1The expression droit français (French law) is not a part of Montesquieu’s vocabulary. Yet it is current in the juridico-political language of his time. Our question then, after clarifying its general usage, to try to explain why it is not found in L’Esprit des lois.
2Since the 16th century, a majority of jurists, ever increasing, in France as elsewhere declared itself favorable, if not to the unification of juridical rules within a given state, at least a reduction of the disparities to which the divisions of the feudal system had given rise in the Middle Ages. The concept of “common law” among various manors or principalities, which appeared as early as the 13th century, was transformed, according to the establishment and development of a national monarchical state, into that of a “French law”, proper to the ensemble of lands under the monarch’s power. At first a purely doctrinal creation – due to, among others, Renaissance jurisconsults, like Charles Dumoulin or Guy Coquille, author of a work entitled Institution au droit des Français (1595) – the idea was subsequently orchestrated as much by those who held to a school of national law as by theoreticians of monarchical absolutism who developed a sort of juridical nationalism: a single king, a single faith, a single law. However, as far as the third term is concerned, the ideal was far from being attained under the Old Regime. On the one hand, France was divided by a line running grosso modo from La Rochelle to Geneva, to the south of which practices inspired by Roman law or “written law” were followed, whereas the provinces to the north of that demarcation line applied the customs developed during the Middle Ages. Whence the distinction between “lands of written law” (pays de droit écrit) and “lands of custom” (pays de coutume). On the other hand, the customs officially written down beginning in the late 15th century and then receiving obligatory authority, on the same level as royal ordonnances or royal decrees, were numerous since the territorial framework of the application was limited, at the most vast, to the whole of a province (Normandy, Britanny, Artois, Burgundy, for example), but often to a bailiwick, or even to a manor or a city. To such an extent that, in Montesquieu’s time, whereas all the customs had been compiled in four large folio volumes, there were another sixty or so to which additionally derogated, under certain conditions, about three hundred so-called local customs.
3Besides the evident practical difficulties resulting from such a mosaic, as much as disadvantages of a political order due to such diversity, this situation shocked many “modern” minds enamoured of order and reason. The juridical unification of the realm – and no one thought it would be easy or rapid – remained the objective to strive for. Also, from the beginning of the personal reign of Louis XIV and with his agreement, the first president of the Paris parlement, Guillaume de Lamoignon, brought some jurists and practicians together around himself in order to “establish a certain and general law of all customs” (“établir une loi certaine et générale de toutes les coutumes”), at least in the very vast jurisdiction of the parlement which he headed. But the unification project remained only a sketch. However, the king promulgated “major orders” (grandes ordonnances), the content of which concerned, by definition, the whole of the realm, bearing on civil (1667) and criminal (1670) procedure, eaux et forêts (water and forests, 1669), and slavery in the colonies, the Code noir (1685). But the legislative texts had little to do with private law, still determined by customs or written law. The notion of unification was nevertheless not abandoned. Under the reign of Louis XV, at the very moment when Montesquieu was elaborating L’Esprit des lois, the chancellor Daguesseau was preparing ordonnances intended to make the essential differences between customs and written law disappear in the domains where the opposition of the two juridical systems was the least pronounced: the law of donations (1731), of testaments (1735), and of substitutions (1747). But they went no further in a legislative direction, so during the Enlightenment large swaths of private law remained fragmented.
4However, taking advantage of the necessary reform of university studies, Louis XIV had decided, in the edict of St Germain (1679), to create in each university a chair of “French law contained in the ordonnances and customs”, whereas until then only the laws called learned (savants), Roman law and canon law had the honor of being taught. The new instruction was to be entrusted to a practician (whence the scorn with respect to him on the part of the Romanists and canonists), who was taking on a particularly difficult mission, since applied law was far from uniform. This explains, in large measure, the slowness of application of the reform and the imperfections noted here and there at the end of the 17th and beginning of the 18th centuries. When Montesquieu was studying law in Bordeaux and had to take, as in all the other universities, a course in French law, we know that such a subject was far from satisfactory. In short, at best it could explain the content of ordonnances, of provincial customs, the jurisprudence of the local parlement…, using a few comparisons with the law in the neighboring provinces. The doctrinal works published on the basis of the teaching of “French law” are revealing in this respect. Such as the Traités sur diverses matières du droit français à l’usage du duché de Bourgogne et des autres pays ressortissant au parlement de Dijon... (“Treatises on various matters of French law for use in the duchy of Burgandy and other regions under the authority of the parlement of Dijon”, Dijon, 7 vols., 1751). Of course, the professors of this pretended “French law” could not explain what was, that is, the juridical disparities within the realm.
