Montesquieu and the definition of the Free State
|Cours||History of Legal and Political Thought: The Foundations of Modern Legal and Political Thought 1500 - 1850|
- Machiavelli and the Italian Renaissance
- The era of the Reformation
- The birth of the modern concept of the state
- John Locke and the Civil Government Debate
- Montesquieu and the definition of the Free State
- Jean-Jacques Rousseau and the new social contract
- The Federalist and American political theory
- John Stuart Mill, Democracy and the Limits of the Liberal State
The definition of the state itself is no longer discussed, Hobbes' definition of the state is accepted, but the question of the best possible state and the constitutional guarantees that allow individuals not to be reached by the state is debated. In this way, the relationship between the state and individuals is reflected upon.
Montesquieu writes in the context of the France of the Ancien Régime, post-Louis XIV; Montesquieu's writings are marked by the problems that emerged in the French Enlightenment after the death of the monarch.
What debates irrigate the thinking of the French Enlightenment? There are three major debates from 1715 onwards:
- the first debate is of a political type: Louis XIV has died, the great philosophers like Voltaire, d'Alembert among others are wondering about the question of what is a legitimate government; they lived through absolute monarchy, the oppressive monarchy asking itself the question of how to rethink the monarchy so that it finds its legitimacy, so that it can be qualified as legitimate and so that it allows individuals to fully exercise their liberties. What is the best possible monarchy in France? What type of monarchy? What type of constitutional guarantees are necessary for individuals to exercise their individual freedoms? Classical political debate on freedom and legitimacy.
- The second debate that irrigates all the thinking of the French Enlightenment is the debate around religion, tolerance and above all around the place of the church in French society. The Jesuit order announced an expulsion, but this was only an epiphenomenon, since from 1720 onwards the weight of the church was contested in the name of freedom of thought, and religious debates raged, animated by the Jansenist tradition based on a very conservative vision of the role of the church and its relationship with God. France will experience a Jansenist quarrel at the heart of the church. It is a debate about religion and the place of tolerance in religious doctrines.
- the third debate is perhaps the most important debate for Montesquieu is the moral debate which really consists in questioning Man, the moral qualities of individuals, the moral qualities of governments, the virtue of moderns; it is a moral debate which also arose in France from the moralists of the 17th century on the role of honour, the role of virtue in social relations, it is also the question of human passions, is the human being endowed with reason or overwhelmed by his passions or needs. These are questions of moral philosophy.
Behind this debate on human nature, on morality and the morals necessary for the proper functioning of society, lies a very important question which is the question of trade.
From the middle of the 17th century onwards, Europe experienced a major economic boom with the development of the theories reflecting on trade, the role of the state in the economy and the role of legislation to set up and regulate the exchange of goods and services.
This reflection was of considerable importance in the 18th century: behind the reflection on trade lies a reflection on human passions.
- 1 Trade theory: reflection on human passions
- 2 Biography
- 3 Political regimes
- 4 The concept of moderation
- 5 Montesquieu, The Spirit of the Laws, 1748, Book XI, Book XII
- 6 Montesquieu, The Spirit of the Laws, 1748, Book XII, Laws that form political freedom in its relationship with the citizen, Chapter I - Idea of this book
- 7 Montesquieu, The Spirit of the Laws, 1748, Book XII, Of the laws that form political freedom in its relation to the citizen, Chapter II - On the freedom of the citizen
- 8 Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles which form the general spirit, morals and manners of a nation, Chapter IV - What the General Spirit is
- 9 Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles that form the general spirit, morals and manners of a nation, Chapter V - How careful one must be not to change the general spirit of a nation.
- 10 Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles that form the general spirit, morals and manners of a nation, Chapter XXVII - How laws can contribute to forming the morals, manners and character of a nation
- 11 Annexes
- 12 References
Trade theory: reflection on human passions[edit | edit source]
In Scotland, from 1760 - 1770, Hobbes said that Man is a being of passion, need, envy, fear, a being desirous of enriching himself, of increasing his well-being. For Hobbes, controlling human passions and needs was the role of the state, an authoritarian state allowed people to live together by the rules that are the law in order to bring order, it is a thought of social order.
