Vasudev Kaga

B.A. (Prog.)
Batch of 2020

Abstract: to understand the nature and dimensions of political theory of

Montesquieu focusing primarily of his understanding of Separation of Power and
Liberty by attempting to comprehend the first three books of The Spirit of the Laws.

Montesquieu was one of the great political philosophers of the Enlightenment. Insatiably curious and
mordantly funny, he constructed a naturalistic account of the various forms of government and of the
causes that made them what they were that advanced or constrained their development. He used this
account to explain how governments might be preserved from corruption. He saw despotism, in particular,
as a standing danger for any government not already despotic, and argued that it could best be prevented
by a system in which different bodies exercised legislative, executive, and judicial power, and in which
all those bodies were bound by the rule of law also called the Theory of Separation of Power1.

The Spirit of the Laws

Montesqueau’s aim in The Spirit of the Laws is to explain human laws and social institutions. This might
seem like an impossible project: unlike physical laws, which are, according to Montesquieu, instituted
and sustained by God, Positive Laws2 and Social institutions are created by fallible human beings who are
"subject ... to ignorance and error, [and] hurried away by a thousand impetuous passions" (SL 1.1). One
might, therefore, expect our laws and institutions to be no more comprehensible than any other catalog of
human follies- an expectation which the extraordinary diversity of laws adopted by different societies
would seem to confirm.

Nonetheless, Montesquieu believes that this apparent chaos is much more comprehensible than one might
think. In his view, the key to understanding different laws and social systems is to recognize that they
should be adapted to a variety of different factors, and cannot be properly understood unless one

1
This theory of the Separation of Power had an enormous impact on liberal political theory and on the framers of
the constitution of the United States of America.
2
He refers to Positive Laws as those that are governed by human social requirements as distinguished from
Natural Laws.
considers them in this light. Specifically, laws should be adapted "to the people for whom they are
framed...to the nature and principle of each government....to the climate of each country, to the quality of
its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen,
huntsmen or shepherds: they should have relation to the degree of liberty which the constitution will bear;
to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.
In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the
order of things on which they are established; in all of which different lights they ought to be considered"
(SL 1.3). When we consider legal and social systems in relation to these various factors, Montesquieu
believes, we will find that many laws and institutions that had seemed puzzling or even perverse are in
fact quite comprehensible.

Understanding why we have the laws we do is important in itself. However, it also serves practical
purposes. Most importantly, it will discourage misguided attempts at reform. Montesquieu is not a
utopian, either by temperament or conviction3. If we understand our system of government, and the ways
in which it is adapted to the conditions of our country and its people, we will see that many of its
apparently irrational features actually make sense, and that to 'reform' these features would actually
weaken it. Thus, for instance, one might think that a monarchical government would be strengthened by
weakening the nobility, thereby giving more power to the monarch. On Montesqueau’s view, this is false:
to weaken those groups or institutions which check a monarch's power is to risk transforming monarchy
into despotism, a form of government that is both abhorrent and unstable4.

Understanding our laws will also help us to see which aspects of them are genuinely in need of reform,
and how these reforms might be accomplished. For instance, Montesquieu believes that the laws of many
countries can be made be more liberal and more humane, and that they can often be applied less
arbitrarily, with less scope for the unpredictable and oppressive use of state power. Likewise, religious
persecution and slavery can be abolished, and commerce can be encouraged. These reforms would
generally strengthen monarchical governments, since they enhance the freedom and dignity of citizens. If
lawmakers understand the relations between laws on the one hand and conditions of their countries and
the principles of their governments on the other, they will be in a better position to carry out such reforms
without undermining the governments they seek to improve.

Montesquieu classifies three ‘species’ of government: Republican, Monarchical, and Despotic. A

Republican government is one where an individual or body is ‘possessed’ of power. In a Monarchy,
single individual exercises supreme power through established law. The source of all power and functions
is derived from an individual in case of Despotism.

3
He believes that to live under a stable, non-despotic government that leaves its law-abiding citizens more or less
free to live their lives is a great good, and that no such government should be lightly tampered with.
In other words, he doesn’t equate Monarchy with Despotism and thus creates a possibility of liberal Monarchy.
4

One has to consider the temporal-spatial dimensions of his writings to construe this better.
When body of people is possessed of supreme power, it is Democracy. Depending upon situation, an
individual can be sovereign or subject in a Democracy. A suffrage based on complete information is
fundamental to such Democratic system5. People should exercise supreme power and function: that which
exceeds their abilities should be representatively performed by ‘ministers’. Such ministers should be
chosen at the will of people. Qualification of people choosing their representatives (magistrates, judges,
ministers) should not be questioned. But people should not surpass their abilities: by conducting intricate
affairs, seizing powers and critical movements. The conduct of business should not be too fast or too slow.
The working pace of state and its subject should be separated. The prosperity and life of a Democracy
depends on how stratified classes are ‘created’ by legislators or the representative body in due course of
time. The methods of distribution of suffrage and division of those who have suffrage have a deep relation
to the strengthening and survival of Democracy. Suffrage should be public in a democracy unlike Rome
where it was secret. In a Democracy people should have sole power of enacting laws and they should be
ratified by them as well.

The legislative and executive powers in Aristocracy are concentrated in the hands of a certain number of
persons. Rests of people are subjects for them as in case of a monarchy. Given the multiplicity of nobility,
there should a senate to regulate the affairs of the government. The senators should, by no means, have
the right to nominate the members. The sudden rise of individual to power should be checked as this
becomes more dangerous and abusive than monarchy. Exception to such rise of power is permitted due to
extraordinary situation. Unlimited authority may be exercised but should be compensated by the brevity
of time. The best aristocracy is one where aristocrats are responsible to legislature. Those who are not
attached to the body should have insignificant bearing upon decision-making process. The more an
aristocratic government tilts towards democracy, the more towards perfection. Its inclination towards
monarchy makes it imperfect. But the most imperfect of all is that in which the part of the people that
obeys is in a state of civil servitude to those who command.

