Catherine Kintzler
1A Mathematician, philosopher, politician and French revolutionary, Marie Jean Antoine Nicolas de Caritat de Condorcet (1743-1794) is known for his mathematical works, in particular on probability applied to problems of voting (Essai sur l’application de l’analyse […], 1785), for his collaboration with Turgot, his relations with Voltaire and D’Alembert, whose testamentary executor he was, his combats against the death penalty and slavery (Réflexions sur l’esclavage des nègres, 1781), his arguments in favor of admitting women to citizenship (Sur l’admission des femmes au droit de cité, 1790), his theory of education (Cinq mémoires sur l’instruction publique, 1790). His collaboration on the Projet de constitution presented to the Convention in February 1793 by the Girondins – to whom he did not belong – is also well known, and his protest against the Constitution of 24 June 1793 which resulted in an arrest warrant for him, after which he hid out to write the Esquisse d’un tableau historique des progrès de l’esprit humain [‘Sketch of an historical panorama of human spirit’] before being arrested and subsequently found dead in his cell, 8 Germinal an II.
2Montesquieu is discussed or clearly alluded to in numerous texts of Condorcet, notably (unless otherwise noted, reference is to the Arago edition, Paris: Didot, 1847-1849):
– Almanach anti-superstitieux (dated 10 February 1756, ed. Chouillet, 1992, p. 58).
– Lettre d’un théologien à l’auteur du “Dictionnaire des trois siècles” (1774, vol. V, p. 304).
– Réflexions sur la jurisprudence criminelle (1775, vol. VII, p. 20-21).
– Letter to Voltaire, 20 June 1777 (vol. I, p. 151).
– Observations sur le XXIXelivre de “L’Esprit des lois” (1780, vol. VIII).
– Réflexions sur l’esclavage des nègres (1781, vol. VIII, p. 97-98).
– De l’influence de la Révolution d’Amérique sur l’Europe (1786, vol. VIII, p. 11).
– Lettres d’un bourgeois de New Haven à un citoyen de Virginie sur l’inutilité de partager le pouvoir législatif entre plusieurs corps (1787, vol. IX, notably Letter II, p. 10, and Letter IV, p. 83-86).
– Vie de Voltaire. Notes sur Voltaire (1787, vol. IV, p. 375 and 498-502).
– Essai sur la constitution et les fonctions des assemblées provinciales (1788, vol. VIII, p. 185-187).
– Idées sur le despotisme à l’usage de ceux qui prononcent ce mot sans l’entendre (1789, vol. IX, chap. V, p. 150).
– Examen sur cette question : est-il utile de diviser une Assemblée nationale en plusieurs chambres? (1789, vol. IX, p. 359).
3It is above all his political, constitutional and juridical reflection that brings Condorcet to comment on Montesquieu and to furnish in his Observations sur le XXIXelivre de “L’Esprit des lois” (published by Destutt de Tracy in 1819) one of the most severe and debated texts against the theory of intermediary bodies and the regulated balance of powers.
4However, even if Condorcet delivers a vigorous (and sometimes violent) critique, we must emphasize that Montesquieu remains to his eyes one of the pioneers of Enlightenment: he did for the moral sciences what Descartes had done more generally in philosophy and the mathematical and natural sciences. The comparison with Descartes is notably adumbrated in the Essai sur les assemblées provinciales. It is Montesquieu who dared submit moral and political matters to the examination of reason, and his critique of slavery and of the French criminal system testifies to this. In this respect, and also because he is a mind and a writer of the first order, he deserves to be defended and celebrated. Condorcet maintains this position not only in the face of attacks that targeted Montesquieu, but also against Voltaire (whose famous quip he often recalls: “The human race had lost its titles, Montesquieu got them back”), whom he dissuaded in a letter of June 1777 from publishing a text in which Montesquieu is compared unfavorably to the chevalier de Chastellux, concluding his letter by saying that his letter “would harm the good cause because the riffraff that lashes out at Montesquieu and at you would triumph in the division that would arise in the camp of the defenders of humanity.”
