L'Esprit des lois

The Spirit of Law

1 On the spirit of law, or the relation that laws must have with the constitution of each government, the mores, climate, religion, commerce, etc. To which the author has added new research on Roman laws concerning successions, on French laws, and on feudal laws. To grasp the scope of the design and its realization, one must restore the title as it appeared on the original edition published by Barrillot in Geneva in 1748, a title negotiated in its last part between Montesquieu and the pastor Vernet, an intermediate and delegate, to take into account the final augmentation of the work in 1747-1748. It is all as if Montesquieu had been able to envisage its almost infinite extension from a historical and speculative point of view, and had stopped only out of strength: “[…] this work almost killed me […]. I shall work no longer” (“[…] cet ouvrage a pensé me tuer. […] Je ne travaillerai plus”). This is false. Montesquieu intervened in the revision of some of the later editions; the manuscripts at La Brède reveal new paths and questionings; and if one cannot surely attribute complete mastery of the posthumous edition of 1757-1758, nor can we doubt the authenticity of the enrichments and most of the details brought to his text.

The project

2This capital book, the fulfillment of prodigious culture, is nothing less than the founding of a new kind and a new order of knowledge. It is one of the three monuments of the mid-century, with the Encyclopédie and the first volumes of Buffon’s Natural History, which have the same paradoxical character. In the imposing form of the traditional cultural objects, they radically change the space of the known and the style of philosophy: in the case of L’Esprit des lois, it is by the autonomous discovery of the rules that define and determine all the forms of existence in society, and by the modes of approach, writing and transmission that contribute to founding and legitimizing this discovery.

3Nothing is more natural and even more justified than to see very early the idea of a work that accomplishes and crowns a whole lifelong research. In this case we can attest the author: “When I left college, books of law were placed in my hands, I sought their spirit, and accomplished nothing worthwhile” (“Au sortir du collège, on me mit entre les mains des livres de droit, j’en cherchais l’esprit, je ne faisais rien qui vaille”, letter to Solar, 7 March 1749). But we should perhaps stay closer to what he tells us in the same letter and, better yet, earlier still, in the preface to L’Esprit des lois, because of another decisive term: “When I discovered my principles, all that I was seeking came to me, and in the course of twenty years, I saw my work begin, grow, advance and end” (“Quand j’ai découvert mes principes, tout ce que je cherchais est venu à moi, et dans le cours de vingt années, j’ai vu mon ouvrage commencer, croître, s’avancer et finir”, italics added).

4 Spirit, principles. We have to go back to the starting points (certainly before his travels, for the first elements) and their convergence over time, to understand how Montesquieu’s proper project was constituted and affirmed, and especially how what allowed the accomplishment of his work developed: his principles, consubstantially linked to the object of his quest, the spirit of law.

The conception: genesis of the principles and conception of their application

5At the moment when the president was indeed about to undertake the work’s compisition, after 1734, there were three points of anchorage ready, three directional inspirations, that were going to allow a decisive impetus. Romans was at once a confrontation with the study of an exemplary case of political mutations affecting all orders of “external” causality, but also an “internal” logic; a deepening of the general, global understanding of the causes of institutional and social change; the interpretation of the whole of a complete cycle of evolution and historical experience; a reflection on the failure of a world – and a model – of universal domination. The study of the “English constitution”, what would become chapter 6 of book XI, essentially drafted at this time, according to Jean-Baptiste de Secondat, is, well beyond the description of “historical”, the analysis of an institutional and social system virtually able to guarantee the limitation, the separation, the control of the modes and exercise of public power, and to assure the security of the subjects of citizens who are dependent upon it. The Reflections on universal monarchy, unpublished, sketch for their part a précis of the objective conditions that have appeared in modern times, suited to favor a pacific development of the civilized world by the necessary and natural establishment of an equilibrium between powers henceforth committed to exchange, outside of dreams of a unifying empire. But what we have learned from manuscripts and texts made available since the opening of the collections at La Brède from the end of the nineteenth century to the present, invites one to plumb and orient more precisely these essential points in conception and ambition, granting nothing to the simplified image of a primum motum. Before the travels, on the level of political and historical analysis, the Considerations on Spanish wealth represented an early deepened reflection on the wealth and power of a nation, and its ruin. On the level of philosophical reflection, it is certain that the fundamental positions (neo-stoicism, anti-Hobbism, reference to an idea of justice anterior and superior to its historical realizations), already present in the Traité des devoirs (‘Treatise on duty’), are determinant but do not mean one can attach Montesquieu’s enterprise to the “influence” of the work of the philosophers who founded natural law except in a very general way. He will express his debt towards them in a text that is part of the passages removed from L’Esprit des lois (Pensées, no. 1863): it has essentially to do with the bias for a rational study of the foundations of the human and natural law, free from any metaphysical or religious a priori, but it is still very far away from absolutist political conceptions, and most often from the juridical reasoning that is theirs. After Romans, between 1734 and 1736, come the analysis of causality in general that was to see an essential rebound, perhaps in line with one of his youthful works, now almost completely lost, on the Différence des génies (‘Difference of geniuses’). The Essay on the causes, and this is an essential point, is an attempt at focusing rigorously the relation between physical and moral causes, far beyond a reworking, with respect to the influence of the climate, of Aristotle and Bodin.

