1What is order? A system of relationships. The first chapter, of book I of L’Esprit des lois, which gives the famous definition of laws as relations, uses the form of a scale of beings to present laws “in their relation to various beings” (“dans le rapport qu’elles ont avec les divers êtres”, EL, I, 1). The cosmological context and the appeal to a “primitive reason” (raison primitive) can make one think of a presentation of the order of the things of Creation that owes much to theology. In fact, a certain number of traits in these passages can be compared to Malebranchist concepts (Assoun, p. 173-175). Montesquieu asserts, against the notion of “blind fatality” (fatalité aveugle), of a partial and hazardous ordering of things, that order cannot but have been ordered. Yet the term does not appear there. The metaphysical and theological questioning is abandoned since we have no access to the overall economy of beings either by rational knowledge or by esthetic contemplation. The presentation of relations leads less to revelation of an overall order than to the identification of various spheres of rationality, orders of laws relative to various beings. Hence the matter of knowing how to situate man in this order is out of place. Montesquieu presents man last because the relations to laws that characterize him are the most complex and describe an unstable position. Do his ignorance and his passions not make of him a factor of disorder? At the same time, human reason occupies an ordering position by dint of the fact that it institutes laws, like divine reason: must we then understand that philosophers and legislators recall to order a being forgetful of himself and his duties (EL, I, 1)? Can we think that the desire to see each one “love his duties, his prince, his country, his laws” (“aimer ses devoirs, son prince, sa patrie, ses lois”, EL, preface) realizes in the political domain the Malebranchist theme of “love of order” and that these concepts, detached from metaphysics which gave rise to them, make it possible to elaborate a knowledge of political relations (Assoun, p. 177-179)?
2It is by exposing the outline of the work that the spirit of law is defined as an ensemble of relations and that their order is evoked (EL, I, 3). If “all these relations” (tous ces rapports) can appear as an order, that is because the spirit allows us to pass from the diversity of factors, the list of which Montesquieu establishes, to the non-intentional unity that results from them. The spirit of law is Montesquieu’s object of study: he intends to explain positive laws by exposing the ensemble of relations that determine them. The spirit also appears as the faculty of order, insofar as to have the spirit of law is to be capable of grasping the relations “all together” (ibid.), to be capable of “judging the whole together” (“juger du tout ensemble”, EL, preface). The latter expression, which comes from esthetics where it designates the harmony of a painting, manifests the idea of a real order in human legislation provided we understand the relations, provided we know how to consider laws “in all these views” (“dans toutes ces vues”, EL, I, 3). However an order presented as an ensemble of relations is not a pre-established natural order, it does not refer to a cosmos, and does not depend here on a divine or primitive reason. It appears as the order proper to human laws, a work of human reason as applied to a situation (EL, I, 3). That to which positive laws must relate constitutes the conditions and limits of legislation. The order of relations therefore does not necessarily designate a legislative “harmony” or a good political “constitution”. It is the frame in which the study of laws must be conducted. It allows both the elaboration of a general knowledge of law and the grasping of the particularity of each situation, for one must not “miss the differences” (EL, preface). The order “of these relations and these things” (EL, I, 3; italics added, as in all quotations) must not be confused with an “order of things” that would be immutable. For if the image of an invariable order allows us to picture the physical universe in which “every diversity is uniformity, every change is constancy” (“chaque diversité est uniformité, [où] chaque changement est constance”, EL, I, 1), the human order remains changing and varied; it is deployed in history and will always remain to be reinvented. Montesquieu’s work would then allow one to illuminate human reason in its practice of law, less to allow an appeal to order, to restore an ideal order or to renew it by discovering the origin of society, than to launch an appeal to order, to engage the legislator in proposing changes that can provide for the happiness of community living (EL, préface). That consists not only in guiding the necessary adaptation of the laws to the particularities of a people and an historical situation. The art of legislation ought also to take the measure of the various orders of laws that impose themselves on men (EL, XXVI, 1). The confusion of domains of jurisdiction of the various laws not only risks entailing incoherences or juridical conflicts, it is dangerous for the citizen who is conflicted, bent between contradictory obligations that can deny his human nature, and lead him to forget himself. It is not enough to govern men well, they must also be governed for the good.