5The critique of Montesquieu by Condorcet, principally in Observations sur le XXIXelivre de “L’Esprit des lois”, can be summarized in three points.
61) One factual critique develops a widespread argument (used notably by Voltaire, and which we find again later in a Lettre à Montesquieu sur son manuscrit de “L’Esprit des lois” published in 1789, a text falsely attributed to Helvétius and probably by Lefebvre de La Roche): Montesquieu remains despite all a representative of the old order, a defender of the venality of charges and especially of intermediary bodies for archaic reasons, witness the end of L’Esprit des lois where the theory of abbé Dubos is attacked, such that the great work of Montesquieu can become an “arsenal of prejudices” utilized by the partisans of nobility adversary to the absolute monarchy for feudal reasons. Thus the theory of the balance of powers remains ambiguous since it can serve to support an aristocratic position.
72) The theme of the balance of powers in a “moderate” government does not reduce to a question of ideology. In Condorcet’s eyes it relates to an epistemological position for which Montesquieu must be credited, and which it is appropriate to critique insofar as it is a thought and not a simple bias. Montesquieu subscribes to an empiricist and fragmented vision of the social that constructs the political object by a sort of reflectional judgment: his “disordered method” is in fact related to a form of “impure” rationality (according to the expression of Paul Vernière) that believes one can describe the normative based on the positive, and imagine laws as they must be on the basis of customs as they are. Montesquieu considers positive laws and customs in their specific organization, in their reciprocal coherence, which he also relates to empirical questions of geographical situation and ethnic membership: perhaps too inclined to explain, he puts himself in the position of justifying the unjustifiable (see in particular chapter XI of the Observations: Montesquieu explains the coherence of a criminal system that makes use of torture). In his critique of this experimental point of view, Condorcet sides with Rousseau and in a more general way the philosophical current that conceives the political object as founded on a natural right irreducible from the point of view of its principles and the legitimacy of a social object – we observe the recurrent themes: Montesquieu is more attached to what is than what must be; his method is dispersed; the doctrine of the balance of powers does not refer back to any legitimating foundation, but is only a rationally constructed practice the result of which is contingent. A regulation, however successful, necessarily fails the fundamental question of legitimacy and justice, which relate in part to a determining judgment, the principles of which are a priori rational. An empirical system of regulation or “moderation” can indeed lead to an acceptable legislation, but the question of the foundation of law resides precisely in its mode of production and not in that analysis of its phenomenality:
The spirit of a legislator must be justice, the observation of the natural law [droit] in everything that is properly law. In the rules on the form of judgments or particular decisions, he must seek the best method for making these decisions conform to the law and to truth. It is not by a spirit of moderation, but by a spirit of justice that criminal laws should be mild, that civil laws should tend to equality, and administrative laws tend to the maintenance of freedom and property. (Observations, on ch. I and II)
8Condorcet will generalize this argumentation, directed particularly against the theory of the balance of powers, in texts posterior to the Observations, texts which remain in part unintelligible without the critical reference to Montesquieu:
From the fact that one has managed to make a machine run, by establishing a sort of balance between forces that tended to destroy it, one must not conclude that it is necessary to subject a machine one wants to create to the action of these contrary forces. We also see that the examples that are ordinarily cited prove nothing. The eternal struggle of grandees and populace disrupted the republics of Greece and Italy, and after the oceans of human blood shed in such useless quarrels, a shameful slavery dwelled upon victors and vanquished. But these quarrels supposed the existence of grandees, long since accustomed to wielding power, and a populace weary of that power. One concludes from this that the ancient republics did not subsist because they did not know the art of establishing a balance among the three powers; but one could conclude that they perished because they did not know the means of combining a representative democracy in which there could be both peace and equality.
