Title Page - 1st edition
Spirit of the Laws online
Definition of sovereignty - the full right and power of a governing body over itself, without any interference from outside sources or bodies. In political theory, sovereignty is a term designating supreme authority over some polity.
Montesquieu's aim in The Spirit of the Laws is to explain human laws and social institutions. The key to understanding different laws and social systems is to recognize that they should be adapted to a variety of different factors, and cannot be properly understood unless one considers them in this light. Specifically, laws should be adapted "to the people for whom they are framed..., to the nature and principle of each government, ... to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered."
Understanding why we have the laws we do is important; it will discourage misguided attempts at reform. Montesquieu is not a utopian, either by temperament or conviction. He believes that to live under a stable, non-despotic government that leaves its law-abiding citizens more or less free to live their lives is a great good, and that no such government should be lightly tampered with. If we understand our system of government, and the ways in which it is adapted to the conditions of our country and its people, we will see that many of its apparently irrational features actually make sense, and that to 'reform' these features would actually weaken it.
Montesquieu believes that the laws of many countries can be made be more liberal and more humane, and that they can often be applied less arbitrarily with less scope for the unpredictable and oppressive use of state power. Likewise, religious persecution and slavery can be abolished, and commerce can be encouraged. If lawmakers understand the relations between laws on the one hand and conditions of their countries and the principles of their governments on the other, they will be in a better position to carry out such reforms without undermining the governments they seek to improve.
1. Forms of Government
Montesquieu holds that there are three types of governments: republican governments, which can take either democratic or aristocratic forms; monarchies; and despotisms. The distinction between monarchy and despotism, for instance, depends not on the virtue of the monarch, but on whether or not he governs "by fixed and established laws." (the rule of law)
Each form of government has a principle, a set of "human passions which set it in motion;" and each can be corrupted if its principle is undermined or destroyed.
Democracy and republican virtue:
In a democracy, the people are sovereign. They may govern through ministers, or be advised by a senate, but they must have the power of choosing their ministers and senators for themselves. The principle of democracy is political virtue (aka republican virtue), by which Montesquieu means "the love of the laws and of our country" including its democratic constitution. The form of a democratic government makes the laws governing suffrage and voting fundamental. The need to protect its principle, however, imposes far more extensive requirements. On Montesquieu's view, the virtue required by a functioning democracy is not natural. It requires "a constant preference of public to private interest;" it "limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow citizens;" and it "is a self-renunciation, which is ever arduous and painful."
To produce this unnatural self-renunciation, "the whole power of education is required."
1. A democracy must educate its citizens to identify their interests with the interests of their country, and should have censors to preserve its mores.
2. It should seek to establish frugality by law, so as to prevent its citizens from being tempted to advance their own private interests at the expense of the public good;
3. For the same reason, the laws by which property is transferred should aim to preserve an equal distribution of property among citizens.
4. Its territory should be small, so that it is easy for citizens to identify with it, and more difficult for extensive private interests to emerge.
Democracies can be corrupted in two ways: by what Montesquieu calls "the spirit of inequality" and "the spirit of extreme equality." The spirit of inequality arises when citizens no longer identify their interests with the interests of their country, and therefore seek both to advance their own private interests at the expense of their fellow citizens, and to acquire political power over them. The spirit of extreme equality arises when the people are no longer content to be equal as citizens, but want to be equal in every respect.
In a functioning democracy, the people choose magistrates to exercise executive power, and they respect and obey the magistrates they have chosen. If those magistrates forfeit their respect, they replace them.
Montesquieu on Aristocracies
Montesquieu on Monarchies
Montesquieu on corruption and despotism
2. Liberty
According to Montesquieu, political liberty is "a tranquility of mind arising from the opinion each person has of his safety." Liberty is not the freedom to do whatever we want: if we have the freedom to harm others, for instance, others will also have the freedom to harm us, and we will have no confidence in our own safety. Liberty involves living under laws that protect us from harm while leaving us free to do as much as possible, and that enable us to feel the greatest possible confidence that if we obey those laws, the power of the state will not be directed against us.
If it is to provide its citizens with the greatest possible liberty, a government must have certain features:
1. Since "constant experience shows us that every man invested with power is apt to abuse it ... it is necessary from the very nature of things that power should be a check to power." This is achieved through the separation of the executive, legislative, and judicial powers of government. If different persons or bodies exercise these powers, then each can check the others if they try to abuse their powers. But if one person or body holds several or all of these powers, then nothing prevents that person or body from acting tyrannically; and the people will have no confidence in their own security.