The solution to human passions is a strong state called Leviathan. For Locke, men are beings of reason, but also animated by human passions that must be channelled. The 18th century resumed this debate on human passions.
The founders of political-economic thought in Scotland gave a new response, a response that was not one of contract or order, but of absolute freedom. The founder of political economy published The Wealth of Nations in 1776, Adam Smith: the solution to human passions is not a strong state, but on the contrary, human passions must be allowed to pursue their own interests in the name of private vice, public virtue.
This idea is the Scots' answer to the question of human passions: the whole of Scottish social theory responds by saying that we must let human passions do their work, let the market regulate itself because the whole community will benefit from it.
This debate also takes place in France, Montesquieu takes part in this debate: "trade softens morals". This theory of soft commerce, that commerce softens morals, we are not making war.
Smith's passion has a merit, the market doesn't solve everything, but the initial idea is quite brilliant, Smith didn't foresee the use of his theory. At first, Smith was not an economist, but a moral philosopher, he was interested in human nature, the human soul and human passions; his invention of the market was intended to answer a moral question.
This moral question was taken up by Montesquieu, notably in his 1748 work "De l'Esprit des Lois".
Biography[edit | edit source]
Charles-Louis de Secondat, Baron of La Brède and Montesquieu spent his schooling at the Juilly College and, after studying law, became an adviser to the Bordeaux Parliament in 1714. In 1715, he married Jeanne de Lartigue, a Protestant from a wealthy family of recent nobility.
In 1716, Montesquieu inherited the office of President of the Parliament of Bordeaux and the Barony of Montesquieu. In 1726, he sold his position as magistrate. In 1728, he was appointed to the French Academy. In the years that followed, he travelled throughout Europe, to Austria, Hungary, Italy, Germany, Holland and England, where he stayed for more than a year.
In Paris, Montesquieu frequented members of the Entresol club, such as the Marquis d'Argenson, Bolingbroke and the abbé́ of Saint-Pierre. There they passed on information to each other on matters of international politics, trade and finance. In 1748, after 20 years of work, he published De l'esprit des lois. He was criticised, attacked and notably condemned by the Sorbonne.
The work was put on the Index of the Church, but was nevertheless a resounding success. Montesquieu died on 10 February 1755.
Montesquieu also had parliamentary experience, making parliament in his thinking the cornerstone of his political philosophy: the fact that he held the office of President of the Bordeaux Parliament strengthened his philosophical stance on the role of parliament.
Political regimes[edit | edit source]
In 1734, Montesquieu published The Romans, he launched a very strong criticism of the Roman Empire by re-reading the History of Rome, criticising Rome as a de facto state of its time. In order to avoid European empires, he will criticise the Roman Empire.
It is an important work in the sense that Rome allows him to criticise the adventure and imperial experience of the European Empires.
His answer to Hobbes was very explicit in 1748. Published first anonymously in Geneva, it is "De l'Esprit des Lois", which is the bible of the philosophers and jurists of the 18th century. This work was to provoke virulent criticism.
With Montesquieu, the second great response to Thomas Hobbes takes place.
« The desire that Hobbes first gives men to subjugate each other is unreasonable. The idea of empire and domination is so composed, and depends on so many other ideas, that it would not be the one he would have at first.
Hobbes asks why, if men are not naturally in a state of war, they always go armed, and why they have keys to lock their houses. But we don't feel that we attribute to men before the establishment of societies what can only happen to them after this establishment, which makes them find reasons to attack and to defend themselves. »
For Montesquieu, Hobbes may be right, but it's not a problem of Man, it's because our societies are badly regulated; it's not a problem of human nature, Hobbes' theory is unreasonable.
From the Spirit of the Laws is divided into XXXI books, of which we will see books XI, XII and XIX.
