1The very history of the Commentaire sur “L’Esprit des lois” is very murky. Tracy (1754-1836) wrote it around 1806-1807 between two chapters of the Traité de la volonté et de ses effets [“Treatise on will and its effects”], the first part of which appeared in 1815. Certainly concerned with getting around imperial censorship, and a great admirer of Jefferson, he addressed his manuscript to him, who judged it very favorably and worked on his translation and its publication in 1811 in Philadelphia (Chinard, 1925, p. 67 and 85-86). A French translation of this translation then appeared unsigned in Liège in 1817, and was reprinted in Paris, still anonymously, by Delauney in 1819. The same year, Tracy took the initiative for a new edition, this time official, again in Paris by Desoer; but it was in reality the same translation which had simply been modified in minor ways, principally in the notes. Meeting with certain success from the republican side, the work went into a seventh edition in 1828 (Welch, p. 156). The manuscript is preserved at the Tracy W. McGregor Library at the University of Virginia (Kennedy, 1978, p.168, note 6).
2Tracy’s enterprise doubtless had immediate political implications – against a monarchist utilization of Montesquieu, against Napoleonian authoritarianism… — but the main point was to seek support in L’Esprit des lois to elaborate something like a finally scientific jusnaturalism, which might help durably stabilize advances of the Revolution. True “social science”, as science, must know how to stick to the facts, as Montesquieu had intended, and do away with the wordy and perilous abstractions of a “contractualism” that arbitrarily attributes rights to a subject that is fictional in the worst sense of the term, man in the state of nature: “I only wish, following Montesquieu’s example, to state what is” (Desoer ed., 1822, p. 10). But let this not lead us into error: the facts in question are not those which are “either minute, or problematic, or ill detailed, which Montesquieu goes looking for in the most suspect authors, or in the least known countries, to make them serve as evidence for his principles or reasonings”, and that “in a multitude of short, disconnected chapters” (ibid., p. 111 and 194). No the long hair of the Frankish kings is of no interest and it is better to stick to the meaningful facts to embed them in an essentially continuous argument: “it is not the abundance of ideas that should be sought, but their rigorous interconnection and their uninterrupted succession without gaps” (“[...] ce n’est pas l’abondance des idées qui est à rechercher, mais leur sévère enchaînement et leur suite non interrompue et sans lacunes”, Traité de la volonté, I, 7; 1994 ed., p. 209).
3In short, Montesquieu escaped the gratuitous principles of jusnaturalism only to lose himself in the unprincipled erudition of the antiquarians. This is the alternative that has to be surpassed by returning to the original facts, those of physiology: “For any philosophy having for object the knowledge of man must be supported by the constant facts which we owe to the study of physiology” (II, 11, p. 395); and from there, the determination of the “best regime founded on nature and reason” must become possible (Commentaire, p. 40). Nothing shows better how Tracy misses the question proper to Montesquieu, which one could call the question of the detailed institution: in function of which laws, in other words what necessary relations, have men de facto invented laws, in other words rules, so diverse, that stand in for the natural relations of equity to which they have not managed (or not been able) to remain subject? And Tracy completely overlooks this inquiry because he reactivates that of Hobbes, of legitimate obedience: not “why was such and such a rule introduced?” but “who must obey whom?” In fact, the best regime is indeed that in which the configuration of powers is such that no case can be found “in which each citizen does not know whom to obey” (ibid., p. 184). And then, L’Esprit des lois can no longer appear, in effect, as anything but a perpetual digression.
4That is understandable: if the primary question is that of obedience owed, then the law must be seen again as legitimate “commandment” and Montesquieu could only go awry from the beginning by searching his point of department in “necessary relations”. In the proper sense, law is indeed “a rule prescribed for our actions by an authority which we regard as possessing the right to make that rule”, and it is only in the figurative sense that we speak of “laws of nature”, as if they had ordered that things take place as they do (ibid., p. 1-2). Man having a certain nature, that is to say obeying naturally the laws of physiology, we can and should deduce just positive laws from that. Their true “spirit” is then located in the correctness of this deduction or, if we prefer, in the conformity of the positive laws with the true nature of man (p. 5).
5The whole Commentaire thus results from a torsion of the principle and that is why it presents itself, will it or not, in the form of a compromise. Tracy of course means to distinguish the “treatise”, which goes deductively from the known to the unknown, from the “commentary”, which would have no other pretension than to follow Montesquieu’s work step by step, humbly, to winnow the grain from the chaff with the sole support of the “facts” (ibid., preliminary reflections). In reality, that is not at all the case; it is not about giving the reasons, but also indeed to justify (EL, XVI, 4) – to show what laws are absolutely just because correctly inferred from the authentic nature of man. And that involves an overall recomposition of L’Esprit des lois which would advance as proof the two great discoveries thought to have taken place since then: that of pure representative government (ibid., 20) and that of political economy (Traité, I, 9, 280, note 1). Because of that, a careful distinction must be made between a first part (books I-XII) devoted to the formation and distribution of powers, and a second part (Books XIII-XXXI) having for object the formation and distribution of wealth (Commentaire, p. 197 and 355). Insofar as man is a being essentially animated by the pursuit of happiness, the first problem, that of legitimate obedience, ought to be subordinated to the second, that of optimal enjoyment: “For, it cannot often enough be repeated, freedom is happiness; economic science is a considerable part of social science; it is even its goal since one wants the society to be well organized only so that enjoyments […] will be more abundant, more complete, more tranquil” (ibid., p. 253).
