1Montesquieu is without doubt among those who have contributed in France to familiarity with and admiration of the “Constitution of England”. He is obviously neither the first not the only one to see in the English regime the model for what would soon be called “modern freedom”: Voltaire, whose stay in England (1726) preceded Montesquieu’s by three years, painted an unequaled portrait of English society in his Lettres philosophiques (1734), which explains perfectly the reasons for the enthusiasm of the “enlightened” public for a nation that seemed at once freer, happier, and potentially more powerful than the French monarchy. The originality of the author of The Spirit of Law lies rather in his attention to the political and juridical balances that made the development and preservation of a particular form of freedom possible, and his interest in the English Constitution is inseparable from a reflection on the merits and flaws of the French regime, the orientation of which differs on many points from the dominant currents of French Enlightenment thought. For most “philosophes”, praising England was a way of calling the traditional laws or mores of France into question, and it was not incompatible, as Voltaire’s example shows, with a certain sympathy for the civilizing effect of absolute monarchy. For Montesquieu, what sets England apart from all other political entities, even moderate ones, is what constitutes the object of its Constitution, that is, the preservation and extension of political freedom, but this radicalism even in the pursuit of freedom separates it from moderation, and inversely, the French monarchy can (or could have) incarnate another possible and more moderate path toward freedom had it not been corrupted by a centuries-long tendency toward “despotism”. As Céline Spector has shown, Montesquieu’s praise of English freedom, which rests on the expansion of “commerce”, does not prevent him from equally valorizing a certain form of “moderation” and even of freedom in the French regime, thanks to the role played by honor and the importance of “manners”. This comparison is present from Montesquieu’s earliest writings, and is central to the analyses of The Spirit of Law.
Is English freedom founded on virtue?
2In the first volume of Mes Pensées (articles copied around 1734-1735) we find striking description of the traits that characterize England and distinguish her from France: “The establishment of monarchies produces refinement; but works of the mind appear only early in monarchies, the general corruption affecting even that part” (no. 779).(“L’établissement des monarchies produit la politesse ; mais les ouvrages d’esprit ne paraissent que dans le commencement des monarchies, la corruption générale affectant encore cette partie-là.”) “The English are occupied: they do not have the time to be polite” (no. 780). (“Les Anglais sont occupés : ils n’ont pas le temps d’être polis.”) “The difference between the English and the French. The English are comfortable with their inferiors and cannot bear their superiors. We get along with our superiors and are intolerable to our inferiors.” (no. 781). (“La différence des Anglais et des Français. Les Anglais vivent bien avec leurs inférieurs et ne peuvent soutenir leurs supérieurs. Nous nous accommodons de nos supérieurs et sommes insupportables à nos inférieurs.”)
3The first two items work from the familiar commonplace of comparison between France and England: the French are polite because they must please their superiors, and therefore because they are not truly free, whereas the English are honest because they are free, but in exchange they have less refined manners than the French. The third clearly opposes English freedom, which is linked to a certain equality among citizens, to French sociability, where the hierarchy of ranks brings about the alternatively servile behavior of the courtesan, which makes of him a distinguished version of the manservant. But this portrait needs to be nuanced by a decisive consideration: the real engine of English freedom is not so much virtue as self-interest, which is in fact the first preoccupation of the English, and the principal reason why they are so “occupied”. Conversely, if the French are more “polite” than the English, that is not because they are worse than they, but because they too are “occupied”, but that their concern is to please: “in Paris, one is swept away by society; all you know is manners, and you have no time to know vices and virtues” (“à Paris, on est étourdi par le monde ; on ne connaît que les manières, et on n’a pas le temps de connaître les vices et les vertus”, Pensées, no. 1079).
