MONTESQUIEU, NATURAL LAW, and NATURAL RIGHT
Paul A. Rahe, Hillsdale College
Was Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an exponent of natural law, natural right, or neither? Some have asserted—Jean-Jacques Rousseau, for one—that the author of The Spirit of Laws had nothing to say on the subject. Others, such as David Hume, have suspected that he was a rationalist on the model of Descartes’s great Augustinian admirer Nicolas Malebranche. And there are those who have argued that he operates within the peculiarly modern natural-right framework invented by Thomas Hobbes and refined by John Locke.
It is not difficult to see why there should be confusion and disagreement. The Spirit of Laws is immense and exceedingly complex. Like Montesquieu’s epistolary novel, Persian Letters, moreover, it is a literary work—subtle, playful, elliptical—aimed, as its author once remarked, more at making his readers think than at inducing them to read. When critics, such as the abbé Joseph de La Porte, characterized the work as self-contradictory, disordered, and hopelessly obscure, Montesquieu, after privately displaying pique, took the trouble to sketch out for his own satisfaction a response specifying in detail the manner in which a work such as his should be studied. “When one reads a book,” he insisted,
it is necessary that one be disposed to believe that the author has seen the contradictions which, at first glance, one imagines that one encounters therein. In this fashion, it is necessary that one begin by distrusting rash judgments, that one take up again the passages which one asserts to be self-contradictory, that one compare them with one another, that one compare them again with those preceding and those following—all in order to see whether they derive from the same hypothesis, whether the contradiction is in the things or only in one’s own particular manner of conceiving them. When one has done all of this properly, one can pronounce as a master, “There is a contradiction.”
This is not always, however, everything that one must do. When a work is systematic, one must make sure that one has fully seized hold of the system in its entirety. Consider a great machine made to produce an effect. You see wheels turn in directions opposed; you believe at first glance that the machine is going to destroy itself, that the assemblage of wheels is going to get in its own way, that the machine is going to bring itself to a halt. It goes on forever: these separate parts, which appear at first to destroy themselves, unite together for the object proposed.
To this set of considerations, we must add the fact that Montesquieu had to write with the censor in mind, that indirection was sometimes on his part required, that in some measure he had to conceal his design. Given the influence exercized by the Roman Catholic Church, he had to be especially careful to remain within the confines of orthodoxy in his treatment of matters metaphysical.
When Rousseau argued that Montesquieu had deliberately avoided articulating “principles of political right” and had “contented himself with treating positive right under established governments,” he was taking at face value Montesquieu’s politic denial that he had written “to censure that which is established in any country at all” and his no less politic asssertion that, within his book, “each nation will find here the reasons for its maxims,” and he was ignoring Montesquieu’s fierce polemic against prejudice, his open hostility to despotism, and his readiness to criticize not only particular institutions and practices but forms of government as well. When Hume took Montesquieu to task for the metaphysical claims advanced in the initial chapter of the first book of The Spirit of Laws, he failed to ask whether these could be made to jibe with its author’s treatment of the state of nature and of the emergence of political society in the two chapters immediately following.
When, in his first chapter, Montesquieu remarks that “to say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that, before a circle was drawn, all its radii were not equal,” he seems to be suggesting that natural law is a deductive science. When, in the subsequent two chapters, he describes the stages by which a solitary being is drawn by his passions first into society, then (and only then) into intestine war, and thereafter into the institution of a state equipped with a system of political and civil right, into wars between states, and into the development of a ius gentium, he is sketching a hypothetical history meant to illuminate the logic underlying human experience. In the first of these three chapters, Montesquieu accommodates the censor; in the second and third, he adopts Hobbes’s premises and turns them against his conclusions, offering an account of natural right meant as a corrective to Locke as well. If Montesquieu was, as is sometimes supposed, a natural law theorist of a traditional sort, there is little sign of it after the first chapter of The Spirit of Laws. The evaluative stance that he adopts throughout the remainder of that work dovetails nicely with the variation on the Hobbesian position that he outlines in its second and third chapters.
