The Reading Room
Montesquieu on Republican Government: Separation of Powers and “the Liberalism of Fear”
Baron de Montesquieu (1689–1755), valuing above all things political liberty—the opposite of despotism—valorizes the republican form of government but nonetheless offers a dispassionate analysis of republican (democratic or aristocratic), monarchical, and despotic governments.
While commending republican government, he argues that different circumstances (for example, climate and soil conditions) can favor different forms of government. And he rather dispassionately sets forth (the virtue of) each form of government, what it requires, what protects and what corrupts it, and where its corruption leads. The exception is despotism, which he explains does not lead to corruption because it is corruption—but even so, he notes its requirements and some dubious benefits. This discussion is followed by an investigation of the nature of liberty and the structural keys to preserving it: separation of powers with checks and balances. It is a discussion that duly impressed the architects of the U.S. Constitution some four decades after he published The Spirit of the Laws.
Each form of government has a principle and is initiated and driven by corresponding “human passions.” And each becomes corrupted when its principle is weakened or destroyed. (Montesquieu built on Aristotle, who identified three forms of government—monarchy, aristocracy, constitutionalism —and their three corruptions—tyranny, oligarchy, democracy.) “Unlike, for instance, Aristotle, Montesquieu does not distinguish forms of government on the basis of the virtue of the sovereign. The distinction between monarchy and despotism, for instance, depends not on the virtue of the monarch, but on whether or not he governs ‘by fixed and established laws.’ ”
The principle of the democratic form of republican government is political virtue, the love of one’s country and its laws—including its constitution. Admission to suffrage and voting itself are rudimentary; but much more is required to protect the principle. The reason, as Montesquieu sees it, is that the virtue required of the people is not natural. The virtue is the consistent preference for the public good over private interest. He sees this as a kind of self-renunciation, like the vows of monks to God. To sustain this spirit of democracy requires “the whole power of education.” It can be aided, too, by the correct laws concerning property to preserve relatively equal distribution so that some are not tempted to seize the property of others. The corruption of democracy, however, proceeds from the demand that individuals be equal not only as citizens but in all ways (“the spirit of extreme equality”)—and in that direction lies despotism.
The principle of the aristocratic republican form of government, where part of the population governs the rest, is moderation. Moderation means restraint, on the part of the aristocrats, from oppressing the people or seeking power over one another. The law must instill this moderation by denying the nobility certain powers, such as taxation, in which abuse is inherent, by disguising insofar as possible the differences between the aristocracy and “the people” and by ensuring equality among aristocratic families. Where these laws fail in their purpose, moderation is lost, and the spirit of government corrupted.
Monarchy is a form of government “by fixed and established laws” in which one person has supreme political power. The root requirement is that the laws fixing, and limiting, the monarch’s will and powers originate elsewhere—in subordinate institutions such as the nobility and an independent judiciary. To protect this crucial structure, the laws must preserve the powers of those law-giving subordinate bodies.
The principle of monarchy—the human passion at work—is honor. Here, monarchy has a kind of advantage over democracy because the desire for honor and distinction comes naturally to humans (unlike the virtue required in democracy). It follows, says Montesquieu, that education’s task is a less difficult task than under a democracy because it is going with the flow, so to speak. Its principal job is to provide a worthy and inspiring concept of honor and the social graces needed to be polite to others who have as much sense of self-worth as oneself.
If the critical structure of monarchy is to be preserved, the subordinate institutions that provide the monarch with fixed laws must be protected. That requires laws to protect the power of the nobility. Property (e.g., large estates), privileges, and the rule of law must be defended. If that fails, the restraint on the will of the monarch is lost and monarchy becomes despotism.
Montesquieu opines that the often-great strength and stability of monarchies arise from the marriage of personal ambition with honor. With both required, many varieties of motivation will lead people to serve the country.