6But we have to see things even more broadly. During the whole elaboration of the major work, it was not only “information” he was augmenting, from travel journals to the reading of contemporary political works, from the honing “extracts” of very diverse nature (finances, population, etc.) to the rereading of the historians of Antiquity and the critique of the historians of the origins of France, it was the conceptions themselves that were being enriched, clarified, modulated. The great collections of notes and reflections – Pensées and Spicilège – continually played a role as laboratory and trial run or test, nourishing the great work or amassing elements that could not find their place in them: L’Esprit des lois is also the visible part of an ensemble of work that fed it, and an exceptional document on the intellectual elaboration from which it emerged. By testifying to the complex design of the work between 1748 and the post mortem edition, and all the passages rejected or removed from the work, revealed and studied from Henri Barckhausen to Catherine Volpilhac-Auger.

7What we know from the correspondence and from what has left a trace, in the manuscripts of Bordeaux from the La Brède collection, about the modifications of the work’s dimensions and outline (plan for a book on the nature of things, modifications of the books or developments on the colonies and confederations, modes of approach of the Romanism/Germanism opposition) confirms even better that one must resolutely abstain from considering L’Esprit des lois as the development progressively adjusted of a certain number of simple problems of discriminating value: republican virtue or monarchical honor; climatic determinations or technical and political progress; guaranteed constitutional freedom and separation of powers. And what we can learn elsewhere thanks to the working manuscripts acquired by the Bibliothèque Nationale in 1939, of Montesquieu’s methods of successive composition and revisions, reveals the patient realization and rigorous harmony of really foundational conceptions, without which the work could not have gone forward: the mutual dependence of political and civil law, the logics of the “nature of things” and the “nature of the thing”, dissimulations and relations between the “natural” and the “civil”, the role of laws and causes. It is indeed thus that we can, beginning with the reflections imposed by these materials, documents and texts, circumscribe even better what we should understand by principles, and what the spirit of law is.

8It has been supposed that what was at issue was the principles of the different governments, and the capital discovery of the dialectic relationship between the institutional structure of each “government” (type of political society) and what assures and founds its functioning, the great innovation of a completely renewed political typology. And it is true that it could be all the more tempting that these “principles” can be enriched in their conception of everything the work develops beyond its first political parts. But that is to restrain or even shrink its general inspiration, which must always be related to the starting points which we have recalled, but is in addition rigorously defined, in the long run, by the preface, the balance sheet and true methodological conclusion of long labors. The principles are located above all these particular cases: the possible intelligibility of history that by far exceeds the nature-principle dialectic, reasons for the “maxims” of each nation, and finalities of a knowledge at the service of humankind, methodical thought on the differentiation and establishment of similitudes between past and present, such are the ambitions and the research discipline that allow the development of a work of knowing, which is a “political” work that posits itself as unentangled with any partisan position, but is inevitably written at “political risk” (C. Lefort), in other words still exposed to partisan interpretations – or to more or less bad-faith misrecognition.

