''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 heLaws'', is a

treatise A treatise is a Formality, formal and systematic written discourse on some subject concerned with investigating or exposing the main principles of the subject and its conclusions."mwod:treatise, Treatise." Merriam-Webster Online Dictionary. Acc ...

political theory Political philosophy studies the theoretical and conceptual foundations of politics. It examines the nature, scope, and legitimacy of political institutions, such as states. This field investigates different forms of government, ranging from d ...

, as well as a pioneering work in

comparative law Comparative law is the study of differences and similarities between the law and legal systems of different countries. More specifically, it involves the study of the different legal systems (or "families") in existence around the world, includ ...

Montesquieu Charles Louis de Secondat, baron de La Brède et de Montesquieu (18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher. He is the principal so ...

, 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 an English translation, many times revised and reprinted in countless editions. In 1751 the

Roman Catholic Church The Catholic Church (), also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.27 to 1.41 billion baptized Catholics Catholic Church by country, worldwid ...

added ''De l'esprit des lois'' to its ''

Index Librorum Prohibitorum The (English: ''Index of Forbidden Books'') was a changing list of publications deemed heretical or contrary to morality by the Sacred Congregation of the Index (a former dicastery of the Roman Curia); Catholics were forbidden to print or re ...

'' ("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 Catherine II. (born Princess Sophie of Anhalt-Zerbst; 2 May 172917 November 1796), most commonly known as Catherine the Great, was the reigning empress of Russia from 1762 to 1796. She came to power after overthrowing her husband, Peter I ...

, who produced '' Nakaz'' (''Instruction''); the

Founding Fathers The Founding Fathers of the United States, often simply referred to as the Founding Fathers or the Founders, were a group of late-18th-century American revolutionary leaders who united the Thirteen Colonies, oversaw the War of Independence ...

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, on March 4, 1789. Originally includi ...

; and

Alexis de Tocqueville Alexis Charles Henri Clérel, comte de Tocqueville (29 July 180516 April 1859), was a French Aristocracy (class), aristocrat, diplomat, political philosopher, and historian. He is best known for his works ''Democracy in America'' (appearing in t ...

, who applied Montesquieu's methods to a study of American society, in ''

Democracy in America (; published in two volumes, the first in 1835 via Gallica; via Gallica and the second in 1840) via Gallica; via Gallica is a classic French work by Alexis de Tocqueville. In the book, Tocqueville examines the democratic revolution that he be ...

''. British historian and politician 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 spent about ten years (and a life of thought) 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 The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

, the preservation of legality and

civil liberties Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties of ...

.Cohler, et al., "Introduction" to the 1989 Cambridge UP ed.

Structure

* Preface Part I * Book I: On law in general: * Book II: On laws which derive directly from the nature of the government -This book contained a great deal of information about popular sovereignty. * 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 law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

s, 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: On 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, based on the Latin phrase ''res publica'' ('public affair' or 'people's affair'), is a State (polity), state in which Power (social and political), political power rests with the public (people), typically through their Representat ...

an, 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 In political science, despotism () is a government, form of government in which a single entity rules with absolute Power (social and political), power. Normally, that entity is an individual, the despot (as in an autocracy), but societies whi ...

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 Aristocracy (; ) is a form of government that places power in the hands of a small, privileged ruling class, the aristocrats. Across Europe, the aristocracy exercised immense economic, political, and social influence. In Western Christian co ...

republics), this spring is ''the love of

virtue A virtue () is a trait of excellence, including traits that may be morality, moral, social, or intellectual. The cultivation and refinement of virtue is held to be the "good of humanity" and thus is Value (ethics), valued as an Telos, end purpos ...

''—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 form of Political organisation, political organization that can be observed, recognised or otherwise declared by a society or state (polity), state. It defines the process for making official gov ...

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 (Old Style and New Style dates, O.S.) – 28 October 1704 (Old Style and New Style dates, O.S.)) was an English philosopher and physician, widely regarded as one of the most influential of the Enlightenment thi ...

'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 ''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...

'' 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 (law), accused of any crime is considered innocent until proven guilt (law), guilty. Under the presumption of innocence, the legal burden of proof is thus on the Prosecut ...

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 is the ownership of a person as property, especially in regards to their labour. Slavery typically involves compulsory work, with the slave's location of work and residence dictated by the party that holds them in bondage. Enslavemen ...

and for the freedom of

thought In their most common sense, the terms thought and thinking refer to cognitive processes that can happen independently of sensory stimulation. Their most paradigmatic forms are judging, reasoning, concept formation, problem solving, and de ...

speech Speech is the use of the human voice as a medium for language. Spoken language combines vowel and consonant sounds to form units of meaning like words, which belong to a language's lexicon. There are many different intentional speech acts, suc ...

and assembly. 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 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.

Notes

Cohler, A. M., Miller, B. C., & Stone, H. S. (1989). Montesquieu: The spirit of the laws. Cambridge University Press.

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. *Montesquieu: ''The Spirit of Law'', trans. Philip Stewart, 2018. http://montesquieu.ens-lyon.fr/spip.php?rubrique186 *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.") Accessed May 16, 2007. *''A Montesquieu Dictionary'', Société Montesquieu, open access:

" *''Montesquieu: The Spirit of Law''. Trans. Philip Stewart, 2018. Open access:

. {{DEFAULTSORT:Spirit of Law, The 1748 non-fiction books Books in political philosophy Modern philosophical literature Works by Montesquieu Books about sovereignty Treatises Comparative law Works published anonymously Censored books Separation of powers Abolitionism