4The English are therefore free and, to the extent that informed self-interest so requires, honest, without being genuinely virtuous; but they are not terribly amiable, and are on all these points the exact opposite of the French. This is the general idea which we find in various forms in the Notes on England, which sum up Montesquieu’s experience during his long stay there in 1729-1731. There England appears from the start as a country that is both free and honest without rudeness, which obviously gives her a rather eminent station among her contemporary states: “In London, freedom and equality. London’s freedom is the freedom of proper folk, in which it differs from that of Venice, which is the freedom of living in obscurity, and with w…, and marrying them: London’s freedom is also the equality of proper folk, in which it differs from the freedom of Holland, which is the freedom of the rabble” (“À Londres, liberté et égalité. La liberté de Londres est la liberté des honnêtes gens, en quoi elle diffère de celle de Venise, qui est la liberté de vivre obscurément et avec des p.... et de les épouser : l’égalité de Londres est aussi l’égalité des honnêtes gens, en quoi elle diffère de la liberté de Hollande, qui est la liberté de la canaille”, , Voyages, p. 496). But that does not ultimately prevent Montesquieu from painting a rather unflattering picture of English mores and manners that doubtless expresses a degree of disillusion. To be sure, he criticizes the French who complain too quickly that they are ill received in England, but it is in order to note that this lack of amiability also determines the way the English behave towards each other: “How could the English like foreigners? They do not even like themselves. How could they invite us to dinner? They do not invite each other to dinner” (“Comment les Anglais aimeraient-ils les étrangers ? Ils ne s’aiment pas eux-mêmes. Comment nous donneraient-ils à dîner ? Ils ne se donnent pas à dîner entre eux”, , p. 498). English manners are therefore wanting in grace, as is shown by relations between men and women: “Their women are reserved, because the English see little of them; they imagine that a foreigner who speaks to them wants to mount them. They say, ‘I don’t want to give him encouragement’” (“Les femmes y sont réservées, parce que les Anglais les voient peu ; elles s’imaginent qu’un étranger qui leur parle veut les chevaucher. “Je ne veux point, disent-elles, give to him encouragement”, , p. 504). All that is connected to the English political regime, for if it is indeed the longing for freedom that maintains the mistrustful atmosphere, that freedom hardly favors friendship and is not without a certain hardness of heart: “As they do not like each other here, one is hardened by the fear of being duped” (“Comme on ne s’aime point ici, à force de craindre d’être dupe, on devient dur”, , p. 500); the same thought recurs in Pensées no. 1136, which makes of hatred and vengeance the principal engines of English sociability: “The English are almost never brought together by other bonds than those of hatred and the hope of vengeance” (“Les Anglais ne sont presque jamais unis que par les liens de la haine et l’espoir de la vengeance”).
5What ultimately emerges from the Pensées and the Notes on England is that if the English are indeed a free people, that implies neither that their virtues are superior to those of other peoples, nor that they are happier. The principal feature of English society is finally the predominance of the passion for wealth over all other motivations for action. That passion has a happy side related to what is “republican” about the English regime: unlike a possibly dominant tendency of the French nobility (to be found again among Proust’s Guermantes), the English ascribe a certain value to personal merit to the detriment of aristocratic conventions, but even that has as its counterpart the reinforcement of the role of money. Nor is love of wealth incompatible with a degree of heroism, for the English are capable of doing extraordinary things to earn money (as are the French to spend it). In the end, however, the longing for wealth corrupts the public mind and places freedom in danger: “The English no longer deserve their freedom. They sell it to the king; and if the king gave it back to them, they would sell it again”. Doubt is also permitted as to the nature or even the reality of their happiness: “The English are rich, they are free, but they are tormented by their minds. They are weary or disdainful of everything. They are really quite unhappy, with so many reasons for not being so.” (“Les Anglais sont riches, ils sont libres, mais ils sont tourmentés par leur esprit. Ils sont dans le dégoût ou dans le dédain de tout. Ils sont réellement assez malheureux, avec tant de sujets de ne l’être pas”, Pensées, no. 26, prior to 1731). This fragility of English happiness is notably manifest in the English propensity toward suicide (Pensées, no. 1426), which Montesquieu will later attribute to the English climate and to the English temperament (EL, XIV, 12).
