[Translator’s note: Liberté can mean ‘liberty’ or ‘freedom’ in English, depending on context. Since ‘liberty’ usually applies to states rather than individuals, and the emphasis in Montesquieu is usually on how people experience freedom (both politically and as free will), liberté has been translated throughout this article as ‘freedom’.]
1To what degree can we consider that there is in Montesquieu a unified concept of civil freedom, political freedom, “philosophical freedom” (the exercise of an autonomous will)? Did he want to propose one or make it an object of research? We know how in the Défense de L’Esprit des lois he was to reject and challenge the accusation of “Spinozist” fatalism, as a diversified and possibly hierarchized conception of the order of things, between fixed laws of movement subject to rules as rigid as the “fatality of atheists” and faculty of intelligent beings to self-determination. That implies an examination of his work beginning with the primary questions, even if for him they were only a starting point.
2Montesquieu never consecrated this “philosophical freedom” nor did he dismiss it as primordial value. He knew very well the difficulty of reconciling its effective existence with a form of global first philosophy. Usbek (LP 67 ) was repeating a traditional criticism of the Leibnizian system, and risking bold reasoning on the soul “worker of its own determination”, and its improbable conciliation with divine prescience. For there is at least a doubt before the problem of God’s foreknowledge of things that belong to the “determination of free causes”. He had to more or less bracket the matter… It remains none the less that a “philosophical freedom” would always constitute for Montesquieu a limit that he would always have to take into account, and that in certain extreme cases the original experience which it represents would be inseparable from our social existence. One of the paradoxes of political freedom would be that we can appreciate its existence only insofar as it resembles philosophical freedom (EL, XI, 2 and XII, 2), even if “philosophical freedom” sometimes seems to manifest itself only by a simple belief of individuals in their autonomy, and if the conviction of enjoying can assume quite diverse forms. In the Pensées (nos. 174, 175, 176), Montesquieu happened to speak of civil freedom in connection with slavery in Rome – of the enjoyment of a status of free person that protects us from servitude – in terms that made it a sort of implication of a principle of absolute freedom, having the value of a primordial existential choice. In L’Esprit des lois, where he returns to these texts while suppressing their most radical part, and the praise of Spartacus, and where he must analyze a “right to slavery”– its “rationality” – he stops short of this principle, which does not mean that he denies it. What he does in the long run (XV, 8) is to see how the surpassing of a “natural servitude” could, thanks to mechanization, could be inscribed in the nature of things.
3It is out of the question, in any event, that the reference to primary philosophical freedom could lead directly to realizable liberating ambitions. It is true that natural freedom is “the object of the civil order of savages” (XI, 5). But “natural freedom” in terms of law is but the ability to dispose of one’s person and property (which is like a rather idyllic vision of “civil order of savages”.) Since it is the manifestation of a genuinely free will, it is impossible to neglect another pole of Montesquieu’s thought, rather hidden or at least discrete, that refers the freedom of the subject in the political sphere back to a profitable artifice, which depicts even the conviction of a “true” political freedom as relative ignorance and happy illusion. We see one comparison return insistently in the Pensées (nos. 423, 874, 943: “A free government can be compared to a great net in which the fish roam about and do not think they are caught” (“Un gouvernement libre peut être comparé à un grand filet dans lequel les poissons se promènent et ne se croient pas pris”, no. 874; article crossed out on the manuscript). In another passage (no. 943), two metaphors are combined in rather disquieting fashion: “An Ancient compared laws to spider webs which, being only strong enough to stop flies, are broken by birds. I would compare good laws to these great nets in which fish are caught, but think they are free, and the bad ones to news in which they are held so closely that they sense right away they are caught” (“Un ancien a comparé les lois à ces toiles d’araignée qui, n’ayant que la force d’arrêter les mouches, sont rompues par les oiseaux. Pour moi je comparerais les bonnes lois à ces grands filets dans lesquels les poissons sont pris, mais se croient libres, et les mauvaises à ces filets dans lesquels ils sont si serrés que d’abord ils se sentent pris”). One could say that concerns only a relative political freedom arranged by the laws. That cannot be thought wholly convincing. If we place these aphorisms in relation with the developments on the freedom of the peoples of the North, who created the instruments of the struggle against servitude (XVII, 5) and even with those on the exercise of a “feudal freedom”, what appears, even if that too is akin to conceptions that can be associated with political and ideologically limited choices, aristocratic and close to the “Germanists”, is the recurrence of the idea of a privileged vocation not of liberators, but of introducers of a categorical refusal of any principle of subservience… Will we never obtain anything but devalued freedom?
