OutlineThe legislator in the mirror of the novel
The legislator before the spirit of law
The paradoxes of the legislator
1A great Enlightenment figure, the legislator is doubtless the ideal reader of L’Esprit des lois, because it is his task to apply “human reason” in the form of specific civil and political laws, in a position to found or best conserve the nature, principle and general spirit of a nation (I, 3). A grand and probably aporetic mission.
2The Mémoire sur les dettes de l’État (‘Memoir on public debts’, 1715) proves Montesquieu’s precocious interest for is most technical about legislation, but also, in his terms, what is most “singular and extraordinary” about it when it sidetracks prejudice to the benefit of inventive reason (OC, t. VIII, p. 64). But the French monarchy, once the Regency was past and the Club de l’Entresol closed down, was not in a position to hear the brilliant reasoning of a Montesquieu. He would thus never, unlike Rousseau or Locke, have to play the role of legislator.
3The founding power and his wisdom are at once magnified in the Dissertation sur la politique des Romains dans la religion (‘Dissertation on the Romans’ religious policy’, 1716). “Romulus, Tatius and Numa subordinated the gods to politics” whereas other peoples “made the state for religion” (OC, t. VIII, p. 83). Thus Rome lacked “moral principles”. But reforming religion would have weakened its authority; they established new laws, for “human institutions can well change, but divine institutions must be immutable, like the gods themselves” (“les institutions humaines peuvent bien changer, mais les divines doivent être immuables comme les dieux mêmes”, p. 84). Ridiculous in itself, the Romans’ popular superstition was knowingly organized to deceive a violent people, without fooling the senators. The Primacy of the political, the necessity of moral rules, reforming prudence, with account taken of the orders of laws and the diversity of social forces, the pre-eminence of a people’s particular genius, the superior rationality hidden behind apparent illogic, the constancy of principles: so many fundamental themes for Montesquieu’s reflection in these first admiring pages on Roman legislators!
The legislator in the mirror of the novel
4Where will we find an image of the legislator in the Persian Letters? Usbek of course first comes to mind, the master of a seraglio in which he clearly intends to apply “blindly” the “laws of propriety and modesty” (“lois de la pudeur et de la modestie”, LP, [‣]). The master’s absence, by aggravating the war of wives and eunuchs, leads to a disorder that calls down repressive fury and provokes a parallel with the state of France ravaged by the reforms of John Law (LP, [‣]). In fact, what can one reproach Usbek for? He leaves town to save his neck and it is not in his power, even if he so wished, to reform the laws of the seraglio, a central institution of the Orient, of which L’Esprit des lois will reveal, over against the Persian Letters, the moralizing function within despotic societies (EL, XVI). But the author of Letter [‣] – “Advantages of the restraint and disadvantages of the severity of laws” (“Avantages de la douceur et inconvénients de la sévérité des lois”) – is incapable of conducting himself as a lucid and moderate legislator, so greatly does the seraglio, by its nature, unleash the most furious passions, to the point of risking his head to punish wives he does not desire and slaves he despises.
5It remains that this violence is in conformity with the laws of his country and even, apparently, with the religious precepts. By proclaiming that she has on her own initiative “reformed” Usbek’s laws and those of his “awful seraglio” after “the laws of nature” (LP, [‣]), Roxane raises, but does not solve or even justify, a huge problem that remains hanging: can an individual defy the laws, violate oaths and duties, make a supreme “virtue” of his or her pleasure (adultery)? The conflict in interpretation on the seraglio’s legislation which comes to the fore in the final letter is an aporia. For it would be naive to believe, based on our prejudices, that with Roxane Montesquieu is making an apology for revolt against the laws in the name of desire! In short, the fable of the seraglio, were one to read the Persian Letters without anticipating L’Esprit des lois, would confirm rather well this judgment of Usbek’s: “Most legislators have been limited men, whom chance has placed in charge of others, and who have consulted nothing but their prejudices and fantasies. […] They have amused themselves creating puerile institutions […]” (“La plupart des législateurs ont été des hommes bornés, que le hasard a mis à la tête des autres, et qui n’ont presque consulté que leurs préjugés et leurs fantaisies. […] ils se sont amusés à faire des institutions puériles […]”). But he also adds, in the author’s name: “Whatever the laws, they must always be followed and regarded as the public conscience, by which that of individuals must always abide” (LP, [‣]).
