The Spirit of the Laws

From Wikipedia, the free encyclopedia

The Spirit of the Laws (French: De l'esprit des lois) is a book on political theory by Charles de Secondat, Baron de Montesquieu, published in 1748. It was originally published anonymously, partly because Montesquieu's works were subject to censorship; in 1751 De l'esprit des lois was added to the Index. The book was extremely influential, notably on Catherine the Great in her Nakaz and the framers of the United States Constitution. Its influence outside of France was aided by its rapid translation into other languages -- Thomas Nugent published an English translation in 1750.

De l'esprit des lois ranges widely over many topics of politics, law, sociology, and anthropology; Montesquieu spent nearly twenty years researching and writing the lengthy treatise, which contains more than 3,000 citations^[1]. In it he 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.

1 Constitutional Theory
2 Liberty and the Separation of Powers
3 Climate, Culture, and Society
4 See also
5 References
6 External link

[edit] Constitutional Theory

Montesquieu broadly distinguishes between three sorts of political system: republican, monarchical, and despotic. Republican political systems, in turn, 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 a despotism.

Underlying each type of political system, according to Montesquieu, must be what he calls a "principle" that 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 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 love of honor -- the desire to attain greater rank and privilege. Finally, for despotisms, the spring is fear of the ruler. A political system cannot last if its appropriate principle is lacking. For example, Montesquieu claims, the English failed to establish a republic after the Civil War (1642–1651) because the society lacked the requisite love of virtue.

[edit] 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. By political liberty, Montesquieu roughly means personal security, or "the tranquility of mind arising from the opinion that each person has of his safety" (XI.6.3), especially insofar as this is provided for through a system of dependable and moderate laws. He distinguishes this view of 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 equivalent. 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 geniune 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. First, it requires a 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. 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 second requirement is that the civil and criminal laws be appropriately framed so as to ensure personal security. Here he has in mind what we might call robust procedural due process rights— the right to a fair trial, the right to be considered innocent until proven guilty, and proportionality in the severity of punishment. In this connection, Montesquieu also argues against slavery, and for the freedom of opinion and association.

[edit] Climate, Culture, and Society

The third major contribution of De l'esprit des lois was to the field of political sociology, which he 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 a good deal more subtle than this, it is certainly the case that many of his specific claims appear foolish in hindsight. Nevertheless, his approach to politics from a naturalistic or scientific point of view proved very influential, directly or indirectly inspiring fields of political science, sociology, and anthropology. Among many others, Alexis de Tocqueville in particular was strongly influenced by Montesquieu— Democracy in America in many ways represents an attempt by Tocqueville to apply Montesquieu's methods in a study of American society.