9All that was finally able to be organized, and this is the foundation of the enterprise, only in function of the invention of an appropriate epistemology: this one, at both ends of book I, must be evaluated on the basis of two definitions of law, and of the type of rationality which they lead one to establish, equally in relation with what is and what ought to be (Jean Ehrard). Laws (in the modern, scientific sense) are “necessary relations that derive from the nature of things”; and law (in the sense of the fixed rule) “is human reason insofar as it govern all the peoples on earth”. References to these two modes of rationality, law/relation, rationality of laws adapted to an end and to the functioning of a whole, cannot be separated. And the spirit of law is defined by Montesquieu as what subsumes a series of relations first enumerated in function of the different domains in which laws can and must manifest and justify themselves: the climate, physical givens and general spirit of national entities, nature and principle of government, degree of freedom of which the constitution is capable, religion, finances, trade, population, even their own origin, the object of the legislator who brings them to light, the order of things on which they are established. We must see that the object is to give the grand axes of an heuristic device, but that it cannot be a matter of a closed series: the laws “have innumerable relations with innumerable things” (“ont des rapports sans nombre avec des choses sans nombre”). Montesquieu proposes a method, and not a treatise of jurisprudence; he has not “dealt with laws, but with the spirit of laws” (Pensées, no. 1794).

Development of the work

10Here we can only recall the essential order and lines of force of the two pendants of the work, books I to XIX, and XIX to XXXI.

11From Plato to Aristotle and from Aristotle to Bodin, we have classified and hierarchized the “governments”, in other words the political societies. Montesquieu himself also gives at first a typology of the governments, the specific analysis of which dominates the first books, but their role remains fundamental, at least up to the books he elaborated (XXVIII, XXX and XXXI) last of all. We need to underscore their decisive originality and just as well the paradox at which they arrive. We have already mentioned the nature-principle dialectic. But the changes it entails do not imply that there is a definite order of succession or a possible preferential hierarchy of types. With one exception: despotism, founded on fear, is the form of corruption of all regimes, although while reading one has the sense that he is looking principally at monarchies, where fundamental laws and intermediary bodies can, to be sure, counterbalance power, of which however the mode of exercise remains the principal guarantee against ever-threatening absolutism. In book V, we thus realize clearly that the opposition between despotism and moderate governments in fact exceeds all the others in importance: republican virtue (love of law), the dynamics spawned by the principle of ranks in the monarchy (“honor”), are equally, moreover, intimately correlated, if one wants limits to be set for despotic degeneration, to an exercise of powers developed over time, regulated, complex, amenable to limitations and especially capable of self-limitation.

12In the work’s second axis are inscribed, intimately linked, two components. The “system on freedom” (Montesquieu’s own expression), essentially studied in books XI to XIII, concerns both the constitutional dispositions capable of assuring political freedom (separation of powers, fixed laws that strictly determine the possibility of imposing the law on each individual’s will) and juridical structures and rules (accusations, indictments, procedures) which can guarantee the citizens’ security – which is the other, indissociable aspect of that political freedom. And this second axis is indeed conceived in line with the first: between the practice of political moderation (book V) and characters of civil and criminal laws and forms of judgments (book VI) on the one hand, and possible system of freedom on the other, there is a certain correlation. Nothing is more reductive than to enclose Montesquieu in a “constitutionalist” vision: the constitution can be free and the citizen not so – and conversely, there is no government that is free by its nature. Nothing can be established without social and moral conditions, and the establishment of certain civil laws. That was from the beginning the lesson of the analysis of the English constitution (XI, 6), which discerns an equilibrium of social forces at the same time as an institutional regulation.