6Two concepts then become major which Montesquieu had largely ignored: sovereignty and labor. It is, indeed, only if one respects the “principle of national sovereignty” that one can best permit everyone to develop his productive faculties. Naturally, it immediately becomes apparent that the classification of regimes proposed by Montesquieu is inadequate. To the tripartite schema republic/monarchy/despotism Tracy substitutes the couple national/special. “National” governments, as their name indicates, rest on “the principle that all rights and all powers belong to the entire body of the nation”; all the rest are “special”, all those “where other legitimate sources of rights and powers than the general will are recognized” (ibid., p. 10-12).
7This is to say, like the pseudo-Helvétius, although Tracy denies it, that there exists only two types of governments, “the good ones and the bad” (Correspondance, in Montesquieu, Œuvres complètes, André Masson dir., t. III, 1955, p. 1105 ; Commentaire, p. 9). And it is also to return to Aristotle since each government splits, according to whether it is founded on the general will or not, into a legitimate (national) form and a perverted (special) one: a monarchy, for example, can respect or not the principle of national sovereignty.
8In any case, it is not the English monarchy that will best respect it and Tracy addresses to it three objections: first, it allows a hereditary monarch; second, it places part of the legislative power in the hands of a hereditary aristocracy; third, it is corrupt, the king’s executive power having in reality subordinated the others (XI, 1). That is a criticism that Jefferson was particularly to appreciate in his struggle against the American partisans of an English-style regime (Chinard, 1925, p. 58). His reaction will be much more reserved, on the other hand, to the description proposed next by Tracy of the best government, which prescribes a unicameral legislature, a plural executive and, to regulate the action of these two forces, a “conservative body” – a sort of keystone of which the very principle denies the virtues of equilibrium, in other words of a purely immanent regulation of the constitutional authorities (EL, XI, 6 ; Robert Derathé ed., Paris: Classiques Garnier, 1973, t. I, p. 177; Commentaire, XI, 2).
9The great maxim of political economy is formulated in this way: “commerce is all of society, as labor is all of wealth” (ibid., p. 287). Commerce is all of society because society is defined as a continuous network of exchanges – and that is of course tantamount to saying that religion appears a contrario as a purely private affair, that it no longer contributes in any way to the social bond (p. 351-352). To intensify that bond, it is consequently necessary to favor trade in the broadest sense of the word, but first of all interior trade, scandalously neglected by Montesquieu, and to which exterior trade, which is homogenous to it, is a simple addition (p. 309). That said, trade effectuates a change of place as the manufacturer a change of form and the farmer a change of nature (p. 295-296): all three are equally “producers of utility” and the genuinely sterile class is that of the idle landowners (Traité., I, 2, p. 128). If labor is all of wealth, that is therefore because, as a producer of utility, it increases the overall sum of enjoyment which must then be distributed fairly equitably. And the true spirit of law has decidedly little to do with Montesquieu’s.
Destutt de Tracy, Commentaire sur “L’Esprit des lois”, Paris: Delauney, 1819 (reprint Université de Caen, 1992); Paris: Desoer, 1819 (reprint Geneva: Slatkine, 1970); re-edition Paris: Desoer, 1822. http://books.google.fr/books?hl=fr&id=RUVPAAAAcAAJ
Destutt de Tracy, Traité de la volonté et de ses effets (1815), Paris: Fayard, 1994.
Augustin Thierry, Review of the Commentaire, Le Censeur Européen, 1818, t. VII, part II, p. 191-260. http://books.google.fr/books?id=aEgBAAAAQAAJ
— (seconde) Recension du Commentaire, Le Censeur européen, 17 September 1819, p. 3 ; reprinted in Corpus, revue de philosophie 26-27 (1994), p. 149-156.
Gilbert Chinard, Jefferson et les Idéologues, Paris: PUF, 1925, ch. II.
Adrienne Koch, The Philosophy of Thomas Jefferson, New-York: Columbia University Press, 1943, ch. XVI.
Pierre-Henri Imbert, Destutt de Tracy, critique de Montesquieu, Paris: Nizet, 1974.
Emmett Kennedy, Destutt de Tracy and the Origins of Ideology, Philadelphia: American Philosophical Society, 1978, 167-183.
David Carrithers, “Montesquieu, Jefferson and the fundamentals of eighteenth-century republican theory”, The French-American Review, VI, 2, 1982, p. 160-188.
Cheryl B. Welch, Liberty and Utility: the French Ideologues and the transformation of liberalism, New York: Columbia University Press, 1984.
Brian W. Head, Ideology and Social Science: Destutt de Tracy and French liberalism, Dordrecht: M. Nijhoff, 1985, p. 168-182.
Jean Goldzink, “Destutt de Tracy et Montesquieu”, Scepticisme et exégèse: hommage à Camille Pernot, ENS Fontenay/Saint-Cloud, 1993, p. 275-280.
Augustin Thierry, review of the Commentaire (1818), reprinted in Corpus: revue de philosophie 26-27 (1994), p. 149-156.
Bertrand Binoche, La Raison sans l’Histoire, Paris: PUF, 2007, ch. IV.