The English Constitution
6Although admiring, Montesquieu’s judgment of England is equally ambivalent, which makes it impossible to see the famous chapter 6 of The Spirit of Law (“On the English Constitution”) as unabashed praise; it is rather an attempt to resolve an enigma clearly set forth in earlier texts, that of a free and (relatively) moderate regime based on neither virtue nor honor. The first thing to be noticed here is that this regime, while it is doubtless in his eyes the ultimate expression of the aspirations that come into being in his time, seems at first to enter rather awkwardly into the framework of thought which Montesquieu has set: it corresponds to the criteria of none of the three regimes defined in book II of The Spirit of Law, yet without being strictly speaking a “mixed regime”. In book V Montesquieu writes that in England “the republic is disguised in the form of monarchy” (“la république se cache sous la forme de la monarchie”, EL, V, 19), but that does not suffice to dispel the uncertainties about the principles of this regime. For Montesquieu, the republic is possible only in small states where the citizens can easily understand the public weal and recognize themselves in it, and the modern world, which also encompasses a considerable development of trade and the inequality of fortunes, requires large states, and thus seems destined to make of the democratic and even aristocratic republic a thing of the past. Now it is precisely in England that these new tendencies are the most visible: thus it should be far removed from the republic, even when “disguised” in monarchical form. Conversely, the functioning of what is “monarchical” in the English regime equally appears far removed from the criteria developed in book II of The Spirit of Law because, in the end, it is much less honor than political calculation and, above all, corruption, that impels the powerful to act in harmony with the king’s wishes. England lives under a semi-republican or semi-monarchical regime the “principle” of which is neither virtue, as in democratic republics, nor honor, as in monarchies, nor even moderation, since it is home to “extreme freedom”. What characterizes England is less her principle – what makes her tick – than her “object”, the end she spontaneously pursues.
7All states, according to Montesquieu, have a single object in common, which is to maintain themselves, but each state also has one peculiar to itself, and which distinguishes it from all others: “aggrandizement was the purpose of Rome; war, that of Lacedaemon; religion, that of Judaic law”, but there is also one nation in the world – England – “which has political freedom as the direct object of its Constitution” (“qui a pour objet direct de sa constitution la liberté politique”, EL, XI, 5). That does not mean that England alone is home to political freedom (no more than Sparta was the only city to make war!), but it indeed implies a particular orientation: that which elsewhere is a (happy) feature among other regimes of which it is not the primary goal, here becomes the nation’s object, in other words that which gives its laws and mores their meaning. In chapters 2 and 3 of book XI, Montesquieu had said that political freedom is not to be confused either with the “people’s power” or with the right to “do whatever one wants”: “It is true that in democracies the people seems to do whatever it wants, but political freedom does not consist in doing whatever you want. In a state, that is, in a society where there are laws, freedom can only consist in being able to do whatever you ought to want, and not being forced to do what you ought not to want” (“Il est vrai que dans les démocraties le peuple paraît faire ce qu’il veut ; mais la liberté politique ne consiste point à faire ce qu’on veut. Dans un État, c’est-à-dire dans une société où il y a des lois, la liberté ne peut consister qu’à pouvoir faire ce que l’on doit vouloir, et à n’être point contraint de faire ce que l’on ne doit pas vouloir”, EL, XI, 3); this definition is not “democratic”, and implies no particular valorization of participation in public business, but it is undoubtedly “republican”: equality before the law, and submission of all to its authority is the primary condition of freedom. In chapter 6, he insists rather on the feelings that derive from this protection of the law: “Political freedom in a citizen is that peace of mind that comes from the opinion each has of his own security; and in order to provide this freedom, the government must be such that no citizen can fear another citizen” (1757-1758: “another citizen”); what constitutes the “object” of the English nation is the perfecting of all the apparatus favorable to this feeling of “security” – and the result of this fundamental orientation is something entirely new and very different from what exists in other, even moderate, political regimes.
8The analysis given by Montesquieu of the English Constitution is at once famous and controversial. The idea that, as Montesquieu had said just prior to this passage, “so that no one can abuse power, things must be so arranged so that power limits power” (“pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir”, EL, XI, 4) is generally conceded, but interpreters differ over the exact meaning of this “separation of powers” (the expression itself is not to be found in Montesquieu, who says merely that “powers” must be “separated”). Certain misinterpretations (such as deducing the necessity of strict specialization of state organs from the principle of separation) are easily refuted, but other questions, like the hypothetical foundation of the balance of powers in the balance of social “forces”, are still debated. In fact, what is striking is that Montesquieu’s analysis rests on very precise information concerning the contemporary evolution of the English regime, while ignoring, no doubt deliberately, the traditional discussions of which it is the object.
