''The Spirit of Law'' (French: ''De l'esprit des lois'', originally spelled ''De l'esprit des loix''
), also known in English as ''The Spirit of the Laws'', is a
treatise
A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject and its conclusions."Treat ...
on
political theory
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships between them. Its topics include politics, l ...
, as well as a pioneering work in
comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
, published in 1748. Originally published anonymously, as was the norm, its influence outside France was aided by its rapid translation into other languages. In 1750
Thomas Nugent published the first English translation. In 1751 the
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
added ''De l'esprit des lois'' to its ''
Index Librorum Prohibitorum
The ''Index Librorum Prohibitorum'' ("List of Prohibited Books") was a list of publications deemed heretical or contrary to morality by the Sacred Congregation of the Index (a former Dicastery of the Roman Curia), and Catholics were forbidden ...
'' ("List of Prohibited Books").
Montesquieu's treatise, already widely disseminated, had an enormous influence on the work of many others, most notably:
Catherine the Great
, en, Catherine Alexeievna Romanova, link=yes
, house =
, father = Christian August, Prince of Anhalt-Zerbst
, mother = Joanna Elisabeth of Holstein-Gottorp
, birth_date =
, birth_name = Princess Sophie of Anhal ...
, who produced ''
Nakaz
''Nakaz'', or Instruction, of Catherine the Great (russian: Наказ Екатерины II Комиссии о составлении проекта нового Уложения, transliteration: ''Nakaz Jekateriny II Komissiji o sostavleniji ...
'' (''Instruction''); the
Founding Fathers
The following list of national founding figures is a record, by country, of people who were credited with establishing a state. National founders are typically those who played an influential role in setting up the systems of governance, (i.e. ...
of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
; and
Alexis de Tocqueville
Alexis Charles Henri Clérel, comte de Tocqueville (; 29 July 180516 April 1859), colloquially known as Tocqueville (), was a French aristocrat, diplomat, political scientist, political philosopher and historian. He is best known for his works ...
, who applied Montesquieu's methods to a study of American society, in ''
Democracy in America
(; published in two volumes, the first in 1835 and the second in 1840) is a classic French text by Alexis de Tocqueville. Its title literally translates to ''On Democracy in America'', but official English translations are usually simply entitl ...
''.
Macaulay referenced Montesquieu's continuing importance when he wrote in his 1827 essay entitled "Machiavelli" that "Montesquieu enjoys, perhaps, a wider celebrity than any political writer of modern Europe
Montesquieu said he spent twenty years researching and writing ''De l'esprit des lois'', covering a huge range of topics including law, social life and the study of anthropology. In this treatise Montesquieu argues that political institutions need, for their success, to reflect the social and geographical aspects of the particular community. He pleads for a
Constitution, constitutional system of government with
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, the preservation of legality and civil liberties, and the
end of slavery.
[Cohler, et al., "Introduction" to the 1989 Cambridge UP ed.]
Structure
* Preface
Part I
* Book I: On law in general areas
* Book II: On laws which derive directly from the nature of the government
* Book III: On the principles of the three governments
* Book IV: That laws on education must relate to the principles of the government
* Book V: That the laws made by the legislator must be relative to the principle of the government
* Book VI: Consequences of the principles of the various governments with respect to the simplicity of the civil and criminal laws, the form of judgments, and the establishment of punishments
* Book VII: Consequences of the different principles of the three governments with respect to sumptuary laws, to luxury, and to the condition of women
* Book VIII: On the corruption of the principles of the three governments
Part II
* Book IX: On the laws in their relations to the defensive force
* Book X: On the laws in their relation to offensive strength
* Book XI: On the laws that constitute political freedom in their relation to the constitution
* Book XII: On laws that constitute political liberty in its relation to the citizen
* Book XIII: On the relations which the levying of tributes and the magnitude of public revenues have with liberty
Part III
* Book XIV: On the laws in their relation to the nature of the climate
* Book XV: How the laws of civil slavery relate to the nature of the climate
* Book XVI: How the laws of domestic slavery relate to the nature of the climate
* Book XVII: How the laws of political servitude are related to the nature of the climate
* Book XVIII: On laws in their relationship to the nature of the terrain
* Book XIX: On the laws in the relation they have to the principles that constitute the general spirit, the ways, and the manners of a nation
Part IV
* Book XX: On laws in their relationship with commerce, considered in its nature and its distinctions
* Book XXI: On laws in the relation they have to commerce, considered in the transformations it has seen in the world
* Book XXII: On the laws in their relation to the use of money
* Book XXIII: Of laws in their relation to the number of inhabitants
Part V
* Book XXIV: On laws in their relation with religion, considered in its doctrines and in itself
* Book XXV: On laws in their relation with the establishment of religion and its external policy
* Book XXVI: On laws in the relation they must have with the order of things on which they bear
Part VI
* Book XXVII: On the origin and transformations of the Roman laws on successions
* Book XXVIII: On the origin and transformations of the civil laws among the French
* Book XXIX: On the manner of composing laws
* Book XXX: Theory of feudal laws among the Franks, in the relation they have to the establishment of the monarchy
* Book XXXI: Theory of feudal laws among the Franks, in their relation to the transformations in their monarchy
Constitutional theory
In his classification of political systems, Montesquieu defines three main kinds:
republic
A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
an,
monarchical
A monarchy is a form of government in which a person, the monarch, is head of state for life or until abdication. The political legitimacy and authority of the monarch may vary from restricted and largely symbolic (constitutional monarchy), ...