Montesquieu seeks to answer Hobbes by analysing political regimes and proposing what he believes to be the best of political regimes because it is the regime that preserves the freedom of individuals. Montesquieu is dependent on the post-Louis XIV period, he wishes to restore and propose a political regime that guarantees individual liberties.
One of the founding and fundamental questions of the Spirit of Law is what is the modern state that guarantees individual liberties, or who sets up a state whether it is a republic or a monarchy that is a state with institutions that preserve and guarantee our fundamental liberties?
Very classically, Montesquieu begins by analysing, comparing and weighing political regimes as he sees and observes them; on the basis of this observation, he isolates from Book I to Book VIII, three typical ideals. Aristotle's division between monarchy and democracy are standard ideals that are no longer applicable. For Montesquieu there are three different types of political regimes, categories proposed by the ancients.
His new typology is as follows. Since we can gradually see what Montesquieu dislikes and draw his response to Hobbes which he saw with great concern his typology of the state :
- Republican regime divided between an aristocratic or democratic type of republican regime;
- Monarchical regime;
- Despotic regime.
For Montesquieu, all governments in the world can be reduced to these three categories. When he thinks of the democratic republic, he thinks of Athens and Sparta, which are for him republics of the democratic type; the republics of the aristocratic type are notably those of Venice; the monarchies refer to the English monarchy which is emerging as a model. The despotic regimes are almost all the others, especially the Chinese regime.
Montesquieu has the idea that it is not enough to divide political regimes, the principle of these regimes must be understood. It is the idea of understanding whether these typical ideals can be reduced to a founding principle that animates these regimes.
« After examining which laws are relevant to the nature of each government, one must look at the laws that are relevant to its principle.
There is this difference between the nature of government and its principle, that its nature is what makes it so, and its principle is what makes it act. One is its particular structure, and the other is the human passions that make it move. »
Any political regime can be reduced to a fundamental passion, and the question is: what is this fundamental passion? One cannot say that a state is a monarchy if one does not understand what animates it. The idea that every regime has a principle is a new idea:
- what animates republican regimes of the democratic type is the principle of virtue, in other words, a democratic republic loses its soul, cannot continue to exist if virtue is not the central principle of this democratic republic.
- the principle of the aristocratic republic is moderation, if an aristocratic republic is no longer based on moderation then it is diluted and destroyed.
- monarchies are founded on the principle of honour; a monarchy must be and is founded on the principle of honour.
- despotic rule is animated by the principle of fear; this is a response to Hobbes who claimed that the modern state is based on the Fearful Man.
By reclassifying political regimes and associating them into one principle, he tries to bury the vision of the state proposed by Hobbes.
Reading De l'Esprit des Lois, this typology of the three regimes evolves into a typology between two regimes. In other words, the initial typology that divides the republic, the monarchy and the despotic regime, this typology that distinguishes three forms of state will eventually revert to two.
Basically, this ternary typology can be reduced to a binary typology between free and despotic states: between moderate and despotic governments. Montesquieu tells us that when we look at political philosophy, they can be brought to a typology between free states and slave states.
At the beginning of the Spirit of Laws, Montesquieu tells us that it is possible to divide political regimes into three distinct categories, each animated by a principle: moderation is associated with republican regimes of the aristocratic type.
As the book is read, this ternary typology will be reduced to a binary typology between moderate and despotic governments. Moderate governments include monarchies and republics; Montesquieu makes the equation: moderation, freedom; "any free regime is a moderate regime".
From books VIII and XIX, he attributes moderation to any free regime. We have the choice in human society between moderate government and despotic government.
The concept of moderation[edit | edit source]
Montesquieu's concept of moderation, which is the equivalent of freedom, plays a very important role. The concept of moderation plays a crucial role since it is the criterion that defines free regimes. The concept of moderation plays a very important role since it is the criterion for free regimes that oppose Hobbes' despotic regimes.