13The third axis of the first half of the work (I-XIX), which brings us to the end of the third part, the principal articulations that Montesquieu had himself proposed to underscore strongly, concerns the natural and historical determinations that can burden or forbid there being freedom or, inversely, form the historical loam where not only political freedom, but the fundamental civil liberties, might be able to develop. The books on the “empire of climate” are books on submission (in certain cases, fatal) to climatic constraint – slavery, forced labor and despotism – on the more or less easy adaptation to the natural milieu or the manner in which men sometimes master it (books XIV-XVIII), but they take on their meaning especially in relation to the question of the various possible types of servitude: civil, domestic, political (XV, XVI, XVII), and their limits. This is where the essential confrontation with the “nature of things” takes place, where all the “natural” determinations converge, the social and historical gravities, the “rationalizations” of the laws; but equally so what these rationalizations can safeguard, and the resources of human reason and invention. And so it is that book XV can not only appeal to humanity – the conscience of common belonging to humankind – but also to the development of knowledge and techniques to overcome the “necessities” of slavery. It is at the end of this trajectory that in book XIX, one of the most important, Montesquieu finally hones in on the notion of general spirit of a nation, where all the orders of determination are regrouped and conjugated, each time in an original way, into a form of global and reciprocal causality. And at the same time it creates the groundwork for an intelligence of the levels of apprehension of the social (laws, mores and manners), and confirms, by returning lengthily to the English example, the rooting of political institutions – even the “best”, always returned to their relative character – in a specific history and society (XIX, 27).

14If we pass to the work’s second pendant, too often neglected by many commentators, although it is considerable, and indispensable to the deeper understanding of the first, the analysis becomes more arduous. It is not possible to enter into the details of a political thought of which we can only indicate here the essential vectors. Wealth, exchanges, currency, development of the population: the understanding of these fundamental problems of political entities is a function both of a confrontation between the ancient and modern worlds, a modern European world and “new worlds”, and of constant reference to the implications of its typology. Montesquieu, who never stops affirming that we have reached “the age of commerce” and referring to the primary value of work (see the famous chapter “On poorhouses”, XXIII, 29) and a “productivism” of principle (against the “wealth of fiction” of inflation linked to the overexploitation of precious metals) is neither neo-mercantilist, nor liberal in the sense of Adam Smith. In fact, the political aspect remains determinant. It is attached to the stability of a social state that is highly dependent on the respect of orders and ranks, as well as of kingly functions of assistance or even tutelage: all the decisive forms of “progress” he has conceived have as their framework what he thinks of the modern political state: a moderate monarchy in all respects, which can and even “must” practice “luxury commerce”. But the necessity, in a modern world, which has left ancient civism behind, ,of founding an order without virtue while avoiding the social consequences of a logic of self-interest, incites Montesquieu to define an original style of sociability that goes along with “agreeable trade” (“doux commerce”). If the books on religion in the modern states (XXIV and XXV), conceived and in large part written long before books XX-XXIII, testify, in the background, to the nostalgia of a social, political and spiritual order which in Montesquieu never ceases coming to the surface, devoted to the service of the humanity which Catholicism could never provide, are entirely in the service of an order in the service of a social peace which “Christian virtues” can contribute to establishing, and the possible invention of rules of toleration and coexistence that require renunciation of all the forms of expansion that the laws assume, even when they are not fanciful.

15The completion of L’Esprit des lois, beyond the books on the religious phenomenon, can be considered from three points of view:
– That of the rationality of law in itself, where one can pair books XXVI (the laws in terms of the things on which they rule) and XXIX (the composition of laws): there the questions of relations between civil and natural laws, and the limits and modalities of the legislator’s action, are directly taken up again. Politics is in no way a science that is deployed in the absolute, it is perhaps first conscience of its limits.
– The viewpoint, new and capital as the endpoint of Montesquieu’s search for the intelligence of “generation[s] of laws” (Pensées, no. 1795). Ought one to consider only the system formed by civil and political laws on a given problem, the political evolution entailing modifications of the civil law (Roman laws on successions, XXVII); or ought one also to consider not “the origin of laws” but “laws in their origin”, according to a renewed view of the parallel evolution of political and social givens, from barbaric codes to the renaissance of Roman law and the birth of common laws (book XXVIII, “On the origin and revolutions of civil laws among the French”)? The working manuscripts prove that this opposition was considered at one point as the culmination of the work.
– Finally, there is the late research on the laws of old France, which relaunched the enterprise, as we learn from the correspondence of the years 1746 and 1747. The link with what belongs to the previous development of the thought appears in the definitive title, with the rapprochement of books XXVII and XXVIII. Books XXX and XXXI on the theory and revolutions of feudal laws – laws of a political power linked to an organization in fiefs – form a prolongation that allows Montesquieu to adjust his attitude beginning with an historical re-evaluation of the “Germanist” and “Romanist” theses with respect to a certain representation of monarchical power, that of primus inter pares limited by fundamental laws. That had been, in a certain way, the political subject of L’Esprit des lois from the very start. But the transformation of the political which the work induces throughout its length considerably shapes and modifies it.

