1The concept of civil law has little attracted the attention of specialists of Montesquieu’s thought, even the jurists, no doubt because the expression has become banal since the Napoleonic codifications and does not, in appearance, raise difficulties of interpretation. However, in his writings, the word and its epithet are far from anodine. The originality of use lies, on the one hand, in the modernity of the meaning given to them, and on the other in the repeated affirmation of the autonomy of civil law relative to other laws.
2For centuries, no more was done than to translate literally the ancient terms jus civile, which made of “civil law” the synonym of Roman law. Originally, the expression included all the juridical norms flowing from the law or from doctrinal interpretation of the law. Jus civile and Jus Quiritium then were synonyms. In the classical period, this first branch is opposed to the law deriving from the jurisdictional activity of the magistrates who intervene by means of their edicts, as system qualified as jus honorarium (deriving from the function), in French “droit honoraire” or “droit prétorien”. In the course of the early centuries of our era, the two sources tended to be conflated, whereas since the expansion of the Roman city and the multiplication of its relations with other cities appeared the notion of jus gentium, “droit des gens” which, by hypothesis, was not restricted to citizens. Finally, beginning with the Late Empire, when Roman citizenship was conferred on almost all inhabitants of the lands dominated by Rome, and the sole living source of law became the extended law as the will of the emperor, “civil law” was assimilated to the whole of Roman law. Whence the title Corpus juris civilis (cf. the Collectio juris assembled by Montesquieu) given to compilations of all the current juridical texts, conferring on them the force of law, drawn up on the initiative of the emperor Justinian in the 6th century.
3Meanwhile, with the collapse of the Western Roman Empire and the development of a Church that pretends to universal status and sets juridical rules applicable to its faithful, a new system, elaborated on the basis and model of Roman law, takes shape in late antiquity and even more during the Middle Ages: canon law, of which the texts were also finally collected into a corpus, the Corpus juris canonici. The two collections were studied in the universities whose doctors were qualified in utroque jure, in both corpora of law. It is understandable, under these conditions, that during almost the entire Ancien Régime, “civil law” designated Roman law.
4It works differently in Montesquieu. His conception of civil law is both more precise – as for the normes included under that label – and much broader, since it is not simply a matter of the law of an ancient empire, however extended, and its partial survival in western Europe, but of each of multiple juridical systems that exist in the whole world, each constituted human group creating a civil law, “the civil law of each society, by which a citizen can defend his property and life against every other citizen” (“le droit civil de chaque société, par lequel un citoyen peut défendre ses biens et sa vie contre tout autre citoyen”, EL, XXVI, 1). In other words, civil law includes the rules that govern the relations of all citizens amongst themselves, as opposed to the “political law” (or public law) that determines “the relations between those who govern and those who are governed” (“les rapports qu’ont ceux qui gouvernent, avec ceux qui sont gouvernés”, EL, I, 3). On the one hand, the end is individual interests, in the other the public good. That being the case, the objective of civil norms, as moreover of the penal laws which are classified separately, clearly appears: the preservation of the life and property of each citizen. The insistence with which Montesquieu evokes “security” and “property” which, as we know, will be placed alongside liberty among the natural and unalienable rights of man (art. 2 of the Declaration of 26 August 1789) has rightly been underscored (Larrère, 1999). On the civil level, the instruments of their safeguard are found in the rules of the law of property and the law of obligations.
5What then of the law of persons, of the family? Montesquieu seems to put them in a separate category, that of “domestic law, which derives from the fact that each society is divided into various families, which require a particular government” (“droit domestique, qui vient de ce qu’une société est divisée en diverses familles, qui ont besoin d’un gouvernement particulier”, EL, XXVI, 1). But elsewhere he gives one to understand that it is above all among the non-sedentary peoples without agriculture that customs prevail over laws, for there the legislator is supplanted by “elders who remember things past and have great authority” (“les vieillards qui se souviennent des choses passées et ont une grande autorité”, EL, XVIII, 13). In more evolved societies, in contrast, whatever touches on the relations between spouses, filiation, parent-child relations, etc., indeed depends on civil laws.
