The Spirit of the Laws

The Spirit of the Laws (French: De l'esprit des lois, also sometimes called The Spirit of Laws^[1]) is a treatise on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu in 1748 with the help of Claudine Guérin de Tencin. Originally published anonymously partly because Montesquieu's works were subject to censorship, its influence outside of France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation. In 1751 the Catholic Church added L'esprit des lois to its Index Librorum Prohibitorum ("List of Prohibited Books"). Yet Montesquieu's political 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 nearly twenty years researching and writing L'esprit des lois (The Spirit of the Laws), covering a wide range of topics in politics, the law, sociology, and anthropology and providing more than 3,000 citations.^[2] In this political treatise Montesquieu advocates constitutionalism and the separation of powers, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.^[2]

Constitutional theory

In his classification of kinds 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 "intermediate powers" (such as the nobility, the clergy, etc.) exist that can restrain the authority of the ruler: if so, the regime counts as a monarchy; if not, it counts as despotism.

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. For democratic republics (and to a somewhat lesser extent for aristocratic republics), this spring is the love of virtue -- the willingness to put the interests of the community ahead of private interests. For monarchies, the spring is the love of honor -- the desire to attain greater rank and privilege. Finally, for despotisms, the spring is the fear of the ruler. 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 Montesequieu'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:

• The separation of the powers of government.

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.

• The appropriate framing of civil and criminal laws so as to ensure personal security.

Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including: the right to a fair trial; the right to be considered innocent until proven guilty; and 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 opinion and association.

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 appear foolish 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

• Comparative law
• Democracy
• Letter and spirit of the law
• Rule of law
• Mutual Liberty

Notes

1. ^ http://books.google.com/books?id=4OYK1pBoeYUC
2. ^ ^{a b} Cohler, et al., "Introduction" to the 1989 Cambridge UP ed.

References

• de Secondat, Charles, Baron de Montesquieu. The Spirit of the Laws. 2 vols. Originally published anonymously. 1748; Crowder, Wark, and Payne, 1777. The Spirit of the Laws. Trans. Thomas Nugent (1750). Rev. J. V. Prichard. ("Based on a public domain edition published in 1914 by G. Bell & Sons, Ltd., London. Rendered into HTML and text by Jon Roland of The Constitution Society.") Accessed May 16, 2007.
• –––. Montesquieu: Spirit of the Laws. Eds. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge UP, 1989. ISBN 0521369746 (10). ISBN 978-0521369749 (13). (Paperback ed.; 808 pp.)
• Volume 1: http://books.google.com/books?id=5zZJAAAAMAAJ (Free)
• Volume 2: http://books.google.com/books?id=x9QtAAAAYAAJ (Free)