The Reading Room
Montesquieu: Legal Foundations of Liberal Government
If you wish to study, discuss, and write about history, it can be useful to have memory tags. When it comes to Charles-Louis de Secondat, Baron de Montesquieu (1689–1755)—a titan of the French Enlightenment—your tag is “separation of powers in the U.S. Constitution.”
For a government “not already despotic,” he said, the best preventive measure is to create separate government bodies—all bound by law to exercise different and delimited powers. You know the “bodies” (as did Jefferson, Madison, Monroe, and others with much thanks to Baron de Montesquieu): legislative, executive, and judicial. The three branches of government as set forth in the U.S. Constitution.
A first question is how did a man born in 1689 in a town near Bordeaux to a wealthy, noble family at the height of ancien régime France—king, priesthood of the Catholic Church, hereditary nobility—become one of history’s most influential architects of its dissolution? And, for that matter, born a scion of noble privilege, why did he bestir himself to do so?
He took a law degree at the University of Bordeaux in 1708, then journeyed to Paris to continue his study of law. Everything in France, then, was about birth rights (although by the Revolution, the regime was peddling hereditary titles to raise funds); it was the “society of status” identified and named by historian Henry Maine. When Montesquieu’s uncle died, he inherited the title Baron de Montesquieu as well as inheriting the presidency of the parlement of Bordeaux, which was responsible for judicial and administrative matters.
Here was the reality of the law he had studied. He presided over the criminal division’s proceedings, supervised prisons, and administered punishment, including torture. During this time, he became active in the Academy of Bordeaux. Such academies, founded to investigate and keep current with the dazzling discoveries in every field (and new fields taking shape), were springing up all over Europe. Like all members, Montesquieu gave talks; in one instance, he gave a talk about the cause of echoes.
During this decade, tending his estate in Bordeaux, managing the local parlement’s administration of the crime division, raising his family, and keeping abreast of the sciences at the Academy, Montesquieu wrote his Persian Letters, publishing it in 1721. Would he have done so a century earlier, born to privilege, estates, and a title?
We cannot know, of course, but Montesquieu and the Enlightenment were born at the same time. (Historians commonly identify 1715 as the start of the Enlightenment, although that date applies mostly to France.) And study of the Enlightenment teaches us that a culture of reason —logic, science, and imagination—a culture challenging dogma, “establishments,” and settled limits, catalyzes the best minds of an era in every field of discovery. The contagion of excitement at discovery, ideas that defy the dogma of the schools, the glory of participating in building a new world: these seized the imagination and ambition of young men (and women) in one country after another and, later, ignited the imagination and hope of those in other lands such as Turkey and Japan.
So it was with Montesquieu. It did not matter if one lived in the vineyards of Bordeaux, the highlands of Scotland, or in London, Milan, or Dublin. You could be an architect of a new world being created. Your words and ideas, published, would be read, evaluated, discussed, and challenged. And, if they excited the imagination and passed the test of logic, they would be communicated around Europe and beyond in letters, books, lectures, and in the words of travelers on journeys.
Typically, Montesquieu published anonymously, and, typically, everyone knew the author. He became a literary lion and traveled often to Paris to the salons but also on business for the Bordeaux parlement and the Academy.
And then, in 1725, he upended his routine. He sold his hereditary office, resigned from the parlement, and was elected to the French Academy (Académie Française). Soon, he was traveling to Italy, Germany, Austria, then England, where he stayed for two years. In his admiration for the English political system, he found his first inspiration for his later works.
When he returned to Bordeaux in 1731, it was because of his alarm at his failing eyesight. Back at his estates, he launched into the work that inspired the Founding Fathers of the United States of America: The Spirit of the Laws. He published, too, anonymously, Considerations on the Causes of the Greatness of the Romans and Their Decline. Rome, at that time, was a model for governments, and Montesquieu, drawing on his thinking for The Spirit of the Laws, delivered a resounding warning.
