« A thing is not just because it is law, but it is law because it is right. » Montesquieu.
1748 – The Spirit of the Laws of Montesquieu is published in Geneva without the author’s name
We are in the France of Louis XV, a France centralized around a monarchy that left long ago the management of the country to the great bourgeois. The nobility retained its privileges, but was stripped of its weapons by the Sun King. Louis IV had indeed been burned by the Fronde of the great lords lived by his father. He then brought these nobles at Versailles, to better monitor them. The Nobility of swords became a nobility of robes (dress).
[From now on] The State is me! Louis XIV
Tocqueville will show how the bourgeois suddenly had access to culture, then took responsibilities abandoned by the Nobles in the countryside. They obtained ministerial posts but not get the privileges of these same nobles. The seeds of revolution were in 1748 already sown land of France.
It is in this pre-revolutionary context, where the law only emanates from the king by divine right, Montesquieu questions the essence of the law.
The evidence of the law
He notes, firstly, that all organized system, animal or human, is governed by laws. These laws allow these last systems to last. Conversely, the persistence of these systems is proof of the existence of laws, natural laws that existed before the emergence of systems.
Where is the law?
Since the law existed before, Montesquieu examines the state of nature. For Montesquieu, the state of nature is a state of peace (he is thus opposed to Hobbes and Rousseau who saw man as a wolf to man).
The state of nature
What are the human foundation before they are influenced by life in society?
The man :
- has the idea of God (as also believed Descartes );
- has a natural survival instinct. As such, he naturally seeks to feed and reproduce;
- he seeks reconciliation with others (this is the political animal Aristotle) as part of a company.
The state of society is a state of war
In the social contract, Rousseau says that life in society is a state where each renounce violence to enjoy the protection of the group. For Montesquieu, the society is war where everyone tries to pull the covers!
The three types of law
Before questioning the essence of laws, Montesquieu seeks to define it. There are three main types:
- laws between nations;
- vertical laws between the rulers and the ruled;
- horizontal legislation among citizens.
What is the government more compatible with the nature of man?
The monarchy ?
Montesquieu rejects the idea (widespread in the fifteenth century) that the Monarchy reproduce the father-child relationship and would be very close to the nature. Montesquieu argues, explaining that his father’s death is not the death of family life.
Not necessarily ! Each people needs his regime that suits them! It does not exist, for Montesquieu , universal political form, valid in Paris and Timbuktu. Democracy may not be effective for some companies that are not prepared by:
- their story ;
- their manners.
The types of governments
Montesquieu see three main types:
1. The Republican Plan (public affairs)
The people made a valid law for all and submit it.
The Republican government is divided into:
1.1 Democracy (if all individuals governs)
The people rule through elections in which he expresses his opinion. In democracy, particular importance should be reserved for laws that organize these elections (including quorum for the legitimacy of a law). Montesquieu has (too) great confidence in the wisdom of the people, wise enough to choose their representatives properly.
Virtue as cement democracy
The individual voting laws could impact their daily lives; he must demonstrate virtue in respecting the law
His weak point
Democracy is lost when:
- the will to equality is shrinking;
- and, conversely, when we want absolute equality, including with those who command.
In both cases, citizens no longer bear to entrust their power to « representatives. » They want to do everything by themselves. The representatives of the people, the authority of the elders are no longer respected.
Freedom then gives way to license .
Soon, the situation becomes unbearable and the citizen flees anything resembling freedom, entrusting power to a despot who restored order.
1.2 Aristocracy (if part of individuals governs only).
We’re still in a republican regime. Only a fraction of people have the power (the best (Aristos in Greek). The aristocrat as democrat, must be virtuous, because it is not exempt from compliance with the Act. However, if there are degrees in virtue, that of the aristocrat is less.
His weak point
The aristocracy can evolve into despotism, when the ruling class, the aristocrats, do not respect the laws. An external danger (an invasion for example)is then the best remedy.
Since virtue is the essential ingredient of democratic cement, it must be taught with force.
The spirit of commerce
It should be encouraged because it calls for restraint, work and order. But not excessive, as the accumulation of wealth is not good (Montesquieu come here Rousseau): it creates jealousy and leads to idleness. Also, should a law to ensure the sustainable and balanced distribution of wealth.
The Spirit of Laws
The law must regulate the wealth gap.
The judge is not the law. He just read it and check its application « to the letter ».
The penalty is enshrined in law. The judge’s job is therefore limited
- to verify that the case presented to him is within the scope of Act
- to check that sentence is adequate.
Montesquieu, in this respect, does not encourage too heavy penalties that encourage, in return, cruelty issues.
The republics seek allies to prevent wars by organizing themselves into federations.
2. The monarchy
The monarch is only the law and does not submit it
A single (mono) has power. But he governs according to immutable laws and is based on nobility, which is essential. Nobility plays an intermediary role between him and the people.