2. Certain arrangements make it easier for the three powers to check one another.
A. Legislative power alone should have the power to tax, since it can then deprive the executive of funding if the latter attempts to impose its will arbitrarily.
B. Likewise, the executive power should have the right to veto acts of the legislature
C. The legislature should be composed of two houses, each of which can prevent acts of the other from becoming law.
D. The judiciary should be independent of both the legislature and the executive, and should restrict itself to applying the laws to particular cases in a fixed and consistent manner, so that "the judicial power, so terrible to mankind, … becomes, as it were, invisible", and people "fear the office, but not the magistrate."
3. Liberty also requires that the laws concern only threats to public order and security, since such laws will protect us from harm while leaving us free to do as many other things as possible. Thus, for instance, the laws should not concern offenses against God, since He does not require their protection. They should not prohibit what they do not need to prohibit: "all punishment which is not derived from necessity is tyrannical. The law is not a mere act of power; things in their own nature indifferent are not within its province." The laws should be constructed to make it as easy as possible for citizens to protect themselves from punishment by not committing crimes. They should not be vague, since if they were, we might never be sure whether or not some particular action was a crime. Finally, the laws should make it as easy as possible for an innocent person to prove his or her innocence. They should concern outward conduct, not (for instance) our thoughts and dreams, since while we can try to prove that we did not perform some action, we cannot prove that we never had some thought.
Montesquieu's emphasis on the connection between liberty and the details of the criminal law were unusual among his contemporaries, and inspired such later legal reformers as Cesare Beccaria.
3. Montesquieu on Climate and Geography
4. Commerce
In general, Montesquieu foreshadowed some of Adam Smith's later work on political economy in favoring international trade (but his ideas were not nearly as developed as Smith's). For example, Montesquieu thought:
Commerce does not require vast armies, or the continued subjugation of other peoples. It does not undermine itself, as the extraction of gold from colonial mines does, and it rewards domestic industry. It therefore sustains itself, and nations which engage in it, over time. While it does not produce all the virtues -- hospitality, Montesquieu thinks, is more often found among the poor than among commercial peoples -- it does produce some: "the spirit of commerce is naturally attended with that of frugality, economy, moderation, labor, prudence, tranquility, order, and rule." In addition, it "is a cure for the most destructive prejudices," improves manners, and leads to peace among nations.
More of Montesquieu's thoughts on commerce
5. Religion
Religion plays only a minor part in the Spirit of the Laws. God is described in Book 1 as creating nature and its laws; having done so, He vanishes, and plays no further explanatory role. In particular, Montesquieu does not explain the laws of any country by appeal to divine enlightenment, providence, or guidance. Montesquieu considers religions "in relation only to the good they produce in civil society" and not to their truth or falsity.
Different religions are appropriate to different environments and forms of government. Protestantism is most suitable to republics, Catholicism to monarchies, and Islam to despotisms; the Islamic prohibition on eating pork is appropriate to Arabia, where hogs are scarce and contribute to disease, while in India, where cattle are badly needed but do not thrive, a prohibition on eating beef is suitable.
It is generally a mistake to base civil laws on religious principles. Religion aims at the perfection of the individual; civil laws aim at the welfare of society. Given these different aims, what these two sets of laws should require will often differ; for this reason religion "ought not always to serve as a first principle to the civil laws." The civil laws are not an appropriate tool for enforcing religious norms of conduct: God has His own laws, and He is quite capable of enforcing them without our assistance. When we attempt to enforce God's laws for Him, or to cast ourselves as His protectors, we make our religion an instrument of fanaticism and oppression; this is a service neither to God nor to our country.
If several religions have gained adherents in a country, those religions should all be tolerated, not only by the state but by its citizens. The laws should "require from the several religions, not only that they shall not embroil the state, but that they shall not raise disturbances among themselves." While one can try to persuade people to change religions by offering them positive inducements to do so, attempts to force others to convert are ineffective and inhumane. In an unusually scathing passage, Montesquieu also argues that they are unworthy of Christianity, and writes:
"if anyone in times to come shall dare to assert, that in the age in which we live, the people of Europe were civilized, you (the Inquisition) will be cited to prove that they were barbarians; and the idea they will have of you will be such as will dishonor your age, and spread hatred over all your contemporaries."
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