The two books, like his earlier Persian Letters, proved bitterly controversial and triumphantly successful. Again, this typified the Enlightenment, which defined itself as challenging settled opinion, dogmas of faith, establishments of government and religion, stereotypes of the sexes, literary conventions, and bitter superstitions haunting the world.
Two years later, he took up his pen to answer critics in Defense of the Spirit of the Laws. It did not deter (as he had hoped) the Church of Rome from listing The Spirit of the Laws on its Index of Forbidden Books both in 1751 and 1755.
Montesquieu’s two great works, the Persian Letters and The Spirit of the Laws, express in very different ways his horror of despotism.
The Persian Letters, an epistolary novel of correspondence between two imaginary Persians, Usbek and Rica, takes the form of a tale of travelers and their journeys, a genre popular in that era. Montesquieu’s travelers arrive and travel in Europe, a “strange land” seen through their eyes.
Today, the Persian Letters is viewed as a brilliant novel. The character Rica, writes that it appears in this country that the pope is a magician. He can “make the king believe that three are only one, or else that the bread one eats is not bread, or that the wine one drinks is not wine, and a thousand other things of the same kind” (Letter 24). As the Stanford Encyclopedia of Philosophy notes:
“...one of the great themes of the Persian Letters is the virtual impossibility of self-knowledge, and Usbek is its most fully realized illustration. Usbek has left behind a harem in Persia, in which his wives are kept prisoner by eunuchs who are among his slaves. Both his wives and his slaves can be beaten, mutilated, or killed at his command, as can any outsider unfortunate enough to lay eyes on them. Usbek is, in other words, a despot in his home. . . .“The Persian Letters is both one of the funniest books written by a major philosopher, and one of the bleakest. It presents both virtue and self-knowledge as almost unattainable. Almost all the Europeans in the Persian Letters are ridiculous; most of those who are not appear only to serve as a mouthpiece for Montesquieu’s own views.”
At times, the novel seems startlingly prescient: “Ever since the invention of gunpowder . . . I continually tremble lest men should, in the end, uncover some secret which would provide a short way of abolishing mankind, of annihilating peoples and nations in their entirety.”
Well, we have accomplished that.
In The Spirit of the Laws, Montesquieu sets out to examine human laws and social institutions. In what sense are these “laws”? In Montesquieu’s opinion, physical laws are instituted, and their consistency and reliability sustained, by God. But laws and social institutions are created by fallible humans. How are they more comprehensible than any other human folly that Montesquieu exposes in the Persian Letters?
Montesquieu begins by distinguishing human laws and social institutions from physical laws of the universe. While physical laws are consistent and reliable thanks to God, human laws and institutions are intelligible and logical only within a specific context.
Context is everything. Different laws and social systems are valid only when seen as adaptations to specific factors and circumstances. “ ‘[T]o the people for whom they are framed . . . the nature and principle of each government . . . the climate of each country . . . the quality of its soil . . . its situation and extent . . . [and] the principal occupation of the natives.’ . . . When we consider legal and social systems in relation to these various factors, Montesquieu believes, we will find that many laws and institutions that had seemed puzzling or even perverse are in fact quite comprehensible.”
Above all, Montesquieu is not a utopian as were many later thinkers of the French Enlightenment. He believes that to live under a stable, nondespotic government that leaves its law-abiding citizens mostly at liberty to live their lives is a great good. That such a government should not be lightly tampered with. If we understand how it is adapted to the conditions of our country and its people, we will see how its apparently irrational features make sense—and how “reform” might weaken it. Would a monarchical government be strengthened by weakening the nobility—and thereby giving more power to the monarch? Montesquieu thinks not. Weakening groups or institutions that check a king’s power risks transforming monarchy into despotism, which he abhorred.
He digs much deeper into laws, what constitutes true reform, and how to accomplish it. Thus, he believes the laws of many nations could be made more liberal and humane, less arbitrary, less unpredictable, less oppressive. That includes the abolition of religious persecution and slavery and the encouragement of commerce.