It is therefore independently of the examples that we must reason here; it is by viewing the law as a common rule, in conformity with justice and reason, to which the citizens must submit those of their actions that, by their nature, must not depend on the individual will of each person; it is by viewing the members of the legislative body as officers charged by the people with searching for these rules; it is following these definitions that it must be shown that men, chosen by the people by some regular procedure, can attain truth only if they are taken separately in several orders […]. It must be shown that it is better to let different interests be between the different classes of society and formalize these divisions by law […]. It must be shown that it is surer to oppose one’s own divisions to the usurpations of the legislative body than to give it as a barrier a declaration of the rights of men, and the impossibility of changing the constitutive laws without the constituted citizens’ approval. [Lettres d’un bourgeois de New Haven à un citoyen de Virginie sur l’inutilité de partager le pouvoir législatif entre plusieurs corps, 1789, [‣]].
93) The originality of Condorcet’s critique appears clearly however beginning with the text of the Observations and makes it possible to dissociate it from a position of Rousseauist type. Indeed, this text does not come down to a criticism pure and simple, but Condorcet invokes a critical arsenal to formulate, in a rather long final passage (ch. XIX), a theory of political legitimacy, which he was to develop subsequently in terms very close to those he uses here, and which does not depend on a contractualist model. That is why one cannot consider the Observations as a simple text of circumstances marked on one hand by the American revolution and on the other by the failure of Turgot’s ministry: it is a stage in the formation of Condorcet’s political thought.
10Against Montesquieu, and in a way comparable to Rousseau, we must look for a foundation of legitimacy that escapes regulation, but this foundation, contrary to what is in Rousseau, does not derive from an agreement of wills. In Condorcet’s eyes, the necessity of legislation as well as its content derive from an agreement of opinions. The rational deduction that produces the law is not of the order of practical reason, but obeys a theoretical rationality the model of which is the search for truth (accompanied by a theory of error) whence has issued a theory of decision. No pre-existing authority, whatever its seat, can found legitimacy. A priori no reason permits subjecting one man to another, or to a group, or to a people, or even to a god. The sole acceptable purpose before which a man can defer, the only one that can be proposed to claim obedience, is a form of truth; only decisions reached for purposes related to the sphere of the true and probable can pretend to have the force of law. This probability of truth first covers the necessity of the decision and then its content. It should be possible to prove: 1) that for such and such an object, it is necessary to develop a common rule; 2) that once this necessity is established, the rule should be such and such. But each time, the procedure of deciding and the procedure of obeying observe a schema of a logical type and not a schema of a political or moral type.
11This is not at all a dogmatic position, which would stem from a belief in the absolute character of truth: the problem is not so much to find the truth on such and such a question (which is moreover not always possible) as to give oneself, at the moment when the decision must be taken, a maximum of guaranties for avoiding error. It is therefore in terms of avoiding error that the fundamental problem of political authority must be posed:
As every legislator can be mistaken, each law needs to be accompanied by the purpose which has led it to be made. This is necessary, both to attach to these laws those who obey them, and to enlighten those who administer them; finally, to prevent pernicious changes, and at the same time facilitate those that are useful. But the exposition of these purposes should be separate from the text of the law, as in a book of mathematics one can separate the series of stated propositions from the work itself that contains the demonstrations. A law is nothing other than this proposition: “It is just or reasonable that… (the text of the law follows). [Observations sur le XXIXe livre de l’Esprit des lois ; on ch. XIX, [‣]]
12This logical position does not have for consequence a “geometric” and “square” rigidity, a sort of juridical fixity – whereas contractualism can go along with a sacralization of the general will insofar as it is will. On the other hand, one easily understands why it is elaborated, in the Observations, supported by the question of the uniformity of the laws, a concept paired with that of equality of rights. The commentary on chapter 18 of book XXIX of L’Esprit des lois (“On ideas of uniformity”) serves indeed as leverage and transition towards the final text in which Condorcet sketches his theory of the foundation of legislation. Condorcet there takes his inspiration from the example of weights and measures (without, of course, taking into account circumstances and purposes for which Montesquieu was hostile to such a uniformization, as Jean Ehrard shows in L’Esprit des mots, ch. 18) to enlarge then the argumentation:
As truth, reason, justice, the rights of men, the interest in property, liberty, security, are the same everywhere, it is hard to see why all the provinces of a state, or even all the states, should not have the same criminal laws, the same civil laws, the same laws of commerce, etc. A good law ought to be good for all, as a true proposition is true for all. [on ch. XVIII]
13And he concludes:
When the citizens obey the laws, what does it matter whether they are obeying the same one? It matters that they obey good laws; and as it is unlikely that two different laws will be equally just, equally useful, it matters also that they obey the same one, for the reason that it is a further means of establishing equality among men. What relationship can the Tartar or Chinese ceremonial have with the laws? This question seems to announce that Montesquieu regarded legislation as a game, where it does not matter which particular rule you follow, provided it an established rule, whatever it may be. But this is not true even of games. Their rules, which seem arbitrary, are almost all based on reasons which the players vaguely sense, and which mathematicians, accustomed to the calculation of probabilities, would be able to explain.