Montesquieu distinguishes himself from Hobbes in a manner that was destined to become commonplace in the course of the eighteenth century. Like the author of Leviathan, he took man to be a passionate animal endowed with but not in a straightforward fashion governed by reason, and, like him, he had a healthy respect for the role that came to be played in human affairs by fear. But he did not regard fear as the only passion to be reckoned on. Nor did he did think it primordial. There are “laws of nature” rooted in “the constitution of our being,” he asserted; and, as Hobbes had suggested, “to know them well, one must consider” the situation of the individual “before the establishment of societies. The laws of nature are those which he would receive in such a state.” But, he insists, such a man would not be instinctively aggressive, as Hobbes contended. In the beginning, he would not be sufficiently knowledgeable and speculative to be able to imagine establishing his own dominion. Instead, he would be acutely sensitive to his own weakness, timid, and instinctively inclined to keep the peace and seek nourishment, which would be for him natural laws. He would also be sociable—drawn to his own kind initially by an awareness of reciprocal fear, by “the pleasure that an animal feels at the approach of an animal of its own kind,” and by “the charm that the two sexes inspire in one another by their difference”—and “the natural appeal” that human beings make to one another would constitute for him a third law. The knowledge attained in the course of human interaction would constitute yet another bond, “and the desire to live in society” would be for primitive man “a fourth natural law.” Of course, Montesquieu was perfectly prepared to acknowledge that, in time, men would contract a desire “to subjugate one another,” but he insisted that this would not happen until societies had been established and men had begun to speculate, and this desire would initially be restrained by mores of the sort that constitute political and civil right among hunter-gatherers and nomads, which would quickly develop in response to the danger posed. As Montesquieu later makes clear, organized political society—and despotism—come much later and tend to be coeval with the discovery of agriculture, the institution of property in land, and the invention of coinage.
The overall point that Montesquieu seeks to make by way of this hypothetical history is that nature does, indeed, have a teaching for man, but that this teaching is as complex as the skein of human passions, that its practical dictates differ from one situation to another, and that, in politics, there is no one passion to be reckoned on, no single, all-encompassing imperative to be fulfilled, and no form of government that is always and everywhere superior. In this regard, his outlook was not unlike that evidenced in The Statesman by Plato, who acknowledged the existence of a multiplicity of disparate goods, who compared statesmanship with weaving, and who believed that, in lawgiving and in the formulation of public policy, there is no substitute for prudence.
In his Persian Letters, Montesquieu floated the notion that the government “most in conformity with Reason” and “most perfect” is “a Government gentle,” free from unnecessary “severity,” which “moves towards its end with minimal expense” by conducting “men in the manner that accords best with their propensities and inclinations.” In his magnum opus, he refined this argument, contending that “the government most in conformity with nature is that government whose particular disposition best relates to the disposition of the people for whom it is established.” Montesquieu may have endorsed a species of universalism when he defined “law, in general,” as “human reason, insofar as it governs all the peoples of the earth,” but he insisted at that same time on qualifying this claim. To “the political and civil laws of each nation,” he attributed a measure of rationality. Despite their disparity, he said, these laws are “nothing other than the particular cases to which this human reason applies itself.”
Montesquieu was trained in the law, and he had once been a judge. His outlook resembled in certain respects that of the English jurist Sir Edward Coke. Neither was inclined to embrace abstract schemes, but both believed that natural right informs the evolution of the law. In explaining what he had in mind, Montesquieu argued that “reason has a natural” and even “a tyrannical empire” over man. If, he observed, “one resists” reason, “this resistance” itself will nonetheless prove to be the foundation of reason’s “triumph.” Circumstances will force a reconsideration. “Just a little time,” he writes, “and one is forced to return to her side.” To reasoning as a process, to trial and error, and to piecemeal reform, he was, in consequence, the greatest of friends, and this is why he thought it possible, on the basis of the “principles” that he had with great effort articulated in his book, to specify the logic or esprit evident in laws produced in the course of time by the repeated application of “human reasoning” to “particular cases.” But, by the same token, to rationalism left in politics unchecked, unbridled, and unobstructed, he was firmly, even fiercely opposed. It was his aim “to prove” that “the spirit of moderation ought to be that of the legislator.”