Reading Montesquieu, one realises that moderation and moderate regimes can be defined in two ways:
- first of all, the concept of moderation designates a moral virtue that the rulers or the governed must possess. Moderation is the expression of the golden mean. It is a virtue for the citizen to be moderate in his assertions, a legislator must be moderate. For Montesquieu, when changing a law it is better to use the file and not the axe, he believes that the state is a complex and intricate mechanism that cannot be abruptly disrupted.
- Moderate regimes are regimes that guarantee the security of individuals and citizens; a moderate regime is a regime that evolves slowly, but it is also a regime in which the security of individuals is guaranteed and protected by institutional mechanisms, anachronistically one would say a state based on the rule of law, a government that enshrines a state based on the rule of law by ensuring individual freedoms.
In order to allow moderate regimes to exist and endure, action is needed at two levels:
- on the constitution of a state;
- acting on the laws of that same State.
An anti-despotic free state has a number of criteria in its constitution, including the separation of powers which guarantees the balance of power, a moderate regime is one which has a constitution which guarantees a number of fundamental freedoms, but also the laws must be moderate guaranteeing in the criminal order the principle of proportionality.
It is necessary to moderate the exercise of powers and laws in the principle of balance and equilibrium, Montesquieu is the Man of balance, a moderate regime enshrines a constitution and moderate sentences respecting the principle of proportionality.
This insistence on the moderation of criminal laws, on the need to moderate sentences and to have a code enshrining the principle of proportionality is understandable in the context in which Montesquieu writes. He had in his sights a disputed penal measure, which was the institution of letters of seal where the king had the power to decide to lock an individual up without trial. This was the quintessence of arbitrariness.
Action had to be taken at the level of the constitution and at the level of the laws in order to guarantee the freedom of individuals.
How does Montesquieu define freedom? He defines moderation and moderate regimes by emphasising two characteristics. Looking at Montesquieu's definition of free and despotic states one can reduce his argument to two fundamental propositions:
- defining freedom by law: freedom is the right to do whatever the law allows, a free regime is a regime that respects individual liberties to the extent of the law, it is a negative view of freedom.
- Subjective definition of freedom: political freedom in a citizen is that peace of mind that comes from the opinion that everyone has of his or her own safety. There is an objective and also a subjective dimension to everyone's freedom, which is the feeling of being free.
Every law has an objective dimension, what is written, and a subjective dimension, what it conveys as a feeling. A free state guarantees individual freedoms, but also gives us an elementary feeling of security.
Montesquieu, The Spirit of the Laws, 1748, Book XI, Book XII[edit | edit source]
Chapter I already shows the two dimensions of freedom.
« I make a distinction between the laws that form political freedom in its relation to the constitution and those that form it in its relation to the citizen. The former will be the subject of this book; I will deal with the latter in the following book. »
All moderate, therefore free states must express freedom objectively, the constitution, and subjectively, the laws.
In chapter II entitled Various meanings given to the word freedom, we see that Montesquieu studied his classics.
« There is no word that has received more different meanings, and that has struck people's minds in so many ways, than that of freedom. Some have taken it for the ease of deposing the one to whom they had given tyrannical power; others for the faculty of electing the one to whom they were to obey; others for the right to be armed and to be able to exercise violence; the latter for the privilege of being governed only by a man of their own nation, or by their own laws. Some people have long taken the liberty of wearing a long beard. They have attached this name to one form of government and excluded others. Those who had tasted republican government put it in that government; those who had enjoyed monarchical government put it in the monarchy. And as in a republic one does not always have before one's eyes, and in such a present manner, the instruments of the evils of which one complains, and that even the laws seem to speak more, and the executors of the law less, one usually places it in the republics, and it has been excluded from the monarchies. Finally, since in democracies the people seem to do more or less what they want, they have put freedom in these kinds of governments, and they have confused the power of the people with the freedom of the people. »
Montesquieu is aware that there are a multitude of possible regimes and that everyone believes that his is the one that best guarantees individual freedoms.
