Rapport que les loix doivent avoir avec la constitution de chaque gouvernement, les moeurs, le climat, la religion, le commerce, &c . à quoi l'auteur a ajouté des recherches nouvelles sur les loix romaines touchant les successions, sur les loix françoises, & sur les loix féodales. I (1 ed.). A Genève, chez Barrillot & fils. Retrieved September 7, 2016 – via Gallica.
  3. ↑ Now best known as published in New York by Hafner Press in 1949, using Nugent's original version and with an introduction by Franz Neumann.
  4. 1 2 Cohler, et al., "Introduction" to the 1989 Cambridge UP ed.

References

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