14Condorcet’s position dominates a skeptical modern French tradition (distinct from the “Quarrel over L’Esprit des lois”) with regard to Montesquieu. Including disparate authors – Voltaire, Rousseau, Destutt de Tracy – it is found again in the 20th century, with Albert Mathiez (1930) and Louis Althusser (1959). This universalist constant, fed by very diverse sources, has provoked the suspicion of a “condescending” attitude (Corrado Rosso, ch. 1) stemming from a problem of “collective psychology” (Paul Vernière, p. 137). Condorcet has his place in it in a vigorous manner that has nothing to do with psychology: for his universalism does not depend on a sacralization of the union of wills, nor on a philosophy of history either, but on a theory of the reason for believing in which the law is not seen as an expression, but as the result always still at work of a reasoned reflection.
Bibliography
Sources
Condorcet, Œuvres, ed. François Arago, Paris: Didot, 1847-1849, 12 vol. in-8° (reference edition).
Recent Editions
Observations sur le XXIXelivre de “L’Esprit des lois”, in Cahiers de philosophie politique et juridique, Université de Caen, 1985.
Excerpts from: Lettres d’un bourgeois de New Haven à un citoyen de Virginie sur l’inutilité de partager le pouvoir législatif entre plusieurs corps; Idées sur le despotisme à l’usage de ceux qui prononcent ce mot “sans”; Examen sur cette question: est-il utile de diviser une assemblée nationale en plusieurs chambres? Déclaration des droits, in Rue Descartes no. 3, “Citoyenneté, démocratie, république”, Paris: Albin-Michel, 1992, p. 35 ss. (ed. Catherine Kintzler).
Almanach anti-superstitieux, ed. Anne-Marie Chouillet, P. Crépel, Henri Duranton, Saint-Etienne: CNRS Éditions, 1992.
Vie de Voltaire, ed. Elisabeth Badinter, Paris: Quai Voltaire, 1994.
Auguste Comte, “Plan des travaux scientifiques nécessaires pour réorganiser la société” (1822), in Système de politique positive, IV, Paris: L. Mathias, 1851-1854. Published by Juliette Grange in Philosophie des sciences, Paris: Gallimard-Tel, 1996; Cours de philosophie positive (1830-1842), lesson 47, ed. Juliette Grange, lessons 47-51, Paris: GF-Flammarion, 1995.
Antoine Destutt de Tracy, Commentaire sur “L’Esprit des lois” de Montesquieu, suivi d’observations inédites de Condorcet sur le vingt-neuvième livre du même ouvrage et d’un mémoire sur cette question : quels sont les moyens de fonder la morale d’un peuple? Liège: Desoër, 1817; Paris, 1819.
Pierre Le Mercier de La Rivière, L’Ordre naturel et essentiel des sociétés politiques, London: Nourse, 1767; ed. Francine Markovits, Paris: Fayard, 2001.
