Liberty Matters

A Note on the Luxury of Reading Montesquieu

People are so complicated. It’s like every new person is a completely new roll of the dice, right? --Marilynne Robinson
Our thanks are due to Professor Hank Clark for bringing his esteemed erudition to bear on issues related to the history of liberty, and for pursuing his task by being particularly attentive to Montesquieu’s contribution to them.  What follows is a somewhat roundabout way of approaching that contribution.
We could at least not be accused of being far from the mark if we fixed upon Montaigne as first among moderns in articulating in granular detail the vagaries and variability of human individuality. His 107 essays—each one a single paragraph, yet collectively extending over 800 pages, and many of them with façade titles—provide a compass to explore the diverse ways in which human beings render themselves manifest in the world.  It is by navigating these many trials that Montaigne affords his readers the opportunity to experience and understand what it means for human beings to be free and equal. Yet regardless of how far one travels in Montaigne’s Essays[24] one will soon encounter a reflection on the power exerted on us by custom and convention.  To inquire into the human being means, in no small measure, to inquire into how, and the extent to which, the customs and conventions of time and place shape us, while not determining us, and carve out paths for us to follow, without requiring that we take any one of them. For reasons that are not difficult to see, many question whether Montaigne is a relativist of sorts; and equally many question whether Montaigne is offering a descriptive account of the human endeavor, or a normative one, or both. One of his essays in which these questions and Montaigne’s animating philosophical concerns ironically surface is “Of Sumptuary Laws,” written some 175 years before Montesquieu, his fellow citizen from Bordeaux, presented his own reflections on that subject in The Spirit of Laws (1748).[25]
Like Montaigne, Montesquieu is awestruck by the diverse roads traversed by human beings over the course of human history, a diversity for which The Spirit of Laws seeks to account.  But whereas Montaigne’s interests directed him to the individual and his idiosyncrasies, Montesquieu’s interests lie with the various forces, both human and of nature, that condition the laws and institutions that govern various peoples, as well as with those laws and institutions themselves.  Thus, Montesquieu tells us early in his “Preface” that “I have at first examined men, and I have affirmed that, in this infinite diversity of laws and morals, they were not solely guided by their fantasies.” And he continues, “I have laid down the principles, and I have seen the particular cases submit to them[26] as if by themselves—the histories of all nations being but the results of them, and each particular law bound to another law or dependent on one more general.” Montesquieu’s analysis is, then, thoroughly relational from the ground up.
The Spirit of Laws bears the imprint of a singular design, and Montesquieu’s plan would lead him to insist that the 31 books of the work be divided into six parts.[27]  The last seven of the eight books of Part I consist in an examination of various types of government and what he denotes as the nature and principle of each. By the nature of each type he means its structure, who rules and who is ruled, that is, “that which makes it be such and such”; by its principle, a matter he deems vastly more important and controlling, he means the “human passions” that set each type of government in motion.[28] At the beginning of his discussion of the former matter in Book 2, Montesquieu tells us that there are three types of government: republican, monarchical, and despotic. However, very shortly after doing so, he then divides republican government into two possibilities—democratic and aristocratic.  The nature of republican government is that all of the people or some of the people rule; of monarchical government, that one rules by law; and of despotic government, that one rules by caprice.  In his discussion of the latter matter in Book 3, Montesquieu informs us that the principle of republican government is virtue; of monarchical government, honor; and of despotic government, fear. 
It is readily understandable that Montesquieu characterizes fear as a passion; yet we must underscore that he characterizes virtue and honor as passions, too.  By virtue he is not referring to any rational moral principle; rather, and curiously, he tells us that he is referring to political virtue, from which he excludes moral and Christian virtue, and by which he means the love of one’s fatherland and the renunciation of self. Indeed, in the chapter titled “What virtue is in a political state,”[29] Montesquieu introduces monks—who love their order so much that they are willing to forgo their own individual inclinations—by way of vigorously exemplifying what political virtue is: dare we say that it is anything but the passion of self-love that animates republican political life on this view. Furthermore, he remarks that the honor that is the spring of monarchical government is “a false honor,” albeit one that is useful in a monarchy, and thus it rests on a kind of ignorance of oneself.[30] There is, of course, nothing false about fear.