Knowledge and misunderstanding of a work

16We cannot here pretend to sum up the criticisms– or inconsistent praise – meaninglessly against or for L’Esprit des lois at the time of its publication. The attacks against the book now appear to us either obsolete and uninteresting (Montesquieu’s “Spinozism”), and he took care of them pretty well by himself, or to stem from political attacks in incomprehension of his purpose (Voltaire’s Commentary on The Spirit of Law and several works that preceded it, the apocryphal letter of Helvétius to Saurin), or yet again to raise real, acute problems, whether about his philosophical style (inviting one to think but not to read, knowing to what degree one should skip the “intermediate ideas”), about the stakes for society and civilization, or economic and financial analyses (Claude Dupin). One must also take account of Montesquieu’s strategy and more or less successful efforts to avoid polemics. Thus his attitude toward the religious phenomenon. That the choice of considering religion methodically as a political and social fact which a moderate state must regulate as best it can, within its limits and beyond, is perhaps more disqualifying with respect to the temporal destinies of the Christian faith than diatribes against the infâme. He was made to feel that.

17 L’Esprit des lois has often been refused, from the outset, the status of Enlightenment work, before part of its content and what was taken for its message were incorporated into various forms of “liberal” thought. Its modern destiny reveals its capacity for escaping from this double ideological trap. The revolution in method has been decisively illuminated (L. Althusser). Novelty in the order of knowledge has progressively appeared, outside its positivistic annexation, in a more and more favorable light (Raymond Aron); its importance in the definition of modern political conditions has been re-evaluated in very original manner (John Pocock): this critical fecundity over the long haul is ample compensation for the ritual references to a barely-understood “separation of powers”.

D’Alembert, Analysis of L’Esprit des lois, Mercure de France, December 1755.

Claude Dupin, Observations sur un livre intitulé « De l’esprit des lois », 3 vol., Paris, 1757-1758.

Condorcet, Observations sur le XXIXe livre de L’Esprit des lois, Œuvres, Paris: Firmin-Didot, 1847, tome I

A. L. C. Destutt de Tracy, Commentaire sur L’esprit des lois de Montesquieu (1811), re-ed. Université de Caen, 1992.

Émile Durkheim, Montesquieu et Rousseau précurseurs de la sociologie (1891), Paris: M. Rivière, 1953.

Henri Barckhausen, Montesquieu, “L’Esprit des lois” et les archives de La Brède, Bordeaux: Michel et Forgeot, 1904 (reprint Geneva: Slatkine, 1970).

Gustave Lanson, “Le déterminisme historique et l’idéalisme social dans L’Esprit des lois”, Revue de métaphysique et de morale 23 (1916), p. 177-203.

Robert Shackleton, “La genèse de L’Esprit des lois”, Revue d’histoire littéraire de la France, 52 (1952), p. 425-438.

Sergio Cotta, Montesquieu e la scienza della società, Turin, 1953.

Louis Althusser, Montesquieu, la politique et l’histoire, Paris: PUF, 1959.

Robert Shackleton, Montesquieu: a Critical Biography, Oxford, 1961.

Jean Ehrard L’Idée de nature en France dans la première moitié du XVIIIe siècle, Paris: SEVPEN, 1963 (re-ed. Albin Michel, 1994), chapters VIII and XI.

Werner Krauss, Studien zur deutschen und französischen Aufklärung (“Die Entstehungeschichte von Montesquieu Esprit des lois”), Berlin, 1963.

Cecil P. Courtney, Montesquieu and Burke, Oxford, 1963.

Raymond Aron, Les Étapes de la pensée sociologique, Paris: Gallimard, 1967.

Corrado Rosso, Montesquieu moraliste, des lois au bonheur, Bordeaux: Ducros, 1971.