5Despite all, the will of monarchical power to reduce these disparities received the approval of essentially all enlightened men. Everyone is familiar with Voltaire’s jibe asserting that “a man who takes a post-chaise, in France, changes laws more often than he changes horses […] and a lawyer who is very knowledgeable in one city will know nothing in another” (“qu’un homme qui court la poste, en France, change de lois plus souvent qu’il ne change de chevaux [...] et qu’un avocat qui sera très savant dans sa ville, ne sera qu’un ignorant dans la ville voisine”, Dialogue entre un plaideur et un avocat, 1751, p. 23). Jean-Jacques Rousseau, for his part, extols the virtues of state law taking over from the multiple local juridical sources: “With respect to Roman and customs law, it all, if it exists, must be taken out of the schools and courtrooms. The only authority that should be recognized there is the laws of the state; they must be uniform in all the provinces” (“À l’égard du droit romain et des coutumes, tout cela, s’il existe, doit être ôté des écoles et des tribunaux. On n’y doit connaître d’autre autorité que les lois de l’État ; elles doivent être uniformes dans toutes les provinces [...]”, Considérations sur le gouvernement de Pologne, ch. X, 1771-1772, p. 548-549). In sum, the dominant thought in the 18th century, on the basis of jusnaturalism and/or rationalism, declares itself in favor of the juridical unity of the realm.
6Montesquieu, however, along with a few rare contemporary authors like president Hainault of Louis Adrien Le Paige, expresses very different ideas. First, if he sometimes mentions the codification it is not at all to designate, as was thought in his time, the drawing up of a single document bringing together, for a given domain (civil, commercial, or penal law) all the rules of law in force in a single realm. What Montesquieu calls “code” is the redaction of customs that took place in the sixteenth century and which precisely, as we know, consecrated and make official the mosaic of local juridical practices: “The customs were written down. That was all very reasonable: […] when, in a country, there is a large number of practices, it is much simpler to write them all in a code than to oblige the individuals to prove each one” (“On fit rédiger par écrit les coutumes. Tout cela était bien raisonnable : [...] quand, dans un pays, il y a un très grand nombre d’usages, il est plus aisé de les écrire tous dans un code que d’obliger les particuliers à prouver chaque usage”, EL, XXVIII, 44). Besides, the author explains the formation, evolution and the crystallization of the “customs of France” and their “prodigious diversity” (EL, XXVIII, 45). Coutumes de France, and not droit français! For even if the written customs went back to the end of the Middle Ages, there was no reason to modify them or force them into the constraint of uniformity. Book XXIX (“On the manner of composing laws”) contains a very short chapter 18 intitled “On ideas of uniformity” in which the author remarks that if such ideas have sometimes influenced “great minds” like Charlemagne, they “inevitably strike small ones”. His conclusion: “When the citizens obey the laws, what does it matter whether they obey the same one?” (“Lorsque les citoyens suivent les lois, qu’importe qu’ils suivent la même?”)
7Any reduction to unity is thus impossible. It was impossible in feudal times because of the dilution of power. Montesquieu takes as his example the unrealistic Établissements de Saint Louis (in the sense of laws) which he considers a “code”, in reality an anonymous doctrinal codification of customary practices and principles of written law, dating from the 13th century. These Établissements “were born, aged and died in very little time” (“naquirent, vieillirent et moururent en très peu de temps”) because their publication brought about a desire “to overturn in a moment all the individual laws under which people lived in each place in the realm” (“vouloir renverser dans un moment toutes les lois particulières sous lesquelles on vivait dans chaque lieu du royaume”, EL, XXVIII, 37). But the thing itself, even if it has become easier to realize, is not more desirable once monarchical sovereignty has been stabilized. The projects for elaboration of a French law – Montesquieu is careful not to use those words – are swept away in two sentences: “To make a general customs of all the separate customs would be ill-advised, even in our times, when princes everywhere find only obedience. For if it is true that one ought not change when the disadvantages equal the advantages, even less ought it to be done when the advantages are small and the disadvantages huge” (“Faire une coutume générale de toutes les coutumes particulières, serait une chose inconsidérée, même dans ce temps-ci où les princes ne trouvent partout que de l’obéissance. Car, s’il est vrai qu’il ne faut pas changer lorsque les inconvénients égalent les avantages, encore moins le faut-il lorsque les avantages sont petits et les inconvénients immenses”, ibid). Let us remark however that Montesquieu’s hostility to uniformity does not concern all domains of law. Some of them, as we have said, had already become general legislative texts applicable to the whole of the realm, such as the ordonnances of Louis XIV governing civil and penal procedures. Penal law was itself largely unified. In these matters, there was no question of going back, but of improving the existing system. It was in the very broad domain of private law stricto sensu, of “civil law”, most of which were governed by customs, that a reduction to unity was to be banned.