Yet no sooner has Montesquieu begun to spell out all of the above—utilizing ancient historical examples to illustrate republics and modern historical examples to illustrate monarchies and despotisms—than he introduces several further important distinctions. One of these is between moderate and despotic governments, a distinction the analysis of which is left mostly to the reader, as is understanding how it might map on to the earlier account. But he draws another distinction with respect to republics, between military republics and commercial republics,[31] which, given Montesquieu’s understanding of the ascetic-like virtue propelling republics, is prima facie hard to fathom. Despite these additional complexities, which should lead us to realize that what we might have thought of as being a rather straightforward nomenclature is surely not that, Montesquieu devotes most of Books 4 through 8 of The Spirit of Laws to a study of the relationship between the principles of the three (or four) types of government and what he terms the laws of education, legislative law, civil and criminal law, and luxury, sumptuary laws, and the condition of women, finally concluding Part I by examining the corruption of those very principles and what happens respectively to each type of governance when that occurs.  Thus, for example, in Book 4, Montesquieu traces out for us how the requirements of education differ in republics, monarchies, and despotic government, as education works towards the success of those different types of government and works to reinforce the principles at work—that is, he examines the diverse kinds of education appropriate to these different types of government.  Montesquieu applies the same logic of analysis in Book 7 to sumptuary laws.  The analysis does not aim at judging the value or lack thereof of sumptuary laws from the perspective, say, of liberty; instead, he aims to reveal how sumptuary laws comport with the type of government in question and its respective principle.  Nevertheless, it would be wise to notice that Montesquieu finds sumptuary laws to be less at home in monarchies than he finds elsewhere.
In the light of the foregoing it is not hard to see why, just as was the case with Montaigne, many question whether Montesquieu is a relativist, and also question whether he is offering a descriptive or normative analysis, or both.  However we are to deal with these matters, and they necessitate an inquiry beyond the pale of this brief note, what is of the utmost importance is that in the first part of The Spirit of Laws, Montesquieu’s focus does not come to rest on questions of liberty.  He first turns in earnest to that subject in Part II of the work, especially Books 11 and 12, and the legendary chapter in the first of those books on “Of the constitution of England.” But our interest here must lie with Book 11, chapter 4, which Montesquieu begins in this way: “Democracy and aristocracy are not free States by their nature. Political liberty is found only in moderate governments. But it is not always in moderate States; it is in them only when one does not abuse power, but it is an eternal experience that each man who has some power is inclined to abuse it; he goes on until he finds some limits. Who would think it! Virtue itself needs limits” (my emphasis). Montesquieu is slyly intimating that neither the nature nor the principle of any type of government can provide us with an understanding of what liberty is and the institutions that sustain and further it.  We can make sense of liberty only through an analysis of the constitution of a nation, through an analysis of the various powers to be found there—for example, executive, legislative, and judicial (in particular a jury system)—and their relation to each other. The classical political philosophical analysis in terms of a typology of different kinds of government or regimes, even explicated as Montesquieu does through the conceptual apparatus of nature and principle, cannot bring liberty into view.  But Montesquieu, in effect, offers a critique of the account that emerges from his famous chapter, which is putatively about England, but which uses an abridged historical presentation of that country in order to adduce a model of political liberty.[32] For at the beginning of Book 12, he indicates that the rule-of-law analysis of liberty that he proffers in Book 11 is perfectly consistent with the misuse of political power and liberty thereby being severely circumscribed: a procedural device is insufficient to guarantee a regime of liberty, for the very same procedures can produce a regime of tyranny.[33] As Montesquieu puts it, “It can happen that the constitution will be free, and that the citizen will not.”[34]  What also matters are substantive laws—more precisely, what matters are what the laws proscribe and what they allow.  Thus, Montesquieu devotes Book 12 to crimes in particular having to do with religion, sexuality, treason, speech, and writing, all in the attempt to limit the range of laws in these areas, in order to expand the range of liberty.