9At a first reading, one might consider that the analysis essentially bears on relations between the three components of the “King in Parliament” – the king, the Commons and the Lords – which are regulated by a double principle of balance resulting in a privileged role for the body of nobles; on the one hand, the executive and legislative powers must be distinct, and on the other, the legislative power must itself be “entrusted both to the body of nobles and to the body chosen to represent the people, each of which will have its own separate assembly and deliberations, and its own views and interests” (“confiée, et au corps des nobles, et au corps qui sera choisi pour représenter le peuple, qui auront chacun leurs assemblées et leurs délibérations à part, et des vues et des intérêts séparés”). In this framework, Montesquieu is led to marginalize the “power to judge” which, he says, is “in a sense nil”, to consider that “there remain only two”, and to attribute to the House of Lords a central position: “as [the executive and legislative powers] require a regulatory power to temper them, the part of the legislative body that is composed of nobles is well suited to produce this effect”. The marginalization of the “power to judge” can appear curious, it being the country of “common law” where the tribunals contribute notably to the production of law, and thereby to the juridical unification of the realm, but it is understandable if we note that what Montesquieu is really talking about is judgment by jury, in which the power to judge is indeed “nil”, as it must be in a state where the power of the people is considerable; conversely, the importance of the House of Lords is distinguished by judiciary or jurisdictional functions: it judges matters of the nobility which might be ill treated by popular juries; it examines political accusations emanating from the people; and when the law, “which is at once clairvoyant and blind”, assumes too much rigor, it is up to Lords to “moderate the law for the benefit of the law itself, by pronouncing less rigorously than it does” (“qui est en même temps clairvoyante et aveugle » s’avère trop rigoureuse, c’est à elle qu’il revient de « modérer la loi en faveur de la loi même, en prononçant moins rigoureusement qu’elle”). In fact, the central question is obviously that of the relationship between the executive (the king) and the legislative, and it is there, according to Montesquieu, that the English regime is so extraordinary, by giving the monarch the means of preventing the legislative from becoming “despotic” yet without presuming to “legislate” in its stead, and by giving the legislative power “the faculty of examining in what manner the laws it made have been applied” without allowing it the faculty of “limiting the executive power”. The author of The Spirit of Law is not at all interested in the traditional discussions between Whigs and Tories over the principles of the English Constitution, but he has taken note of a decisive point in the formation of the modern regime: if the king is inviolable and irresponsible, the legislative body can require its ministers to account for themselves.
10The chapter on the “Constitution of England” is very often the object of two reductive readings. The first is based on what Montesquieu says about the necessary power of the upper chamber to scale up the aristocratic or “feudal” (Althusser) aspect of his thought. The second considers that if the idea that “power limits power” indeed expresses a fundamental feature of modern regimes, Montesquieu is still giving a rather strict perception of it, because it is restricted to juridical relations among “powers” without taking account of the political dynamics of representative regimes. In fact, on these two points Montesquieu is closer to us than we think. If he insists on the arrangements that allow for protection of the upper classes, that is because he knows that fundamentally the English regime tends towards equality and that were it to perish, it would be through the growth of the legislative power and particularly of Commons: “As all things human come to an end, the state we shall describe will lose its freedom and perish. Rome, Lacedaemon and Carthage indeed perished. It shall perish when the legislative power is more corrupt than the executive.” In fact, what Montesquieu is describing is, beyond the English case, the birth of a new society in which the desire for political freedom is inseparable from each individual’s pursuit of his own interest, and “commerce” plays a more and more important role than “virtue”, commerce being “the profession of equals” (« commerce » prend de plus en plus le pas sur la « vertu » : or, « le commerce est la profession des gens égaux”, EL, V, 8). The “extreme” – and perhaps for that very reason fragile – political freedom that characterizes England is tied to the invention of a new type of political regime which is in no way comparable to classical republics; this is what the first modern republicans had not understood: “Harrington, in his Oceana, also inquired after the highest point of freedom to which the constitution of a state could be raised. But we can say of him that he sought this freedom only after misconceiving it, and that he built Chalcedon with the shores of Byzantium before his eyes” (“Harrington, dans son Oceana, a aussi examiné quel était le plus haut point de liberté où la constitution d’un État peut être portée. Mais on peut dire de lui qu'il n'a cherché cette liberté qu'après l'avoir méconnue, et qu'il a bâti Chalcédoine, ayant le rivage de Byzance devant les yeux”). Now this new type of regime is very far from being characterized only by legislative or constitutional arrangements for the restriction of powers. In fact, as Pierre Manent has admirably shown, the distribution of powers in the English Constitution is inseparable from a major political fact, which is the organization of competition between two rival “parties” each of which gravitates around the two poles that are the king and the Commons, conflicts between them being decided by electors of whom a majority can be obtained only by limiting the pretentions of the two camps: the “freedom effect” leads electors to prevent each party from acquiring an excessive preponderance, and the conflict of the parties ultimately reinforces the citizens’ freedom (EL, XIX, 27).