Lettre d’Helvétius à Montesquieu sur son manuscrit de l’Esprit des lois in Claude Adrien Helvétius, Lettres de M. Helvétius au président de Montesquieu et à M. Saurin, relatives à l’aristocratie de la noblesse, (s. l.), 1789, published by Lefebvre de La Roche in Œuvres complètes d’Helvétius, Paris: Didot, 1795, vol. 13. On the falsity of the attribution to Helvétius and the more likely attribution to Lefebvre de La Roche, see Richard Koebner, “The Authenticity of the Letters on the Esprit des lois attributed to Helvétius », Bulletin of the Institute of Historical Research, London: Longmans, Green, May 1951, vol. XXIV, no. 69, p. 19-43.
Studies
Élie Carcassonne, Montesquieu et le problème de la constitution française au XVIIIe siècle, Paris, 1927 (repr. Geneva: Slatkine, 1970), ch. 7.
Albert Mathiez, “La place de Montesquieu dans l’histoire des doctrines politiques du XVIIIe siècle”, Annales historiques de la Révolution française 7 (1930), p. 97-112.
Louis Althusser, Montesquieu, la politique et l’histoire, Paris: PUF, 1959.
Corrado Rosso, Montesquieu moraliste: des lois au bonheur, trans. Marc Régaldo, Bordeaux: Ducros, 1971, ch. 1.
Simone Goyard-Fabre, La Philosophie du droit de Montesquieu, Paris: Klincksieck, 1973, p. 362.
Paul Vernière, Montesquieu et “L’Esprit des lois” ou la raison impure, Paris: SEDES, 1977, p. 134 ss.
Elisabeth and Robert Badinter, Condorcet: un intellectuel en politique, Paris: Fayard, 1988, p. 151 et 537.
Jean-Paul Joubert, “Condorcet et les trois ordres”, Condorcet mathématicien, économiste, philosophe, homme politique, Paris: Minerve, 1989, p. 305-312.
Catherine Kintzler, “Condorcet et la lettre des lois”, ibid., p. 279-287.
Maria Ludassy, “La tradition libérale divisée: Condorcet et Burke devant les révolutions anglaise, américaine et française”, ibid., p. 341-348.
Jean Goldzink, “Destutt de Tracy et Montesquieu”, in Scepticisme et exégèse, hommage à Camille Pernot, special issue of Cahiers de Fontenay, École Normale Supérieure de Fontenay-Saint-Cloud, December 1993, p. 275-280.
Robert Niklaus, “Condorcet et Montesquieu: conflit idéologique entre deux théoriciens rationalistes”, Dix-Huitième Siècle 25 (1993), p. 399-409.
Catherine Kintzler, “Condorcet critique de Montesquieu et de Rousseau”, Bulletin de la Société Montesquieu, 1994, no. 6, p. 10-31; repr. in C. Kintzler, La République en questions, Paris: Minerve, 1996, p. 175-190.
Jean Ehrard, “Condorcet lecteur de Montesquieu: l’aune ou le mètre?”, Ici et ailleurs : le dix-huitième siècle au présent. Mélanges offerts à Jacques Proust, Tokyo, 1996 (repr. in J. Ehrard, L’Esprit des mots: Montesquieu en lui-même et parmi les siens, Geneva: Droz, 1998, p. 295-306.
Horst Dippel, “Condorcet et la discussion des constitutions américaines en France avant 1789”, Condorcet, homme des Lumières et de la Révolution, Fontenay-aux-Roses: ENS éditions Fontenay / Saint-Cloud, 1997, p. 201-206.
Manuela Albertone, “Condorcet, Jefferson et l’Amérique”, ibid.
Georges Benrekassa, “Montesquieu an 2000: bilans, problèmes, perspectives”, Revue Montesquieu 3 (1999), http://montesquieu.ens-lyon.fr/IMG/pdf/RM3-5-39.pdf.
Catherine Larrère, Actualité de Montesquieu, Paris: Presses de la Fondation nationale des sciences politiques, 1999 (p. 9; p. 119 ss.).