Yet it should be noticed that by the time one has finished the two books on liberty, only some 200 pages of The Spirit of Laws have passed, and over some 500 pages remain, including two enormous books on commerce (20 and 21)—one on its nature and one on its revolutionary history—both of which are ultimately pivotal to understanding Montesquieu’s conception of liberty. In the context at hand, there is one element of Montesquieu’s presentation of the nature of commerce to which our attention must be drawn and that involves a remark in the opening chapter of Book 20: “Commerce cures destructive prejudices.  And it is almost a general rule that everywhere that there are gentle morals, there is commerce; and that everywhere that there is commerce, there are gentle morals.” Now the French word (douces) translated here as “gentle” also means “soft,” and it is a word that shows up at least 32 times in The Spirit of Laws. It is a word that Montesquieu not infrequently associates with women. In fact, we should remember that Persian Letters,[35] Montesquieu’s first book, where this same French word appears 30 times, explores what it means to be free and to be human through the prism of women; we should also remember that many of his further writings through the early 1740s were also centered on women. The significance of this, I do not believe, has adequately been recognized, for these writings are sometimes dispatched as being juvenile or overly romanticized silliness. But as commerce comes light, it does so, in a certain respect, feminized, standing starkly in opposition to political virtue as the principle of republics, along with fear as the principle of despotic government.
I raise this matter in regards to Book 7, which Professor Clark has with some care brought before us.  His attention is most directly fixed on Montesquieu’s discussion of sumptuary laws, and secondarily on Montesquieu’s discussion of luxury, which makes sense. Nonetheless, my attention is riveted on Montesquieu’s discussion of women, which occupies the very center of Book VII, as well as its concluding chapter. Indeed, when I first began Professor Clark’s essay, and his invocation of Nicolosa Sanuti’s marvelous recitation, “Nicolosa Sanuti, Bolognese matron, to the most Reverend Father in Christ, the Bolognese papal legate, that ornaments be restored to women,”[36] I anticipated that he would present Montesquieu’s offering on luxury and sumptuary laws as a vehicle for attending to the significance of the principles of the three types of governments in relation to women, and more generally the place of women in the three types of government that he adumbrates. Apparently, what I hoped was my own light blinded me.
[24.] Still the best English translation is The Complete Works of Montaigne, translated by Donald Frame (Stanford: Stanford University Press, 1957).
[25.] On Montaigne’s political thought generally, cf. David Lewis Schaefer, The Political Philosophy of Montaigne (Ithaca: Cornell University Press, 1990); and Biancamaria Fontana, Montaigne’s Politics: Authority and Governance in the Essais (Princeton: Princeton University Press, 2008).
[26.] s’y plier—literally “to bend,” a clear allusion to La Fontaine’s fable, “The Oak and the Reed,” the latter of which is, because of its pliability, more representative of the human, an allusion he will further advance later on in the “Preface” as well (par. 10).
[27.] Guided by the advice of his friend Jacob Vernet, Montesquieu did not divide the work into parts in the 1748 and 1749 editions, but did do so in the last edition of his lifetime, in 1750.
[28.] The Spirit of Laws, 3.1 (book 3, chapter 1). All translations are the author’s.
[29.] The Spirit of Laws, 5.2.
[30.] The Spirit of Laws, 3.7.
[31.] Montesquieu appears to be the first European thinker to use this expression (rendered into English by Thomas Nugent in 1750 as “trading republic”) outside of the Dutch, who make use of it as early as the middle of the 17th century.
[32.] Cf. The Spirit of Laws, 19.27.
[33.] Montesquieu’s turn here is redolent of a critique of Hayek’s analysis of the rule of law in The Constitution of Liberty set forth by Ronald Hamowy, “Hayek’s Concept of Freedom: A Critique,” New Individualist Review 1 (1961), 28-31.
[34.] The Spirit of Laws, 12.1.
[35.] A careful study of Persian Letters might begin with Diana Schaub, Erotic Liberalism: Women and Revolution in Montesquieu’s Persian Letters (Lanham, MD: Rowman & Littlefield, 1995), and Jean Starobinski, “Exile, Satire, Tyranny: Montesquieu’s Persian Letters,” in Blessings in Disguise; or, The Morality of Evil, translated by Arthur Goldhammer (Cambridge: Harvard University Press, 1993).
[36.] A translation of this work, which Professor Clark’s essay has surely introduced to me, can be found as an appendix to Catherine Kovesi Killerby, “‘Heralds of a Well-instructed Mind’: Nicolosa Sanuti’s Defence of Women and Their Clothes,” Renaissance Studies 13 (1999), 255-82.