3The idea of order justifies not having separated political laws from civil laws and specifies how the spirit of law is to be studied (EL, I, 3). We learn that its object obliged Montesquieu to follow a proper “order”: “[…] as I am not dealing with laws, but with the spirit of law, […] I had to follow less the natural order of laws than that of those relations and those things” (“[…] comme je ne traite point des lois, mais de l’esprit des lois, [...] j’ai dû moins suivre l’ordre naturel des lois, que celui de ces rapports et de ces choses”, ibid.). He does not intend like Domat to study “civil laws in their natural order” (“les lois civiles dans leur ordre naturel”), but by relating them to the political laws of each historical situation. The spirit of law is indeed a system of relations that makes it possible to inquire into the evolution of societies, but it presupposes no theory of order, of order inscribed by God in nature and human society. As the order of relations determines the author’s approach, one can think it also engages the order of the text, the plan of the work. The “disorder” of L’Esprit des lois is a commonplace. The work’s preface however tries to forestall such a judgment by asking the reader to read “the entire book” and be willing to see the “chain” that runs through it. By presenting the genesis of the work, Montesquieu proposes the idea of a systematic position that holds “it all together”. The preceding remarks indicate that such an order for the work has a meaning only insofar as it accords with the object under study, and it must be discovered relative to the order “of those relations with those things”.
4 L’Esprit des lois presents physics images to apprehend the political order as a “system” (EL, III, 7; EL, XI, 6). But the image of the “system of the universe” (système de l’univers, EL, III, 7) must not be allowed to fool us: states have not such constancy, and they are fated to change and disappear (EL, XI, 6). If we compare this image to the use Montesquieu makes of the term harmony in L’Esprit des lois (EL, XI, 12; EL, XI, 19), we observe that he is trying to propose a fragile dynamic equilibrium rather than designate a resolution of dissonances in an overall accord. The difference with respect to the images used in Romans (ch. IX, OC, t. II, p. 157) allows us to be more precise about his conception of a political union that opposes well-ordered moderate governments to despotic uniformity (Jacot-Grapa, p. 407-415). The mechanistic vocabulary is intended to make clear the specific dynamics of the powers in this equilibrium. But the machine is only a regulatory image that makes it possible to illuminate what a “masterpiece of legislation” can be (EL, V, 14). It would then be appropriate to examine the esthetic conception of order, such as Montesquieu presents it in the Essay on Taste. There he affirms the joint necessity of order and variety (OC, t. IX, p. 493-494). Order, as symmetry or as proportion, should not be opposed to contracts, it should allow surprise to please the soul (ibid., p. 496-499 et p. 504-505). The formation of taste ought to make it possible to guide artistic creation: “Thus art gives the rules, and taste the exceptions” (“Ainsi l’art donne les règles, et le goût les exceptions”, ibid., p. 512). We can ask whether the formation to the spirit of law does not also allow this knowledge of what is “appropriate” (à propos; EL, XXIX, 18). We would then find echoes of the critique of esthetic uniformity in the cautionary notes against despotic uniformity, a rigid and blind order that does not comply with the nature proper to man (Binoche, p. 14-17).
Paul-Laurent Assoun, “Les sources philosophiques du concept de loi dans L’Esprit des lois: Montesquieu et le malebranchisme”, Montesquieu: “De l’Esprit des lois”, la nature et la loi (collective), Paris: Ellipses-Marketing, 1987, p. 169-179.
Bertrand Binoche, Introduction to “De l’esprit des lois”, Paris: PUF, 1998.
Caroline Jacot-Grapa, “Lois du corps dans les Considérations et L’Esprit des lois: une pensée du particulier”, Actes du colloque international de Bordeaux pour le 250e anniversaire de L’Esprit des lois, Louis Desgraves (ed.), Bordeaux: Bibliothèque municipale, 1999, p. 403-418.