8This position of Montesquieu’s, original with relation to dominant Enlightenment thought, is not surprising. Everyone knows that for him laws being “necessary relations that derive from the nature of things” (“les rapports nécessaires qui dérivent de la nature des choses”, EL, I, 1), they are forged by history and determined by the milieu – the climate – in which they come into being. Even were two human groups neighbors by geography and sharing the same ethnic origin, their practices may be different and it is impossible to extrapolate from one to the other. That is the flaw of the method into which fell the abbé Dubos, who amalgamates the law of the Ostrogoths with that of the French: “Monsieur l’abbé Dubos is wrong […] to use what happened in Italy and the part of Gaul that was under Theodoric, to tell us what the practice among the Franks; these are things that must not be confused […] far from our being able to say that something was customary among the Franks because it was among the Ostrogoths, we have on the contrary good cause for thinking that something practiced by the Ostrogoths was not practiced among the Franks” (“Monsieur l’abbé Dubos a tort [...] d’employer ce qui se passait en Italie et dans la partie de la Gaule soumise à Théodoric, pour nous apprendre ce qui était en usage chez les Francs ; ce sont des choses qu’il ne faut point confondre [...] bien loin qu’on puisse dire qu’une chose était en usage chez les Francs parce qu’elle l’était chez les Ostrogoths, on a au contraire un juste sujet de penser qu’une chose qui se pratiquait chez les Ostrogoths ne se pratiquait pas chez les Francs”, EL, XXX, 12).
9Similarly, we must not seek to acclimatize the practices of one country in other, nor to transpose them from one period to another. That was however the attitude of many jurists, especially in southern France, which saw in Roman law the model of rational, universal legislation. Nor is there any similar model in the matter of customs. All customs are equal since they are adapted to the countries and peoples which they govern; one is not superior to another. Montesquieu thus distinguishes himself from most customs jurists who saw in the reformed Paris customs of 1580, extensively annotated, the “master customs”, the maximum of generality, the most accomplished expression of what could be a sketch of French law. There is no reason for the customs of the capital city, which moreover covered a very limited territory, to become that of the entire country.
10Such a respect of the juridical traditions is not determined solely by “the nature of things”, it is also the condition for safeguard of liberties. The multiplicity of individual statutes is in reality for Montesquieu a rampart against absolutism and the centralization that it engenders, for arbitrariness results from uniformity. The single law for a nation is that of the despote, whereas the diversity of practices is one of the components of a “moderate government”, in other words of the temperate monarchy which has his preference: “The monarch, who knows each of his provinces, can establish various laws or allow different customs, but the despot […] governs with an unbending will that is everywhere the same; all becomes even under his feet” (“Le monarque, qui connaît chacune de ses provinces, peut établir diverses lois ou souffrir différentes coutumes, mais le despote [...] gouverne par une volonté rigide qui est partout la même ; tout s’aplanit sous ses pieds”, EL, VI, 1). In these conditions, any colonist wwho does not respect the culture of conquored peoples is a despot: “I would as soon say that the right to slavery comes from the contempt one nation conceived of another, based on the difference of customs” (“J’aimerais autant dire que le droit de l’esclavage vient du mépris qu’une nation conçoit pour une autre, fondé sur la différence des coutumes”, EL, XV, 3).
11If with respect to the colonial phenomenon such a attitude is striking in its originality, such is not the case for the way he views the formation of a national law. Must one then change nothing? Are the “laws” forged in the obscure time of the Middle Ages immutable? Would the famous theory of climates not lead to juridical permanence? Montesquieu is certainly not opposed to every intervention of the legislator, including the domain of private law, but only in order to avoid contradictory jurisprudences. Rejecting the notion of French law, he led a rear-guard action against the idea of national juridical unity that was soon to prevail.
Voltaire, Dialogue entre un plaideur et un avocat, 1751, in Œuvres complètes, Oxford: Voltaire Foundation, t. 32A, 2006 (ed. Mark Waddicor).
Rousseau, Considérations sur le gouvernement de Pologne [A], in Œuvres philosophiques et politiques, Paris: Seuil, 1971, t. III (ed. Michel Launay).
Jacques Vandeerlinden, Le Concept de code en Europe occidentale du XIIIe au XIXe siècle: essai de définition, Bruxelles: Éditions de l’Institut de sociologie, 1967.
Jean Bart, Histoire du droit privé de la chute de l’Empire romain au XIXe siècle, Paris, Montchrestien, 1998; 2nd edition, 2009, p. 129-142.
― “Montesquieu et l’unification du droit”, in Le Temps de Montesquieu, Michel Porret and Catherine Volpilhac-Auger dir., Geneva: Droz, 2002, p. 137-146.