The nature of monarchical government is constituted by ‘intermediate, subordinate and dependent

powers’. In monarchies the prince is the source of all power, political and civil. Laws, in a monarchy,
function through an intermediate channel from which power flows. Since everything is contingent upon
the will of an individual prince, everything is momentary and nothing is permanent. The most natural
power exercised in a monarchy is that of nobility. A maxim should be observed: no monarch, no nobility;
no nobility, no monarch. Any attempt to abolish nobility ends up harming the subject.6 The patrimonial
jurisdiction of lords and clergy should not be diminished which has continued since ‘time immemorial’
but such jurisdictions may be fixed in a constitution where the aim should be to check the despotism of
the monarch. Intermediate power is not the only requirement in a monarchy. There is also a need of
‘depositary of laws’. This depositary can only be the judges of the ‘Supreme Courts of Justice’, who
promulgate the new laws, and revive the obsolete. The natural ignorance of nobility and corruption of
civil government make them unfit for interfering in law-making process. The council of Prince is
essentially a collection of the momentary will of the monarch and not of fundamental laws. The
substantial privilege and influence that is enjoyed by religious laws are mainly due to the lack of any
fundamental law of the land.

5
The number of individual representing the public assembly should be fixed and expanded only at intervals.
6
Any dilution in the privileges of nobility only leads a more strong and despotic prince
A despot, whose senses continually inform that he himself is everything and that his subjects are nothing,
is naturally lazy, voluptuous, and ignorant. Consequently, he starts ignoring management of public affairs.
It is, therefore, more natural for him to resign it to a vizir, and to invest him with the same power as
himself. The creation of a vizir is a fundamental law of this government7.

Montesquieu on Liberty

Montesquieu is among the greatest philosophers of liberalism, but his is what Shklar has called ‘a
liberalism of fear’). According to Montesquieu, political liberty is ‘a tranquility of mind arising from the
opinion each person has of his safety’. Liberty is not the freedom to do whatever we want: if we have the
freedom to harm others, for instance, others will also have the freedom to harm us, and we will have no
confidence in our own safety. Liberty involves living under laws that protect us from harm while leaving
us free to do as much as possible, and that enable us to feel the greatest possible confidence that if we
obey those laws, the power of the state will not be directed against us.

If it is to provide its citizens with the greatest possible liberty, a government must have certain features.
First, since ‘constant experience shows us that every man invested with power is apt to abuse it ... it is
necessary from the very nature of things that power should be a check to power’. This is achieved through
the separation of the executive, legislative, and judicial powers of government. If different persons or
bodies exercise these powers, then each can check the others if they try to abuse their powers. But if one
person or body holds several or all of these powers, then nothing prevents that person or body from acting
tyrannically; and the people will have no confidence in their own security.

Certain arrangements make it easier for the three powers to check one another. Montesquieu argues that
the legislative power alone should have the power to tax, since it can then deprive the executive of
funding if the latter attempts to impose its will arbitrarily. Likewise, the executive power should have the
right to veto acts of the legislature, and the legislature should be composed of two houses, each of which
can prevent acts of the other from becoming law. The judiciary should be independent of both the
legislature and the executive, and should restrict itself to applying the laws to particular cases in a fixed
and consistent manner, so that ‘the judicial power, so terrible to mankind…becomes, as it were, invisible",
and people "fear the office, but not the magistrate’.

Liberty also requires that the laws concern only threats to public order and security, since such laws will
protect us from harm while leaving us free to do as many other things as possible. Thus, for instance, the

7
He points out that extensiveness of empire and personal engagements of a despot makes him less caring and
more voluptuous.
laws should not concern offenses against God, since He does not require their protection. They should not
prohibit what they do not need to prohibit: ‘all punishment which is not derived from necessity is
tyrannical. The law is not a mere act of power; things in their own nature indifferent are not within its
province’. The laws should be constructed to make it as easy as possible for citizens to protect themselves
from punishment by not committing crimes. They should not be vague, since if they were, we might
never be sure whether or not some particular action was a crime8. Finally, the laws should make it as easy
as possible for an innocent person to prove his or her innocence. They should concern outward conduct,
not (for instance) our thoughts and dreams, since while we can try to prove that we did not perform some
action, we cannot prove that we never had some thought. The laws should not criminalize conduct that is
inherently hard to prove, like witchcraft; and lawmakers should be cautious when dealing with crimes like
sodomy, which are typically not carried out in the presence of several witnesses, lest they "open a very
wide door to calumny’. Montesqueau’s emphasis on the connection between liberty and the details of the
criminal law were unusual among his contemporaries, and inspired such later legal reformers as Cesare
Beccaria.

In conclusion, suffice it to say that Montesquieu shows typical attitudes of Enlightenment and puts logic
and reason above divinity or religion; this he does, however, cautiously given the spatial-temporal reality
of his times. Contrary to popular understanding, he never advocated one form of government or politics
over other and sometimes even counted the merits of despotism. Montesquieu would be the best figure to
understand the inner contradictions of Enlightenment as also its merits.

BIBLIOGRAPHY

 Thomas Nungent’s translation of The Spirit of the Laws (1752)

 From Plato to Marx: A history of Western Political Thought, Macmillan Publication, New Delhi,
2012

88
Nor should they prohibit things we might do inadvertently, like bumping into a statue of the emperor, or
involuntarily, like doubting the wisdom of one of his decrees; if such actions were crimes, no amount of effort to
abide by the laws of our country would justify confidence that we would succeed, and therefore we could never
feel safe from criminal prosecution.