For Montesquieu, there is a mistake: in order to protect individual freedom and allow states to prosper, a number of conditions are needed :
« Democracy and aristocracy are not free states by nature. Political freedom is found only in moderate governments. But it is not always in moderate states. »
- States must have a free constitution: the state referred to here is England referring to Chapter VI entitled Of the Constitution of England. A moderate state is a state that has a constitution with the characteristic of the separation of powers. By analysing the English regime and constitution, Montesquieu aims to show us that if this constitution aims to protect individual freedoms, it is because it includes the separation of powers and the participation of several organs of the state. Montesquieu has a very sociological conception of power, he is constantly saying that dividing powers is necessary but not sufficient, the components of society must be represented. There are hints of this as early as the Roman constitution and the mixed constitution. It is marked by the idea that we owe the Romans, power is one thing, but it must be representative of society with the representation of the population and the aristocracy; the English constitution combines the representation of powers, but also the representation of social forces, it is the principle of checks and balances. The separation of powers is one step: there must be checks and balances.
- The constitution in England enshrines the principle of political representation: "Since in a free state every man who is supposed to have a free soul must be governed by himself, the people in body should have the power of law. But as this is impossible in large States, and is subject to many disadvantages in small ones, the people must do through their representatives all that they cannot do by themselves". In large states the people still cannot come together, the argument that participation in public affairs is only possible for all of us in small states is an argument of Montesquieu. The idea that we should all be participants in public affairs is not possible in large states, so the principle is that of political representation to allow the popular voice to speak, but as they cannot come together, they have to delegate their power to representatives.
The idea that the representative regime is the characteristic of large states, that large states can only be representative regimes in order to function is an idea of Montesquieu's that will be taken up by constitutionalists.
« If the executing power has no right to stop the enterprises of the legislature, the legislature will be despotic; for, since it will be able to give itself all the power it can imagine, it will annihilate all other powers.
But the legislative power must not have the reciprocal power to stop the executing power. For, since execution has its limits by its nature, it is useless to limit it; besides the fact that the executing power is always exercised over momentary things. And the power of the tribunals of Rome was vicious, in that it stopped not only legislation, but even execution, which caused great evil.
The executing power, as we have said, must take part in the legislation through its power to prevent; otherwise it will soon be stripped of its prerogatives. But if the legislative power takes part in execution, the executing power will also be lost.
So this is the basic constitution of the government we are talking about. The legislature is composed of two parts, one of which will link the other by its mutual power to prevent. Both will be bound by the executing power, which in turn will be bound by the legislature.
These three powers should form a rest or inaction. But since, by the necessary movement of things, they are forced to go, they will be forced to go together. »
When Montesquieu describes the moderate regime, he makes a remark :
« As all human things have an end, the state we are talking about will lose its freedom, it will perish. Rome, Lacedemonia and Carthage have perished indeed. It will perish when the legislative power is more corrupt than the executor. »
It is a statement of powerlessness, it is possible to propose a regime conducive to individual freedoms, but it is only a fragile model since any state will perish.
Book XI is devoted to the model constitution, to the model ideal of the constitution of the modern state found in England. Montesquieu proposes a vision of an idealised England, but above all he rejects the Roman model.
When you read chapter XI, there is the message about the ideal constitution which is the English model, but Montesquieu also says "Rome I loved, Rome no longer has a model for the modern". In 1748, he considered the Roman model to be a very beautiful model, but it was no longer applicable in the 18th century. A man will assert that Rome is not dead, is useful and can serve as a model, it is Rousseau.
Book XI is the implicit adoption or rejection of the Roman model since several chapters bear titles criticising the conception of politics and governing, in chapter VIII entitled Why the ancients did not have a very clear idea of the monarchy, chapter IX entitled Aristotle's Manner of Thinking, chapter X entitled Manner of Thinking of Other Policies, chapter XI entitled Of the Kings of the Heroic Times among the Greeks, chapter XII entitled Of the Government of the Kings of Rome and How the Three Powers were Distributed, chapter XIII entitled General Reflections on the State of Rome after the Expulsion of the Kings.