4Thus we see that it would be misleading at the least to pretend to survey Montesquieu’s thought as a sort of edifice devoted to political freedom, a freedom – our freedom – which would recuperate the merits and dignity of philosophical freedom, even if it is thinkable only through that connection. But it remains nonetheless that an imprint, or better, something like a principle of fecundity of the paradoxical original situation, at the very basis of any properly political reflection, whatever the relativity of things. At the heart of what simultaneously founds and reveals, at the moment of Romans (in chapters VIII and IX first) a free community – the republican “model” – we see the outline of the conscience of dependency of all freedoms with relation to what passes for threatening them with a shipwreck. Freedom exists – can be achieved – up to a point only in function of a breaking of order, even if it is conceivable ultimately only in obedience to the laws, and moreover, it can be obtained only by making a commotion (Pensées, no. 577). Whence this magnificent aphorism: “Every time we see everyone tranquil in a state that calls itself a republic, we can be sure there is no freedom in it” (“Toutes les fois qu’on verra tout le monde tranquille dans un État qui se donne le nom de république, on peut être assuré que la liberté n’y est pas”, Romans, IX). In a sense, that leads to the necessity of multiple parties. But that goes well beyond this mediocrity.
5It is nonetheless necessary to put some emphasis on the center. Montesquieu very methodically founds a system of freedom, but one inseparable from a thought requiring limits to the notion of political freedom in that very system. The words “system concerning freedom” are his own, in a passage of the Pensées (no. 907) where he goes down the list of all the major works of political philosophy with which a confrontation is necessary. But in line with his Roman itinerary, a direction of theoretical order is already set: “A free government, in other words one that is always agitated, cannot be maintained if not by its own laws that are capable of correcting it” (“Un gouvernement libre, c'est-à-dire toujours agité, ne saurait se maintenir s’il n’est par ses propres lois capable de correction”, Romans, VIII). If we refer back to the principles of those that have tried to define political freedom before him, the difference of viewpoint and orientation is quickly apparent. Locke writes, in chapter IV of the second Treatise of Government: “Freedom of men under government is having a standing rule to live by, common to everyone in the society in question, and made by the legislative power that has been set up in it; a liberty to follow one’s own will in anything that isn’t forbidden by the rule […].” (“La liberté des hommes soumis à un gouvernement consiste à posséder une règle permanente à laquelle se conformer, une règle commune à tous les membres de la société et instituée par le pouvoir législatif qui s’y trouve établi. C’est la liberté de suivre ma propre volonté toutes les fois que cette règle garde le silence […]”, Traité du gouvernement civil, p. 88). Montesquieu is in complete agreement with these principles. Political freedom is first “doing what one ought to wish to do” and “not being forced to do what one ought not to wish”; and with reference to the institutions and what founds society, “freedom is the right to do whatever the laws allow; and if a citizen could do what they forbid, there would be no more freedom because the others would have that same power” (“la liberté est le droit de faire tout ce que les lois permettent; et si un citoyen pouvait faire ce qu’elles défendent, il n’aurait plus de liberté parce que les autres auraient tout de même ce pouvoir”, XI, 3). However, for him the question which remains entire is what “correction” a “government” is capable of that lived off the antagonisms that animate it.
6Therein becomes apparent the originality of the “system”. There is no sufficient condition to institute or guarantee political freedom, and there is no way to set up a rigorously defined catalogue of the necessary conditions. One could not include obligatorily any of the conditions that seemed indispensable to one people or another: the right to insurrection or the possibility of remaining faithful to one’s customs, the ability to elect a chief and, principally, freedom as the proper character of democracies, according to the most widespread prejudice. (“The power of the people has been confused with freedom of the people” [“on a confondu le pouvoir du peuple avec la liberté du peuple”], XI, 2). Political freedom would have to be conceived on two bases. First, it is impossible to link freedom necessarily and by principle to a political and social system, in the sense that its organization – its nature – would imply freedom. Next, there is no need for any “constitutionalist” illusion: “It can happen that the constitution is free, and the citizen will not. The citizen can be free and the constitution not be” (“Il pourra arriver que la constitution sera libre, et que le citoyen ne le sera point. Le citoyen pourra être libre, et la constitution ne l’être pas”, XII, 1). Better yet: “moderation”, a balance of powers and social forces, does not guarantee anything for certain. There is a necessary connection between moderation and freedom, but that connection is alone insufficient. Freedom exists in modern states “only if power is not abused” (XI, 4). Fragments nos. 884-889 (“On political freedom”) in vol. II of the Pensées, a possible remnant of the project for a separate work devoted to the question, confirm these principles very early.