There was, however, an obstacle to the sway of what Montesquieu had in mind when he spoke of moderation, and it was exemplified in different ways by Hobbes and Locke. It is “a misfortune attached to the human condition,” Montesquieu observes, but one cannot deny the fact:
Great men who are moderate are rare; and as it is always easier to follow one’s strength (force) than to arrest it, within the class of superior people, one may perhaps with greater facility find people extremely virtuous than men extremely wise.
The soul tastes so much delight in dominating other souls; even those who love the good love themselves so strongly that there is no one who is not so unfortunate as to still have reason to doubt his own good intentions: and, in truth, our actions depend on so many things that it is a thousand times easier to do good than to do it well.
In this passage, Montesquieu draws attention to the fact that there is something inherently immoderate and perhaps even tyrannical at the heart of all forms of political idealism and public spiritedness. There is another passage in which he spells out the consequences.
“There are,” he observed, “certain ideas of uniformity, which sometimes lay hold of men of great spirit,” such as Charlemagne, “and which infallibly strike small spirits, who find in it a species of perfection that they recognize because it is impossible that they not discover it: in public administration the same weights, in commerce the same measures, in the State the same laws, in all parts the same religion.” Montesquieu himself doubted whether uniformity was “always without exception à propos”; and, by way of posing a rhetorical question, he insisted that “greatness of genius consists more in knowing in what case uniformity is needed and in what case differences are required.” In contrast with the champions of enlightened despotism and with those who flatly denied the legitimacy of absolute monarchy, he thought the political and social diversity produced in different lands by the process of trial and error perfectly consistent with the dictates of reason. When he suggested that governments need to be tailored to the dispositions of the peoples for whom they are framed, he added that it would be “a very great accident if the laws of one nation” were “able to suit another.”
To explain why this should be so, Montesquieu outlined the overall argument of his work. First, and most important, he contended, one must consider the laws in relation “to the nature and to the principle of the government which is established, or which one wishes to establish,” for that there be some such rapport is a matter of necessity: “either the laws form this government, as do the political laws, or they maintain it, as do the civil laws.” Then, he added that one can also expect the laws to be related
to the country in its physical aspect; to the climate, whether it be icy, broiling, or temperate; to the quality of the terrain, to the country’s situation, to its size; to the species of life adopted by the peoples, whether they be husbandmen, hunters, or herdsmen; it should be related to the degree of liberty that the constitution is able to tolerate, to the religion of the inhabitants, to their inclinations, to the riches they possess, to their number, their commerce, their mores, their manners. Finally, the laws have relations with one another; they have relations with their origin, with the object of the legislator, with the order of things on which they are established.
“It is,” he concluded, “from all of these perspectives that one must consider the laws”; and, of course, that is precisely what he did in his massive tome.
Montesquieu’s attempt to articulate a species of modern natural right consistent with a restoration of prudential statesmanship to its rightful place was widely appreciated at the time. Overnight, The Spirit of Laws became the political Bible of learned men and would-be statesmen everywhere in Europe, and beyond. In Britain, it shaped the thinking of Edmund Burke, Edward Gibbon, William Blackstone, Adam Smith, Adam Ferguson, John Robertson, John Millar, Lord Kames, and Dugald Stewart among others, and in America, it inspired the Framers of the Constitution and their opponents, the Anti-Federalists, as well. In Italy, it had a profound effect on Cesare Beccaria, and in Germany, it was fundamental for Georg Wilhelm Friedrich Hegel. In France, it was the starting point for all subsequent political thought. Its impact can hardly be overestimated. In the course of the eighteenth century, Montesquieu’s magnum opus was translated into English, Italian, German, Latin, Danish, Dutch, Polish, and Russian and appeared in more than one hundred sixty editions.
Nowhere was the book more important than in the fledgling United States. In The Federalist, James Madison called the author of The Spirit of Laws an “oracle,” and both Madison and Alexander Hamilton spoke of him as “the celebrated Montesquieu.” They sensed what subsequent scholarship has shown to be true: that no political writer was more often cited and none was thought to be of greater authority in the era of American constitution-making. They knew, moreover, that in England and on the continent of Europe Montesquieu was thought to be of similar stature. Indeed, having carefully read his Spirit of Laws themselves, they knew why, throughout the Christian West, he was held in such regard; and, though they took issue with him on particular matters, it was within the framework of his understanding of the relationship between natural right and constitutionalism that they sought to articulate a constitutional scheme appropriate to the particular dispositions of the people for whom it was framed.