Despotism is the catastrophic default of governments that fail to defend fixed laws that limit power. Under despotism, a single individual dictates everything “by his own will and caprice.” With no laws to limit him, and no others to whom he must attend, the despot can do anything. Montesquieu’s description, and his personal feelings, are grim. The despot’s subjects are slaves, entirely at his disposal, and thus the principle of despotism is fear. It is a fear easily sustained because subjects have no way to predict or protect themselves against any fate. The only role of education in a despotic state is to break men’s spirits and debase their minds.
Despotic governments systematically undermine themselves. With all outcomes in life arbitrary, subjects lose ambition. Property is not secure, so commerce is discouraged. Over time, punishments to keep subjects in a state of fear and thus obedient must become increasingly severe as people get used to the same threats. The despot’s mind itself, with nothing required of it but whims, mere will, does not develop intelligence, character, or resolution. Instead, the common image of the despot is a man lazy, ignorant, voluptuous, and not even interested in governing. Thus, the arbitrary powers of government fall into the hands of his subordinates, who, in his absence, can spin conspiracies and plots against him—and that includes the army and police. For all these reasons, despotism is unstable, always decaying from within.
Harvard University historian Judith N. Shklar (1928–1992) made famous the phrase “the liberalism of fear” and used it to characterize, among others, Montesquieu. It applies also to many of the Founding Fathers. Montesquieu despised despotism but also characterized it as terrifying. Its opposite, he argued, is political liberty, “a tranquility of mind arising from the opinion each person has of his safety.”
He meant “safety” in the context of safety from the harm others can inflict. One is at first tempted to add “Yes, a major concern in his era!” But with the mass shootings and crime that characterize our day, it is better to say “any era.”
Liberty, said Montesquieu, is life under laws that protect us from harm but at the same time leave us free to do as much as possible. We will feel that tranquility if we are confident that by obeying the laws, we are safe, also, from power—and potential harm—from the state.
Like every desirable feature of government, liberty requires certain structures. The first addresses the insight that men given power are prone to abuse it. The only effective check on power is . . . power. This requires separation of the three branches of government. If different men wield these powers, then, out of jealousy, self-preservation, duty, or even principle, they will act to prevent others from tyrannical behavior. If the same person holds power in all three branches, we can have no confidence in our security. Note that Montesquieu keeps referring not to confidence in “liberty” but in our “security.” Security from harm (private or governmental) is the end; liberty is the means.
Second, separation of powers must be augmented by a system of checks and balances. Thus, the legislature has the power to tax and can withhold funds from the executive. The executive can veto laws passed by the legislature; and the legislature, advisably divided into two houses, can prevent bills of the other house from becoming law. The executive appoints Supreme Court justices, but the legislature must confirm them.
Third, the judiciary must be independent of the other two branches. It should be limited to applying the law to specific cases in a fixed and consistent manner. Here, Montesquieu does reflect his times, commenting that thus limited “the judicial power, so terrible to mankind” will become “invisible.” Specifically, people will respect (and fear) the office, but not the magistrate.
Liberty is preserved if laws address only threats to public order and security—protect us from harm but leave us the largest possible sphere of freedom to act. For example, and here Montesquieu is wry, laws need not concern offenses against God. He does not require our protection, thank you. Indeed, all punishment that is thus unnecessary is tyranny.
Laws must make it as easy as possible for citizens to avoid punishment by avoiding commission of crimes. Thus, crimes must be clearly and specifically defined: they must not be inadvertent acts; they must not be for any mental state or intention that is unprovable; and they must not be for conduct reason cannot prove (the example is witchcraft).
The consistent adherence to these principles by governments of Montesquieu’s time would have required what the Enlightenment could not accept: a miracle. Some six decades after publication of The Spirit of the Laws, the French Revolution began. The revolutionaries did not want for ideals and principles, and many, of course, were familiar with Montesquieu’s thought. But, in the end, means, not principles, drove the revolution over the cliff.