7How then to think about this political freedom? It is situated between two poles, which concern society as a whole and not at first individuals, a positive pole, general obedience of the laws, and a negative pole, the calculated obstacles placed in the way “by the disposition of things” of the abuse of power. Hence two conjoint modes of its existence: the relation to the constitution (book XI) and the relation with the citizen (XII), and especially what links the two: it is in that disposition of the fundamental laws (XI) that we can possibly find the best support for assuring the citizen of his “security” by protecting him as far as possible from all the forms of incrimination which power can use against him (XII). But there again, there can be no purely institutional problematic. The disposition of the fundamental laws is desirable for political freedom. “But in the relation to the citizen, mores and manners, received examples can give rise to it; and certain civil laws favor it” (“Mais dans le rapport avec le citoyen, des mœurs des manières, des exemples reçus peuvent la faire naître, et de certaines lois civiles la favoriser […]”, XII, 1). “In monarchies there are points and moments of freedom” (“Il y a dans les monarchies des points et des moments de liberté”, Pensées, no. 751).
8If freedom remains a fundamental value, and is “that good that makes one enjoy the other things” (Pensées, no. 1574), perhaps it is only the fruit of a complex cultural process subject to many risks, to arrive where a state in which “man does no violence to man”, even by means of the law. It is not even certain that it can be the object of a universal claim: “Freedom itself has appeared unbearable to peoples who were not used to enjoying it” (“La liberté même a paru insupportable à des peuples qui n’étaient accoutumés à en jouir”, XIX, 2). Three considerations, three conditions are at the center of its possibility of appearance. Chapter 27 of book XIX exposes at length the social and historical conditions of English freedom, whether they are modes of social life, effects of the constitution on the mores, of the adaptation or even the creation of a society to the conditions of political freedom. Inversely, forms of sociability exclude the appearance of political freedom, principally those that join in a single code and a single discipline all the aspects of social life, laws, mores, and manners (XIX, 16-17). Finally, well beyond the separation of powers, what guarantees the citizen’s freedom as a man derives from the progress of “knowledge”, which is not an effect of the benevolence of power or simple speculation: “Knowledge which one has acquired in some countries and which one will acquire in others, about the surest rules one can have in criminal judgments, interest humankind more than anything in the world. It is only on the practice of that knowledge that freedom can be founded […]” (“Les connaissances que l’on a acquises dans quelque pays et que l’on acquerra dans d’autres, sur les règles les plus sûres que l’on puisse tenir dans les jugements criminels, intéressent le genre humain plus qu’aucune chose qu’il y ait au monde. Ce n’est que sur la pratique de ces connaissances que la liberté peut être fondée […]”, XII, 1).
Charles Eisenmann, “L’Esprit des lois et la séparation des pouvoirs”, in Mélanges Carré de Malberg, 1933, p. 165-192, reprinted in Cahiers de philosophie politique de l’Université de Caen, no. 2-3, 1984-1985.
Robert Shackleton “Montesquieu, Bolingbroke and the Separation of Powers”, French Studies, 1949, p. 25-34.
Lando Landi, L’Inghilterra e il pensiero politico di Montesquieu, Padua: CEDAM, 1981, (part three).
Catherine Volpilhac-Auger, Tacite et Montesquieu, SVEC 232 (1985), chapters VI-VII.
Georges Benrekassa, Montesquieu, la liberté et l’histoire, Paris: UGE, 1985.
Paul Hoffmann, Théories et modèles de la liberté au XVIIIe siècle, Paris: PUF, 1996.
Sergio Cotta, “Montesquieu e la libertà politica”, in Leggere “l’Esprit des lois”: Stato, società e storia nel pensiero di Montesquieu, ed. Domenico Felice, Naples: Liguori, 1998, p. 103-136.
Céline Spector “L’Esprit des lois de Montesquieu: entre libéralisme et humanisme civique”, Revue Montesquieu 2 (1998), p.139-161. http://montesquieu.ens-lyon.fr/spip.php?article157
Lucien Jaume, La Liberté et la Loi: les origines philosophiques du libéralisme, Paris: Fayard, 2000.
Peter Schröder, “Liberté et pouvoir chez Hobbes et chez Montesquieu”, in Le Temps de Montesquieu, Michel Porret and Catherine Volpilhac-Auger ed., Geneva: Droz, 2002, p. 147-170.
Libertà, necessità et storia: percorsi dell’“Esprit des lois” di Montesquieu, Domenico Felice ed., Naples: Bibliopolis, 2003.