. See Jean-Jacques Rousseau, Émile, ou De l’Éducation (1762), Book V, ed. Charles Wirz, Œuvres complètes de Jean-Jacques Rousseau, eds. Bernard Gagnebin and Marcel Raymond, vol. IV, (Paris: Bibliothèque de la Pléiade, 1959–95), 836–37.
. In more recent times, he has even been described as a sociologist of sorts: see Émile Durkheim, “Montesquieu’s Contribution to the Rise of Social Science,” Montesquieu and Rousseau: Forerunners of Sociology, trans. Ralph Mannheim (Ann Arbor, Mich.: University of Michigan Press, 1965), 1–64, and Pierre Manent, The City of Man, trans. Marc A. LePain (Princeton, N.J.: Princeton University Press, 1998), 11–85 (esp. 50–85).
. See David Hume, An Enquiry Concerning the Principles of Morals, III.ii in Enquiries Concerning the Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge, 2nd ed. (Oxford: Oxford University Press, Clarendon Press, 1902), 197n.
. See also George Klosko, “Montesquieu’s Science of Politics: Absolute Values and Ethical Relativism in L’Esprit des lois,” Studies on Voltaire and the Eighteenth Century 189 (1980): 153–77.
. See Thomas L. Pangle, Montesquieu’s Philosophy of Liberalism: A Commentary on The Spirit of the Laws (Chicago: University of Chicago Press, 1973), 20–47, and Michael Zuckert, “Natural Law, Natural Rights, and Classical Liberalism: On Montesquieu’s Critique of Hobbes,” in Natural Law and Modern Moral Philosophy, eds. Ellen Frankel Paul, Fred Miller, Jr., and Jeffrey Paul (Cambridge: Cambridge University Press 2001), 227–51.
. Charles-Louis de Secondat, baron de La Brède et de Montesquieu, De l’Esprit des lois 2.11.20 (which I cite by part, book, and chapter) in Œuvres complètes de Montesquieu, ed. Roger Caillois (Paris: Bibliothèque de la Pléiade, 1949–51).
. See Joseph de La Porte, Observations sur l’Esprit des lois, ou L’Art de lire ce livre, et de l’entendre et d’en juger (Amsterdam: Pierre Mortier, 1751).
. Charles de Secondat, baron de La Bréde et de Montesquieu, Mes pensées, no. 2057, in Montesquieu, Pensées, Le Spicilège, ed. Louis Desgraves (Paris: Laffont, 1991).
. Montesquieu, Mes pensées, no. 2092.
. See Robert Shackleton, “Censure and Censorship: Impediments to Free Publication in the Age of Enlightenment,” The Library Chronicle of the University of Texas at Austin, n. s., 6 (December 1973): 25–41, which is reprinted in Shackleton, Essays on Montesquieu and on the Enlightenment, eds. David Gilson and Martin Smith (Oxford: The Voltaire Foundation, 1988), 405–20, and William Hanley, “The Policing of Thought: Censorship in Eighteenth-Century France,” Studies on Voltaire and the Eighteenth Century 183 (1980): 265–95. Montesquieu had considerable experience with the censorship apparatus: see Edgar Mass, Literatur und Zensur in der frühen Aufklärung: Produktion, Distribution und Rezeption der Lettres persanes (Frankfurt am Main: Vittorio Klostermann, 1981), 5–68, 139–205, and Paul A. Rahe, “The Book That Never Was: Montesquieu’s Considerations on the Romans in Historical Context,” History of Political Thought 26 (Spring, 2005): 43–89.
. On Montesquieu’s mode of composition, see Pangle, Montesquieu’s Philosophy of Liberalism, 11–19, and Bertrand Binoche, Introduction à De l’Esprit des lois de Montesquieu (Paris: Presses Universitaires de France, 1998), 8–27.
. See Montesquieu, De l’Esprit des lois, Preface.