Unlike the Democrats, the monarch does not need to be virtuous, because it is not subject to the laws he creates. He is above the law.
Similarly for the nobility who, as we have seen under the old regime, did not shine by his excess of virtue. Nobility was wallowing in the debauchery, idleness, selfishness, greed … Nobility excelled in the art of interested flattery to the Prince. These bad examples of behavior of the ruling class are very damaging to the monarchy which is weakened in the eyes of the people.
The honor of the monarchy as cement
He pushes everyone to position vis-à-vis the monarch; to excel and thus increase the power of the monarch.
The education of the nobility
It is essential that the honor be taught. Salons where nobles gathered were there for this purpose. An « honorable action » is a « beautiful » action or « great ». No matter whether right or not. We learn the franchise (to the monarch), obedience (the monarch), good manners to distinguish themselves from the populace.
The Spirit of Laws
The law here is to freeze the wealth gap, hereditary privileges
It is ineffective because very complex. Justice must adapt to the proliferation of social conditions: the law is not the same for all). The judge may also interpret it by setting himself the trouble.
His weak point
The abolition of the nobility or loss of sense of « honor » endanger the monarchy.
The strongholds are positioned at the border.
3. The despotic regime
There are no laws
A tyran governs alone. He exercises power directly without law. He often indulges the pleasure leaving the bass duties to a second. The tyran needs no virtue or honor.
This is the most egalitarian regime for all (except one). Peoples are in the same condition of slave. The honor should be banned because the tyran has no interest in seeing one of his slaves take power by ambition.
The fear of despotism as cement
Fear takes unwavering obedience of subjects.
The indoctrination rather than education
Source of rebellions, education is banned by the despot. Instead, the despot prefers indoctrination. Indoctrination is useful to keep control on the slaves but also for their leaders: these whip without thinking. Evil happens when excessive wealth destroys the spirit of commerce.
Education crowds must at all be prohibited. See also thinks that this La Boétie.
The separation of powers, legislative, executive and judiciary is the best guarantee of political freedoms.
Excerpt The Spirit of the Laws – Montesquieu
Of Negro slavery (ironic text)
If I had to support the right we had to make the negro slaves, here’s what I would say: The people of Europe have exterminated those of America, they had to enslave those of Africa, use it to clear so terres.Le sugar would be too expensive if we did not work the plant that produced by esclaves.Ceux in question are black from head to foot; and they crushed the nose so that it is almost impossible to plaindre.On can not put in mind that God is a being very wise, has put a soul, especially a good soul, in a body noir.Il everything is so natural to think that this is the color that is the essence of humanity, the peoples of Asia, who make eunuchs continue to deprive blacks of their report with us a more marquée.On can judge the color of the skin by the hair, which the Egyptians, the best philosophers of the world, was of such great consequence, they were dying all their red men fell into the mains.Une proof that negroes have no common sense is that they are more cases of a glass necklace to that gold, which among civilized nations, is a so great conséquence.Il is impossible that we assumed that these people are men, because, if we suppose men, we begin to believe that we are not ourselves chrétiens.Des too little minds exaggerate the the injustice done to the Africans, for if it was so they say, would it not come into the head of the princes of Europe, which make them so many useless agreements, to make it a General in favor of mercy and pity.
Excerpt The Spirit of the Laws – Montesquieu
Separation of powers
There is, in every state, three kinds of powers:
- the legislative power,
- the executive power of the things that depend on international law
- and the executive power of those who depend on the civil law.
By the first, the prince or magistrate makes laws for a time or forever, and amends or abrogates those that are made. By the second, he makes peace or war, sends or receives embassies, establishes security, prevents invasions. By the third , he punishes criminals, or determines the particular dispute. We will call it the power of judging ; and the other simply the executive power of the condition.The political liberty in a citizen is that peace of mind that comes from the opinion each person has of his safety; and to have this liberty: it is necessary that the government is such that a citizen can not fear another citoyen.Lorsque, in the same person or the same body of magistrates, the legislative power is held in the executive power, there is no freedom ; because they may fear that the same monarch or senate should enact even tyrannical laws , to execute them tyranniquement.Il are still no liberty, if the power of judging be not separated from the legislative power and the executor. If it were joined to legislative power, the power over the life and liberty of citizens would be arbitrary; for the judge would be the legislator. Were it joined to the executive power , the judge could have the force of a oppresseur.Tout would be lost if the same man or the same body, whether of the nobles or of the people, to exercise those three powers: the to make laws, that of executing the public resolutions, and of trying the dispute particuliers.Dans most kingdoms of Europe, the government is moderate; because the prince, who has the first two powers, leaves his subjects exercising third. Among the Turks, where these three powers are united on the head of the sultan, he reigns a frightful despotism.