Thomas L. Pangle, Montesquieu’s Philosophy of Liberalism, a Commentary on ‘The Spirit of the Laws, Chicago: University of Chicago Press, 1973.

Pierre Rétat, “De Mandeville à Montesquieu: honneur, luxe et dépense noble dans L’Esprit des lois, Studi francesi 50 (May-August 1973), p.238-249.

Simone Goyard-Fabre, La Philosophie du droit de Montesquieu, Paris: Klincksieck, 1973.

Edgar Mass, “Die Leser des Esprit des lois”, Jarbuch für Internationale Germanistick, 7 (1975), p. 36-57.

Georges Benrekassa, “Philosophie du droit et histoire dans les livres XXVII et XXVIII de L’Esprit des lois”, in G. Benrekassa, Le Concentrique et l’Excentrique: marges des Lumières, Paris: Payot, 1980.

— “La position de la romanité dans L’Esprit des lois: l’État moderne et le poids de son histoire”, in G. Benrekassa, La Politique et sa mémoire: le politique et l’historique dans la pensée des Lumières, Paris: Payot, 1983.

Iris Cox, Montesquieu and the Theory of French Law, Oxford: Voltaire Foundation, SVEC 218 (1983).

Pierre Rétat, “Les ambiguïtés de la notion de loi chez Montesquieu. Analyse du livre I de L’Esprit des lois”, in De la tyrannie au totalitarisme, Lyon: L’Hermès, 1986, p.125-135.

Catherine Volpilhac-Auger, “La table des matières de L’Esprit des lois”, La Marge, François Marotin ed., Clermont-Ferrand: Publications de la faculté des lettres, 1988, p. 133-144.

Cecil P. Courtney, “Montesquieu and the Problem of ‘la diversité’”, Enlightenment Essays in Memory of Robert Shackleton, Oxford: Voltaire Foundation, 1988, p. 61-81.

Jean Ehrard, “Esthétique et philosophie des Lumières : la ‘chaîne’ de L’Esprit des lois”, Lendemains/ Vergleichende Frankreichforschung 62 (1991), p. 179-192; reprinted in Jean Ehrard, L’Esprit des mots. Montesquieu en lui-même et parmi les siens, Geneva: Droz, 1988, p. 179-192.

Alberto Postigliola, La Città della ragione: per una storia filosofica del settecento francese Rome: Bulzoni, 1992.

Bertrand Binoche, Introduction à “De l’esprit des lois” de Montesquieu, Paris: PUF, 1998

Jean-Patrice Courtois, Inflexions de la rationalité dans “L’Esprit des lois”, Paris: PUF, 1999.

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

David Carrithers, “An Appreciation of the Spirit of Laws”, in Montesquieu’s Science of Politics: Essays on “The Spirit of Laws”, David W. Carrithers, Michael A. Mosher, Paul A. Rahe ed., Lanham, Boulder, New York, Oxford: Rowman & Littlefield, 2001, p.109-158.

Catherine Volpilhac-Auger, “Du bon usage des corrections : l’édition posthume de L’Esprit des lois et les archives de La Brède”, Revue d’histoire littéraire de la France 101 (2001), p. 1181-1191.

Lorenzo Bianchi “Histoire et nature : la religion dans L’Esprit des lois”, in Le Temps de Montesquieu, Michel Porret and Catherine Volpilhac-Auger ed., Geneva: Droz, 2002, p. 289-304.

Jean-Patrice Courtois, “Temps, corruption et histoire dans L’Esprit des lois”, in Le Temps de Montesquieu, Michel Porret and Catherine Volpilhac-Auger ed., Geneva: Droz, 2002, p. 305-318.

Catherine Larrère, “Montesquieu et l’histoire du commerce”, in Le Temps de Montesquieu, Michel Porret and Catherine Volpilhac-Auger ed., Geneva: Droz, 2002, p. 319-336.

Catherine Larrère, “Montesquieu, noblesse et commerce, ordre social et pensée économique”, Il pensiero gerarchico in Europa (XVIIIe-XIXe s.), Antonella Alimento and Cristina Cassina ed., Florence: Olschki, 2002, p. 31-48.

Céline Spector, Montesquieu : pouvoirs, richesses et sociétés, Paris: PUF, 2004.

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