All these titles show that Rome did not know the division of powers in the sense that Montesquieu understood it; Rome did not know the division of powers as it should. There is a criticism of the Roman model as a model that is certainly beautiful, fascinating, fascinating, but which is no longer imitable.
The model of the future is the English model, which concerns the rule of law and the feeling one has of its security; the English model as Montesquieu sees it and understands it is a model that enshrines the objective dimension with the rule of law and the subjective dimension of the perception one has of its security.
Montesquieu, The Spirit of the Laws, 1748, Book XII, Laws that form political freedom in its relationship with the citizen, Chapter I - Idea of this book[edit | edit source]
« It is not enough to have dealt with political freedom in its relationship with the constitution; it must be seen in its relationship with the citizen.
I have said that in the first case it is formed by a certain distribution of the three powers, but in the second case it must be considered under a different idea. It consists in security, or in the opinion one has of one's security.
It may happen that the constitution will be free, and that the citizen will not be free. The citizen may be free, and the constitution may not be free. In such cases, the constitution will be free de jure, not de facto; the citizen will be free de facto, not de jure.
It is only the provision of laws, and even of fundamental laws, that forms freedom in relation to the constitution. But, in the relationship with the citizen, morals, manners and examples received may give rise to it, and certain civil laws may favour it, as we shall see in this book. »
It is the fundamental laws that allow the rule of law to exist. The subjective dimension of freedom is just as important as what is written, the whole art is to fit the two things together, i.e. to avoid that the written text does not correspond or does not correspond at all to reality.
Today, there are political and economic practices that are no longer acceptable even if the law has not changed because there is undoubtedly a gap between law and practice and the implementation of that law; Montesquieu wants to denounce this gap, there is no point in having a beautiful law if in reality that law is not applicable, badly applied or applied only for some.
If the two are extremely separate, then there is a danger of revolts, violent reactions and the will to overthrow and brutally change things. Montesquieu had the intuition that there are two dimensions: what is written and what is put into practice. If Machiavelli thought that one could play with both, Montesquieu thought that one could not play with both and could not be separated too far apart.
What civil laws make one feel safe? What is the principle to be applied so that citizens feel free and safe?
Criminal laws in a legal order must respect the principle of fairness and proportionality; these are principles that constitute the rule of law and they are principles that will allow people to feel safe.
Montesquieu, The Spirit of the Laws, 1748, Book XII, Of the laws that form political freedom in its relation to the citizen, Chapter II - On the freedom of the citizen[edit | edit source]
« Philosophical freedom consists in the exercise of one's will, or at least (if one must speak in all systems) in the opinion that one is exercising one's will. Political freedom consists in safety, or at least in the opinion one has of one's safety.
This security is never more under attack than in public or private accusations. It is therefore on the goodness of the criminal laws that the freedom of the citizen mainly depends. »
When a penal code is inappropriate to the context and does not apply the principle of fairness and proportionality then there is the beginning of despotism, one loses a sense of one's own safety by losing that safety.
Chapter IV is entitled That freedom is promoted by the nature of the sentences and their proportion, attention should be drawn to the order of the crimes cited. Traditionally in Montesquieu's time, the most important crime was put first, the crime of safety was the most important and Montesquieu put it last, crimes that offend religion and morals are the crimes to which the most attention should be paid.
This small downgrading of crimes against the safety of citizens shows very well what he was aiming at, namely the letters of seal which is the royal power to lock up anyone. The crime against the security of the state was something that Montesquieu really rejected, because in the name of the security of the state anything can be done.
Fundamentally, this dimension of proportionality is the principle and the keystone that must guide any legal order; it is the price to be paid for feeling free, for having a sense of security and thus allowing the rule of law to live and endure.