11The analysis of the “Constitution of England” is thus inseparable from that of English society, of which book XIX, chapter 27 –“How the laws can contribute to the formation of a nation’s mores, manners and character” (“Comment les lois peuvent contribuer à former les mœurs, les manières et le caractère d’une nation”) – shows in an hypothetico-deductive mode that its principal features can essentially be explained by the regime’s logic, to which must only be added the effects of climate and insularity. Within, the effect of freedom is always to extend the domain of freedom, which is why even James II’s efforts to destroy the balances of the English Constitution ultimately reinforced them, as shown by the Glorious Revolution of 1688. Each individual’s freedom to govern himself produces both the probity of the clergy, the multiplicity of sects, and, in the long run, the general weakening of religious beliefs. Warlike virtues are less admired than civil virtues and, since England is an island, it is natural that she should seek to extend her power rather by trade than by conquest. Manners are nonetheless affected by the English regime and that is why in The Spirit of Law Montesquieu returns to the observations he had collected in his Notes on England and the Pensées: the primacy of merit and wealth over nobility, the absence of the more refined forms of civility, the lack of interest in gallantry and the relative hard-heartedness were now seen as the effects of “extreme freedom”, which is the natural correlative of the reign of individual self-interests.
Joseph Dedieu, Montesquieu, l’homme et l’œuvre (1913), Paris: Boivin, 1943.
Charles Eisenmann, “L’Esprit des lois et la séparation des pouvoirs”, in Mélanges Carré de Malberg, Paris: Duchemin, 1933, p. 165-192; republished in Cahiers de philosophie politique, Université de Caen, no. 2-3, 1985.
Charles Eisenmann, “La pensée constitutionnelle de Montesquieu”, in Recueil Sirey du Bicentenaire de “L’Esprit des lois”, 1748-1948 : La Pensée politique et constitutionnelle de Montesquieu, Boris Mirkine-Guetzevitch and Henri Puget (ed.), Paris, 1952, p. 133-160 ; republished in Cahiers de philosophie politique, Université de Caen, no. 2-3, 1985.
Charles Eisenmann, Écrits de théorie du droit, de droit constitutionnel et d’idées politiques, Paris: Panthéon-Assas Paris 2, LGDJ, 2002.
Louis Althusser, Montesquieu, la politique et l’histoire (1959), Paris: PUF, 1964.
Michel Troper, La Séparation des pouvoirs et l’histoire constitutionnelle française (1973), Paris, 1980.
Lando Landi, L’Inghilterra e il pensiero politico di Montesquieu, Padua: CEDAM, 1981.
Pierre Manent, Histoire intellectuelle du libéralisme : dix leçons, Paris: Calmann-Lévy, 1987.
Céline Spector, Montesquieu: pouvoirs, richesses et sociétés, Paris: PUF, 2004.
Guillaume Barrera, Les Lois du monde: enquête sur le dessein politique de Montesquieu, Paris: Gallimard, 2009.
Philippe Raynaud, La Politesse des Lumières: les lois, les mœurs, les manières, Paris: Gallimard, 2013.