, and
despotic
Despotism ( el, Δεσποτισμός, ''despotismós'') is a form of government in which a single entity rules with absolute power. Normally, that entity is an individual, the despot; but (as in an autocracy) societies which limit respect an ...
. 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
Despotism ( el, Δεσποτισμός, ''despotismós'') is a form of government in which a single entity rules with absolute power. Normally, that entity is an individual, the despot; but (as in an autocracy) societies which limit respect and ...
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 behavior 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.
* 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''—the fear of consequences to authority.
A
political system
In political science, a political system means the type of political organization that can be recognized, observed or otherwise declared by a state.
It defines the process for making official government decisions. It usually comprizes the govern ...
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 ''The Spirit of Law'' 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 in so far as this is provided for through a system of dependable and moderate laws. He distinguishes this view of liberty from two other 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 maintains, but 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
John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
's ''
Second Treatise of Government
''Two Treatises of Government'' (or ''Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True Original, ...
'', 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
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' is an example of a check that the judicial 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
A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
, the
presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present com ...
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
Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
and for the freedom of
thought
In their most common sense, the terms thought and thinking refer to conscious cognitive processes that can happen independently of sensory stimulation. Their most paradigmatic forms are judging, reasoning, concept formation, problem solving, a ...
,
speech
Speech is a human vocal communication using language. Each language uses Phonetics, phonetic combinations of vowel and consonant sounds that form the sound of its words (that is, all English words sound different from all French words, even if ...
and
assembly
Assembly may refer to:
Organisations and meetings
* Deliberative assembly, a gathering of members who use parliamentary procedure for making decisions
* General assembly, an official meeting of the members of an organization or of their representa ...
.
This book mainly concerns explicit laws, but also pays considerable attention to cultural norms that may support the same goals. "Montesquieu believed the hard architecture of political institutions might be enough to constrain overreaching power — that constitutional design was not unlike an engineering problem," as Levitsky and Ziblatt put it.
Political sociology
The third major contribution of ''The Spirit of Law'' was to the field of
political sociology
Political sociology is an interdisciplinary field of study concerned with exploring how governance and society interact and influence one another at the micro to macro levels of analysis. Interested in the social causes and consequences of how ...
, 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
A caricature is a rendered image showing the features of its subject in a simplified or exaggerated way through sketching, pencil strokes, or other artistic drawings (compare to: cartoon). Caricatures can be either insulting or complimentary, ...
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 ''The Spirit of Law'' 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
*
Comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
*
Democracy
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
*
Doux commerce
Doux commerce (lit. ''gentle commerce'' or ''soft commerce'') is a concept originating from the Age of Enlightenment stating that commerce tends to civilize people, making them less likely to resort to violent or irrational behaviors. This theory ...
*
Letter and spirit of the law
The letter of the law and the spirit of the law are two possible ways to regard rules, or laws. To obey the letter of the law is to follow the literal reading of the words of the law, whereas following the spirit of the law means enacting the ...
*
Rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
*
Mutual Liberty
Mutual liberty is an idea first developed by Alexis de Tocqueville in his 1835 work ''Democracy in America''. In effect, Tocqueville was referring to the general nature of United States, American society during the 19th century. It appeared to h ...
Notes
References
*Montesquieu, ''L'esprit des loix''. Texte établi et présenté par Jean Brethe de La Gressaye (Paris: Societe Les Belles Lettres, 1950–1961. Takes account of variants in all editions issued between 1748 and 1757.
*''Montesquieu: The Spirit of the Laws'', trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge Texts in the History of Political Thought. Cambridge:
Cambridge UP, 1989. (Paperback ed.; 808 pp.)
*Bok, Hilary,
Baron de Montesquieu, Charles-Louis de Secondat, Stanford Encyclopedia of Philosophy.
*Volpilhac-Auger, Catherine, ''Montesquieu'', Paris: Gallimard, "Folio Biographies", 2017.
External links
*
de Secondat, Charles, Baron de Montesquieu,
The Spirit of Laws (Free – The Internet Archive, High Resolution)
*
de Secondat, Charles, Baron de Montesquieu,
The Spirit of Laws: Volume 1 , 1793 (Free – Librivox, Audiobook)
*
de Secondat, Charles, Baron de Montesquieu,
The Spirit of Laws 2 vols. Originally published anonymously. 1748; Crowder, Wark, and Payne, 1777. 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
The Constitution Society is an independent, non-party educational trust based in Westminster, London. It was established in 2009 to promote public understanding of the British Constitution
The constitution of the United Kingdom or British ...
.") Accessed May 16, 2007.
*''A Montesquieu Dictionary'', open access:
*''Montesquieu: The Spirit of Law''. Trans. Philip Stewart, 2018. Open access:
.
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1748 books
Books in political philosophy
Modern philosophical literature
Montesquieu
Books about sovereignty