6If the joint furies of Usbek and Roxane, in the nexus of the seraglio, stem from the very nature of despotism, Law incarnates, on the book’s occidental slope, a major theme of reflection on the legislator, in the tradition of Machiavelli and Montaigne – the dangers of reforming desire: “It is sometimes necessary to change certain laws. But the case is rare, and when it happens, they should be touched only with trembling hands” (“Il est quelquefois nécessaire de changer certaines lois. Mais le cas est rare, et, lorsqu’il arrive, il n’y faut toucher que d’une main tremblante”, LP, [‣]). With Law, as with Richelieu, there comes on the contrary a time of “violent remedies”, of “new projects”, “new systems” “which great geniuses work on night and day […] within impenetrable studies” (“que de grands génies travaillent nuit et jour […] dans le fond d’un cabinet impénétrable”), at the risk of undoing France (LP, [‣]). However, Montesquieu judged favorably, in the same letter, a robust and brief innovation, the Regent’s polysynodie (1715-1718), which was supposed to moderate royal absolutism to the benefit of the nobility. The hatred of reforms is thus not absolutely independent of their content, nearly always favorable to the insidious but continual extension of monarchical and ministerial power. But incontestably, the only good legislator is sober, circumspect, cautious, more intent on preservation than on innovation. Sometimes necessary, reform is first of all a mark of time that drains and corrupts. As proof of this, the apologue of the Troglodytes, prey to revolutions (Letters [‣] to [‣]) and the vigorous remarks, in the writer’s personal notes, against the ministers who make the bed of despotism. To be sure, this judgment does not apply to legislator-founders, the Solons and Lycurguses and other immortal builders of peoples. Yet one could hardly say that Letter [‣] on Russia, speaking of the czar who wants to “change everything”, betrays the same civilizing enthusiasm as Voltaire, ten years later, in his History of Charles XII.
The legislator before the spirit of law
7The legislator does not work in a utopia, but on determined men who form collectivities motivated by distinct penchants. It is consequently out of the question to define an ideal government, founded on a reason of global vocation, on a uniform or original nature (for example, the family and paternal power, exalted by some as the natural monarchical model of political power). Thus, “the government the most in conformity with nature is the one the particular disposition of which is best related to the disposition of the people for whom it is established” (“le gouvernement le plus conforme à la nature est celui dont la disposition particulière se rapporte mieux à la disposition du peuple pour lequel il est établi”, EL, I, 3). No more than is there a government more natural than another to which legislative reason should conform, should it think of imitating or exporting: the laws “must be so specific to the people for whom they are made, that it is a very great accident if those of one nation are suitable for another” (“doivent être tellement propres au peuple pour lequel elles sont faites, que c’est un très grand hasard si celles d’une nation peuvent convenir à une autre”, EL, I, 3). Indeed, the particularity of a people is composed by all the interconnecting relations examined in L’Esprit des lois and which are summarized in book I, chapter 3. It is thus absurd to pretend to upset the established government, to enjoy hating it, “for, as it is impossible to change governments without changing manners and mores, I cannot see, given the extreme brevity of life, what use it would be for men wholly to abandon the habits they have assumed” (“car, comme il est impossible d’en changer, sans changer de manières et de mœurs, je ne conçois pas, vu l’extrême brièveté de la vie, de quelle utilité il serait pour les hommes de quitter à tous les égards le pli qu’ils ont pris”, Pensées, no. 934). Such strong habits that the English, after Cromwell and the republic, immediately had to find their way back to monarchy. As everything is interconnected, it is as unadvisable and really tyrannical to pretend to export a religion as a mode of government (EL, XXIV, 25-26). One can consequently advance this law, that there are “hardly any but intolerant religions that have a great zeal for establishing themselves elsewhere” (“guère que les religions intolérantes qui aient un grand zèle pour s’établir ailleurs”, EL, XXV, 10). And so to propose to the legislator “the fundamental principle of political laws regarding religion. When it is in one’s power to accept a new religion or not into a state, it should not be established; once it is established, it must be tolerated” (ibid.). A remark impeccably in keeping with the founding logic of L’Esprit des lois, but hardly agreeable to clerical ears and intensely current under the new religion of the rights of man sustained by arms.
8The legislator’s duty of prudence and moderation comes from the very logic of law as relation, the essence of the spirit of law. It is precisely this primacy of reality and its immanent logic that violently disconcerted Condorcet, in his Observations on book XXIX, as well as Destutt de Tracy, both of them attached, as emancipated disciples of Voltaire, Turgot and Rousseau, to defining law as a universal norm emanating from reasoning reason finally conscious of itself at the end of its path through History.