. These chapters have received considerable attention. In addition to the secondary literature cited in notes 4–5, above, see David Lowenthal, “Book I of Montesquieu’s Spirit of the Laws,” American Political Science Review 53 (June 1959): 485–98; Mark H. Waddicor, Montesquieu and the Philosophy of Natural Law (The Hague: Martinus Nijhoff, 1970), 65–99; Jean Goldzinck, “Sur le Chapitre 1, du livre 1, de l’Esprit des lois de Montesquieu,” in Analyses & réflexions sur Montesquieu, De l’Esprit des lois: La Nature et la loi (Paris: Ellipses, 1987), 107–19; Pierre Rétat, “Les Ambiguïtés de la notion de loi chez Montesquieu: Analyse du livre I de L’Esprit des lois,” in De la Tyrannie au totalitarisme: Recherche sur les ambiguïtés de la philosophie politique (Lyon: L’Hermès, 1986), 125–35; Stanley Rosen, “Politics and Nature in Montesquieu,” in his The Elusiveness of the Ordinary: Studies in the Possibility of Philosophy (New Haven, Conn.: Yale University Press, 2002), 14–53; Yoshie Kawade, “La Liberté civile contre la théorie réformiste de l’État souverain: Le Combat de Montesquieu,” in Le Travail des lumières: Pour Georges Benrekassa, eds. Caroline Jacot Grapa et al. (Paris: Honoré Champion, 2002), 203–23; and Stuart D. Warner, “Montesquieu’s Prelude: An Interpretation of Book I of The Spirit of Laws,” in Enlightening Revolutions: Essays in Honor of Ralph Lerner, eds. Svetozar Minkov and Stephane Douard (Lanham, Md.: Lexington Books, 2006), 159–87. Also pertinent are Sharon R. Krause, “History and the Human Soul in Montesquieu,” History of Political Thought 24 (Summer 2003): 235–61 (at 235–52), and Sharon R. Krause, “Laws, Passion, and the Attractions of Right Action in Montesquieu,” Philosophy & Social Criticism 32, no. 2 (2006): 211–30.
. Cf. Montesquieu, De l’Esprit des lois, 1.1.1 with ibid. 1.1.2–3.
. See Montesquieu, De l’Esprit des lois, 1.1.2–3, 3, 8.3; 3.18.1–2, 8–18, 26, 30.
. Cf. Charles de Secondat, baron de La Bréde et de Montesquieu, Lettres persanes (1721), ed. Edgar Mass, vol. 1, Œuvres complètes de Montesquieu, eds. Jean Ehrard et al. (Oxford: The Voltaire Foundation, 1998–), no. 78, with Montesquieu, De l’Esprit des lois, 1.1.3.
. After reading Stephen A. Siegel, “The Aristotelian Basis of English Law, 1450–1800,” New York University Law Review 56 (1981): 18–59, and James R. Stoner, “Common Law and Natural Law,” Benchmark 5 (1993): 93–102, see Georges Benrekassa, “Philosophie du droit et histoire dans les livres XXVII et XXVIII de L’Esprit des lois,” in Benrekassa, Le Concentrique et l’excentrique: Marges des lumières (Paris: Payot, 1980), 155–82, and consider Paul O. Carrese, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press, 2003).
. See Montesquieu, De l’Esprit des lois, Pref.; 1.1.3; 6.28.6, 38, 29.1.
. See Montesquieu, De l’Esprit des lois, 6.28.41.
. See Montesquieu, De l’Esprit des lois, 6.29.18.
. See Montesquieu, De l’Esprit des lois, 1.1.3. In this connection, see Alberto Postigliola, “Forme di razionalità e livelli di legalità in Montesquieu,” Rivista di storia della filosofia 49 (January 1994): 73–109.