Montesquieu has a very broad and deep conception of political freedom and more precisely what a state governed by the rule of law is. In Book XI, he set out the formal dimension of a state governed by the rule of law, explaining that a self-respecting state governed by the rule of law is one that enshrines the separation of powers and certain constitutional guarantees.
In Book XII he shows that the legal order must be based on proportionality and moderation. There is a third dimension that must be taken into consideration when trying to design the modern state, the rule of law, which is the general spirit of a nation, which is the meaning of Book XIX.
Books XI, XII and XIX of the Spirit must be read and understood together.
Book XIX brings an essential element, the constitution cannot be applied from above to all states because each state has its own history, customs and ways, because each state has a general spirit.
His definition of the modern and model state is broad enough to be adaptable to different situations; Montesquieu's ambition is never to have a perfectly applicable definition of the state.
He is perfectly aware that the model he proposes is fragile and must be adapted to each nation; there is no point in applying a single model to all. Montesquieu is not only a theorist of the modern state, but also a theorist of pluralism; he defends pluralisms of possibility in the implementation of its founding principles.
Each nation has a general spirit, the general spirit is a state of mind, a kind of psychological disposition. It is also a faculty is a talent, a possibility for individuals to live together relating to morals, customs, manners.
In Montesquieu's mind, the same law cannot be applied in the same way, cannot even be understood in the same way. Each country has its laws which are closely linked to the morals of that same nation forming the general spirit of a nation.
Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles which form the general spirit, morals and manners of a nation, Chapter IV - What the General Spirit is[edit | edit source]
« There are four kinds of crimes: the first kind offend religion; the second kind offend morals; the third kind offend tranquility; the fourth kind offend the safety of citizens. The penalties imposed must derive from the nature of each of these species. »
Montesquieu advised us to apply his ideal model with great skill and caution.
Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles that form the general spirit, morals and manners of a nation, Chapter V - How careful one must be not to change the general spirit of a nation.[edit | edit source]
« If there were a nation in the world which had a sociable mood, an open heart, a joy in life, a taste for life, a facility for communicating its thoughts; which was lively, pleasant, cheerful, sometimes imprudent, often indiscreet; and which had courage, generosity, frankness, a certain point of honour, one should not seek to hinder its manners by laws, so as not to hinder its virtues. If in general character is good, what does it matter that there are some defects in it?
It is for the legislator to follow the spirit of the nation, when it is not contrary to the principles of government; for we do nothing better than what we do freely, and following our natural genius. »
For Montesquieu, each nation has its own genius; the rule of law model must be handled with care.
Montesquieu, The Spirit of Laws, 1748, Book XIX, Laws in their relation to the principles that form the general spirit, morals and manners of a nation, Chapter XXVII - How laws can contribute to forming the morals, manners and character of a nation[edit | edit source]
Chis precaution is applied in Chapter XXVII of Book XIX, when, after having set out the conditions and characteristics of the rule of law, he takes up the model he had set out in Book XI.
It speaks in a certain way, of a kind of standard ideal that seems not to exist. What is disturbing is that he refers to England without talking about it, but departs from it. Montesquieu basically proposes to continue the reflections of Books XI and XII, but to offer a more precise reading of them; in Chapter XXVII he describes not only the rule of law, but the modern state.
What does Montesquieu consider a modern state to be? His aim is to give us the characteristics of the modern rule of law that corresponds to the state of the modern? What should a state be formed of? Which one do we seek to live in?
Montesquieu comes to the conclusion that the modern state is a state that comprises three principles, some of which are found in England, but not all of which are present in the United Kingdom. In other words, he comes to the conclusion that England is certainly a singular model, but one that is unclassifiable, but above all inimitable.
The modern rule of law must resemble England, but not imitate it, because England has a number of shortcomings; there are three principles:
- The modern rule of law is a restless nation: a nation in which political parties can play their part.
- The modern nation or rule of law is a trading nation: what is characteristic of the moderns is their ability to trade; the model proposed by the Romans is now only topical because it no longer allowed trade to be developed, or not enough.