The paradoxes of the legislator
9To conclude from this that the legislator owes respect to the contingent and always intelligible order of things would however be a grave misreading, constantly rejected in L’Esprit des lois. To be persuaded of this, it takes no more than a glance at the article “Legislators” in the analytic table of contents: “How they can bring back the spirits of a people made too horrible by excessive travails, VI, 13”, “A fine rule they must follow, XV, 16”, “With what spirit they must be motivated, XXIX, 1”, etc. Though concern for understanding can make of Montesquieu the great precursor of the sociological spirit, it cannot disguise the prescriptive and corrective penchant of L’Esprit des lois, incarnated in the figure of the wise legislator who finds his ideal model in Solon (XIX, 21). The good legislator does not yield to the force of things, he owes it to himself to know it the better to overcome vices. Whence this paradox: “the people of these [warm] climates have more need of a wise legislator than the peoples of our own” (“les peuples de ces climats [chauds] ont plus besoin d’un législateur sage que les peuples du nôtre”), so as to be led “by reason” and not by “prejudices” (XIV, 3). “The more the physical causes incline men to repose, the more the moral causes must remove them from it”, as did “the legislators of China”, unlike “Foe, legislator of the Indes”, whose “doctrine, taken from the lethargy of the climate […] caused a thousand ills” (“la doctrine, née de la paresse du climat, […] a causé mille maux”, XIV, 5). This Indian “metaphysical system” indeed obeys a strong natural reason which legislative reason must combat. Similarly, when “the physical power of certain climates violates the natural law of the two sexes and that of intelligent beings, it is for the legislator to make civil laws that reinforce the nature of the climate and re-establish the primitive laws” (“la puissance physique de certains climats viole la loi naturelle des deux sexes et celle des êtres intelligents, c’est au législateur à faire des lois civiles qui forcent la nature du climat et rétablissent les lois primitives”, XVI, 12).
10Is this then to say that the legislator finds himself finally invested with a grandiose mission to struggle against Oriental despotism, although defined as a regime without laws or rules, led by unenlightened ministers, entirely given over to fear, violence, and passiveness? It is permitted to doubt this: “It is a capital maxim that one must never change the mores and manners in the despotic state; nothing would be more promptly followed by a revolution. For in such states there are, so to speak, no laws; there are only mores and manners; and if these are overturned, everything is overturned” (“C’est une maxime capitale, qu’il ne faut jamais changer les mœurs et les manières dans l’État despotique; rien ne serait plus promptement suivi d’une révolution. C’est que dans ces États, il n’y a point de lois, pour ainsi dire; il n’y a que des mœurs et des manières ; et, si vous renversez cela, vous renversez tout”, XIX, 12). While laws are “the legislator’s particular and precise institutions, mores and manners institutions of the nation in general”. A despotic prince who wanted to change mores and manners would be doubly mistaken, both on the nature of despotism and on the “natural means” of such a change which are to reform “by laws what is established by laws, and […] by manners what is established by manners” (“des institutions particulières et précises du législateur; et les mœurs et les manières, des institutions de la nation en général”, “par les lois ce qui est établi par les lois, et […] par les manières ce qui est établi par les manières”, XIX, 14). Peter the Great committed this mistake, wanting to change manners with laws accompanied with severe punishments and properly tyrannical, instead of proceeding by the gentleness of example, by favoring new manners over old ones.
11But was he not wrong to try to police his nation by apparently violating the “capital maxim” established in XIX, 12, which forbids interfering with the mores and manners of a despotic state? Montesquieu rejects such a contradiction. The Muscovite “facility of changes” testifies first to the uselessness of the brutal method used and then proves the ultimately factitious or secondary character of Russian despotism: “what made the change easier was that the mores of the time [previous to reform] were foreign to the climate, and had been brought there by the mixture of nations and the [Tartar] conquests” (“ce qui rendit le changement plus aisé, c’est que les mœurs d’alors [antérieures à la réforme] étaient étrangères au climat, et y avaient été apportées par le mélange des nations et par les conquêtes [tartares]”). In fact he gave “European mores and manners to a European nation”, but by despotic procedures of Asian type, contrary to the Russian climate. An extraordinary example of the legislator who succeeds though wrong about everything: about the nature of his peoples who, despite what he said, “were not stupid”, about the method, about the meaning of his success (XIX, 14)! The Russian example, despite clear appearances, proves on the one hand that genuine despotism escapes the legislator’s control and that, on the other, “the domination [empire] of the climate is the first of all empires” (“l’empire du climat est le premier de tous les empires”), finally that the legislator must not succumb to the vertigo that can threaten him, that of all-powerfulness: “law is not a pure act of power” (“la loi n’est pas un pur acte de puissance”, XIX, 14), which can put everything under its sword. “There are two sorts of tyranny: one real, consisting in the violence of government, and one of opinion, which becomes evident when those who govern establish things that conflict with a nation’s manner of thinking” (“Il y a deux sortes de tyrannie : une réelle qui consiste dans la violence du gouvernement, et une d’opinion qui se fait sentir lorsque ceux qui gouvernent établissent des choses qui choquent la manière de penser d’une nation”, XIX, 3). From this point of view, Montesquieu incontestably can be invoked by adversaries of globalization or forced uniformization. “I say, and it seems to me I have written this work only to prove it: the legislator’s spirit must be the spirit of moderation”(“Je le dis, et il me semble que je n’ai fait cet ouvrage que pour le prouver : l’esprit de modération doit être celui du législateur”, XXIX, 1).