In Montesquieu’s time, the exact application of ideals of liberty—to the criminal law, for instance—was not common. Europe had not long to wait. Cesare Bonesana di Beccaria, born in Milan in 1738, the very decade that The Spirit of the Laws was published, launched reform across Europe of the criminal justice system, including penology, and became a luminary of the Age of Enlightenment. His work, too, was available to the Enlightenment men whose lot was to write a constitution to create a democratic republic for the new United States of America.
Nevertheless, from the outset, and for over 200 years, there has been disagreement among historians, sometimes sharp, about the extent of Montesquieu’s influence in shaping the U.S. Constitution. One historian put the case this way:
“Colonials and later Americans were surprisingly well acquainted with Montesquieu. . . . Most often the booksellers advertised Montesquieu’s writings in English although some could be purchased in French. . . . [T]he Esprit des lois was repeatedly and consistently advertised in English translation. This book, in English, was early for sale: in Charleston in 1756, at Annapolis in 1762, at Williamsburg in 1765, and in Boston certainly by 1771. It was a ‘better seller’ in the American colonies in 1774.
“Books of Montesquieu were in the libraries of such leaders of thought as Franklin, John Adams, Jefferson, James Wilson, John Witherspoon, and John Marshall. To judge by the numerous citations of the Spirit of Laws in their papers and speeches . . . George Mason, James Otis, John Dickinson, Samuel Adams, Nathaniel Chipman, Richard Henry Lee, Edmund Randolph, Alexander Hamilton, and James Madison . . . were familiar with the masterpiece. . . . The Spirit of Laws was recommended to law students. At Princeton and Yale, it was used as a textbook.“The American gazettes disseminated Montesquieu’s ideas. Both before and after the Revolution editors printed extracts, sometimes entire chapters, from his masterpiece. . . . During the colonial period and under the government of the Continental Congress, it was quoted in books, newspaper articles, magazines, pamphlets, sermons, and speeches. By 1787 the Spirit of Laws had become an “American” classic. It was cited in the Constitutional Convention at Philadelphia in the debates on the Constitution and in the state ratifying conventions. It was referred to and quoted in The Federalist, the collection of important papers written to encourage the adoption of the great charter. Revolutionist and Loyalist, Anglican and Quaker, Federalist and Republican, advocate and adversary of the Constitution all reinforced and adorned their articles and addresses by citing this treatise. Throughout the century it was used as an authoritative handbook of political information. Montesquieu was held in high esteem. . . .
“By the time of the Declaration of Independence Jefferson had copied and filled twenty-eight pages of his Commonplace Book with extracts from the Spirit of Laws, more space than he devoted to any other author. But later, Jefferson changed his opinion of the French writer.”
And there is much more. Nearly every essential idea of Montesquieu’s in The Spirit of the Laws can be found in either the Declaration of Independence or the U.S. Constitution. The phrase “the liberalism of fear” applies less to Jefferson than to John Adams, who asked repeatedly how Americans would acquire Montesquieu’s “virtue of democracy,” the love of the republic, its laws, and the public benefits such as freedom over private interest.
In 1776, John Adams wrote to Joseph Warren: “Public virtue cannot exist in a nation without private [virtue], and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest . . . established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superiour to all private passions.”
He was far from alone.
It is not difficult, today, to find denigrations of the Montesquieu and Adams brand of “conservatism” as rooted in a negative view of human nature, pessimism about human motives. Montesquieu, in fact, was an optimistic visionary, devoted to the potential of enlightenment. But he understood that human beings respond to motivations and in doing so become good and happy or obsessed with power, fearful, and predatory.
No motivation is greater than that provided by a government that protects the exercise of reason, freedom of action, property rights, and commerce. And its opposite is despotism, always awaiting default by the defenders of liberty. And despotism never was absent in Montesquieu’s time, in Adams’s time, or in ours.
The loss today of “the liberalism of fear” may be America’s true “national deficit.” For it is but the counterpart to the love of liberty. And if America cannot reignite “the liberalism of fear,” then the rest of the world surely will not.