- The modern nation is a nation that distinguishes manners from morals: manners are a matter of civility, morals are a matter of custom and in particular the custom of laws that we saw in the Romans and Greeks. In a certain way, morals reflect the spirit of the nation, which must be thought, reflected and reformed.
« I have spoken to them of a free people; I have given them the principles of their constitution: let us see the effects that must have followed, the character that may have been formed, and the ways in which it has been formed.
I do not say that the climate has not produced, to a great extent, the laws, morals and manners of this nation; but I say that the morals and manners of this nation should have a great relationship with its laws. »
In a way this chapter XXVII is a description of England to warn us, the English model is nevertheless fragile, we must try to take what is good in it, but we must not simply take over this model.
« This nation, which peace and freedom would make easy, free from destructive prejudices, would be inclined to become a merchant. If it had one of those primitive goods which serve to make those things which the hand of the worker gives a great price, it could make establishments suitable for procuring the enjoyment of this gift from heaven in all its extent.
A trading nation has a prodigious number of small vested interests; it can therefore shock and be shocked in an infinite number of ways. It would become sovereignly jealous; and it would grieve more for the prosperity of others than for its own. »
For Montesquieu, people should be allowed to trade in the name of the famous adage: "trade softens morals".
This unnamed English model is inimitable and fragile.
« It could be that this nation, having once been subjected to arbitrary power, would on several occasions have retained its style; so that, on the substance of a free government, one would often see the form of an absolute government. »
The English model might not be as free as we would like to see; it is an interesting model, but one that should be approached with great caution.
It is somewhere a strange model; England is a strange inimitable model, it is a republic disguised as a monarchy; England is the model of the modern, but a fragile model, difficult to imitate because it is a model disguised as a monarchy, it is an inimitable model.
For Montesquieu, the state that Hobbes dreamed of was not the state of the moderns and a state that defended trade, it was a trading nation.
Annexes[edit | edit source]
- "Encyclopédie Larousse En Ligne - Charles De Secondat Baron De La Brède Et De Montesquieu." Encyclopédie Larousse En Ligne - Charles De Secondat Baron De La Brède Et De Montesquieu. N.p., n.d. Web. 31 July 2014. <http://www.larousse.fr/encyclopedie/personnage/Montesquieu/133812>.
- "Charles De SECONDAT, Baron De MONTESQUIEU Élu En 1728 Au Fauteuil 2." Charles De SECONDAT, Baron De MONTESQUIEU. N.p., n.d. Web. 31 July 2014. <http://www.academie-francaise.fr/les-immortels/charles-de-secondat-baron-de-montesquieu?fauteuil=2&election=05-01-1728>.
- Site Montesquieu et Site de la Société Montesquieu (projet de l'École normale supérieure de Lyon - (ENS de Lyon))
- Dictionnaire électronique Montesquieu (projet de l'École normale supérieure de Lyon)
- Lire Montesquieu: Les enjeux d'une édition (projet de l'École normale supérieure de Lyon et de l'Université ouverte des Humanités - site consacré à l'édition critique)
- Sen, A. (2010). Adam Smith and the contemporary world. Erasmus Journal for Philosophy and Economics, 3(1), 50. https://doi.org/10.23941/ejpe.v3i1.39
- Cours :
References[edit | edit source]
- Alexis Keller - Wikipedia
- Alexis Keller - Faculté de droit - UNIGE
- Alexis Keller | International Center for Transitional Justice
- Lyon-Caen, N. (2016). Jésuites ou jansénistes ? Archives de Sciences Sociales Des Religions, 175, 25–46. https://doi.org/10.4000/assr.27889
- Dedieu, J. (1928). L’agonie du jansénisme (1715-1790). Revue d’histoire de l’Église de France, 14(63), 161–214. https://doi.org/10.3406/rhef.1928.2467
- Jesuites.com. “La Querelle Entre Jansénistes Et Jésuites.” Jésuites, 8 Jan. 2018, https://www.jesuites.com/la-querelle-janseniste/.