6Ultimately Montesquieu’s categories reflect the modernity of his thought. His conception of civil law is close to that which will be expressed by liberal doctrine beginning with the Revolution. Moreover, the autonomy of that law governing the “private sphere”, with relation to the other branches of the juridical order, is affirmed. As for natural law, it is not for us to specify what Montesquieu meant by that; let us simply recall that for him the discords between civil laws and natural law, to use his own terms (EL, XXVI, 3) are not rare. Furthermore, there are “cases where on can judge by the principles of civil law by modifying the principles of natural law” (“cas où l’on peut juger par les principes du droit civil en modifiant les principes du droit naturel”, EL, XXVI, 5, chapter title). Such is the case of the obligation placed on children to aid their parents in case of need. In Athens, a law of Solon exonerated them of this duty in three circumstances: when the mother’s life was not commendable and consequently paternity was doubtful, when the father “had exposed the shame [of his children] to infamous dealings” (“avait exposé la pudicité [de ses enfants] par un trafic infâme ”), or when he had not given them a trade whereby to earn a living. For Montesquieu, natural law and civil law coincide in the first two cases, but not in the third, where the obligation to educate can come only from a “civil mandate” (règlement civil).
7Civil law is autonomous with respect to natural law, and also to canon law and, more generally, the “laws of the region”. The spiritual and temporal must never be confused. The principles that apply to marriage demonstrate this well. Montesquieu will not up to this point laicize the union of man and woman, which remains in his eyes a sacred act, but it is also an act that bears the stamp of the most everyday humanity. We recognize there the distinction, which would soon be consecrated by law, of the marriage-sacrement and the marriage-contract. “The consequences of this union with respect to property, the reciprocal advantages, all that relates to the new family and to the one from which it springs and the one that will arise form it: all these are the province of civil laws” (“Les conséquences de cette union par rapport aux biens, les avantages réciproques, tout ce qui a du rapport à la famille nouvelle, à celle dont elle est sortie, à celle qui doit naître : tout cela regarde les lois civiles”, EL, XXVI, 13). Even when the separation of property is involved for cause of adultery, civil law is quite right to reserve the possibility to require it solely for the offended husband, and not for each of the spouses as the Church’s principles would have it. Among almost all peoples, the consequences of the man’s or woman’s adultery are envisaged in different manner by the civil laws which, and rightly so, “have required of women a degree of reserve and continence which it does not demand of men” (“ont demandé des femmes un degré de retenue et de continence qu’elles n’exigent point des hommes [...]”, EL, XXVI, 8).
8Finally, among the “positive laws” which, in a given society, emanate from the authority which exercises the “legislative power”, one must further distinguish two types of laws, political and civil, for their purposes are different: “the first laws secured freedom [for men], the second ones property” (“Ces premières lois leur [aux hommes] acquièrent la liberté, les secondes la propriété”, EL, XXVI, 15). Although they react to each other, public law and civil law are indeed separate. However, Montesquieu seems himself to take great liberties with this distinction. But he explains himself when he exposes the plan followed in L’Esprit des lois: “I have not separated political and civil laws: for, as my subject is not the laws, but the spirit of law, and as this spirit consists in the various relations that laws may have with various things, I had less to follow the natural order of laws than that of these relations and these things” (“Je n’ai point séparé les lois politiques des civiles : car, comme je ne traite point des lois, mais de l’esprit des lois, et que cet esprit consiste dans les divers rapports que les lois peuvent avoir avec diverses choses, j’ai dû moins suivre l’ordre naturel des lois, que celui de ces rapports et de ces choses”, EL, I, 3). On the other hand, the practicing jurist, the analyst of laws, even the legislator… are obligated to respect the two domains; for example with respect to expropriation for reasons of public utility (see “Property / succession”). Similarly, succession to the throne “the object of which is the preservation of the state”, does not obey the same principles as the devolution of the property of a simple citizen “of which the object is individual interest […]. It is ridiculous to pretend to decide on rights of kingdoms, nations or the world, by the same maxims by which are decided between individuals on a right to a gutter, to borrow an expression from Cicero” (“qui a pour objet le bien et la conservation de l’État » n’obéit pas aux mêmes principes que la dévolution des biens d’un simple citoyen « qui a pour objet l’intérêt des particuliers [...]. Il est ridicule de prétendre décider des droits des royaumes, des nations et de l’univers, par les mêmes maximes sur lesquelles on décide entre particuliers d’un droit pour une gouttière, pour me servir de l’expression de Cicéron”, EL, XXVI, 16).
Bertrand Binoche, Introduction à L’Esprit des lois de Montesquieu, Paris: PUF, 1998.
Catherine Larrère, “Le civique et le civil: de la citoyenneté chez Montesquieu”, Revue Montesquieu 3 (1999), p. 41-61. http://montesquieu.ens-lyon.fr/spip.php?article325