. Note Frank T. H. Fletcher, Montesquieu and English Politics, 1750–1800 (London: E. Arnold & Co., 1939), and William Stewart, “Montesquieu vu par les Anglais depuis deux siècles,” in Actes du congrès Montesquieu réuni à Bordeaux du 23 au 26 mai 1955 (Bordeaux: Impriméries Delmas, 1956), 339–48; then, see Cecil Patrick Courtney, Montesquieu and Burke (Oxford: Blackwell, 1963); Carrese, The Cloaking of Power, passim; David Carrithers, “The Enlightenment Science of Society,” in Inventing Human Science: Eighteenth-Century Domains, eds. Christopher Fox, Roy Porter, and Robert Wokler (Berkeley, Calif.: University of California Press, 1995), 232–70; Sheila M. Mason, “Les Héritiers écossais de Montesquieu: Continuité d’inspiration et métamorophose de valeurs,” in La Fortune de Montesquieu: Montesquieu écrivain (Bordeaux: Bibliothèque Municipale, 1995), 143–54; and James Moore, “Montesquieu and the Scottish Enlightenment,” in Montesquieu and his Legacy, ed. Rebecca E. Kingston (Albany, N.Y.: State University of New York Press, 2008), 179–98.
. Note Paul Merrill Spurlin, Montesquieu in America, 1760–1801 (Baton Rouge, La.: Louisiana State University Press, 1940), and see James W. Muller, “The American Framers’ Debt to Montesquieu,” in The Revival of Constitutionalism, ed. James W. Muller (Lincoln, Nebr.: University of Nebraska Press, 1988), 87–102; Anne M. Cohler, Montesquieu’s Comparative Politics and the Spirit of American Constitutionalism (Lawrence, Kans.: University Press of Kansas, 1988); Matthew P. Bergman, “Montesquieu’s Theory of Government and the Framing of the American Constitution,” Pepperdine Law Review 18, no. 1 (1990): 1–42; Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill, N.C.: University of North Carolina Press, 1992), II.iii.4, III.Prologue, i.3–7, ii.2, iii.4–5, iv.3–5, 7, 9, v.3, 6; Bernard Manin, “Checks, Balances and Boundaries: The Separation of Powers in the Constitutional Debate of 1787,” in The Invention of the Modern Republic (Cambridge: Cambridge University Press, 1994), 27–62; and Jacob Levy, “Montesquieu’s Constitutional Legacies,” in Montesquieu and his Legacy, 115–38.
. See Catherine Larrère, “Droit de punir et qualification des crimes de Montesquieu à Beccaria,” in Beccaria et la culture juridique des lumières, ed. Michel Porret (Geneva: Droz, 1997), 89–108, and David W. Carrithers, “Montesquieu’s Philosophy of Punishment,” History of Political Thought 19 (Summer 1998): 213–40.
. See Michael A. Mosher, “The Particulars of a Universal Politics: Hegel’s Adaptation of Montesquieu’s Typology,” American Political Science Review 78 (March 1984): 179–88, and Kawade, “La Liberté civile contre la théorie réformiste de l’État souverain,” 203–23.
. See Roberto Romani, “All Montesquieu’s Sons: The Place of Esprit Général, Caractère National, and Mœurs in French Political Philosophy, 1748–1789,” Studies on Voltaire and the Eighteenth Century 362 (1998): 189–235, whose reading of Montesquieu and of his critics and heirs nonetheless leaves something to be desired. The case of Denis Diderot is of special interest: see Arthur M. Wilson, “The Concept of Mœurs in Diderot’s Social and Political Thought,” in The Age of the Enlightenment: Studies Presented to Theodore Besterman, ed. W. H. Barber et al. (Edinburgh: Oliver & Boyd, 1967), 188–99.
. In this connection, see the essays collected in the two-volume study Montesquieu e i suoi interpreti, ed. Domenico Felice (Pisa: Edizioni ETS, 2005). Note also Catherine Volpilhac-Auger, “L’Esprit des lois, une lecture ad usum Delphini?” in Le Travail des lumières, 137–71.
. See Cecil Patrick Courtney, “L’Esprit des lois dans la perspective d l’histoire du livre (1748–1800),” in Le Temps de Montesquieu: Actes du colloque international de Genève (28–31 october 1998), ed. Michel Porret and Catherine Volpilhac–Auger (Geneva: Droz, 2002), 66–96.
. See Alexander Hamilton, John Jay, and James Madison, The Federalist, ed. Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961), nos. 47 and 78.
. See Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review 78 (March 1984): 189–97.