The Ethics of Montesquieu and the Natural Laws*

 

by Dr. J. Loubet

 

(based on the works of Professors W. B. Allen

and R. M. Peterson,  of Claremont, California)

 

            The epithet of moralist is not that which is most often associated with the name, Montesquieu.  The author of the Persian Letters and The Spirit of the Laws is considered above all as an incisive critic of the society of the eighteenth century and the rigorous theoretician of the separation of political powers.  This fails to recognize one important part of his work, which merits a more just appreciation.

 

            Now comes to us from California, a region reputed to be permissive, an apology for the morality of Montesquieu and his role distinguished as predominant in the elaboration of the democratic political system in general, and that of the United States of America in particular.

 

            The professors W. B. Allen and R. M. Peterson of Claremont have, in effect, come to publish in support of their candidacy for the 1986 Montesquieu Prize:

 

The Ethics of Montesquieu

Principle of the Foundation of American Democracy

and

 

Montesquieu and the Return to Natural Laws.

 

            The objective of their thesis is to demonstrate that morality is indeed the basis of the entire original political conception of Montesquieu and that The Spirit of the Laws represents a return to the cradle of right, conforming to nature (a revolution of natural law: Peterson).

 

            After having attempted to classify Montesquieu among the humanist, scientific, or political philosophers strictly considered, the authors claim that the name, Montesquieu, personifies a synthesis of all these disciplines.  It is this universality that constitutes the richness of the ideas expressed in his works.

 

            Participating with 18th century philosophers in the generous design to create a more just and liberal society, but less certain than Rousseau of the wisdom of the human race, Montesquieu established the imperious necessity of the laws for the establishment and the sound functioning of all life in society.

 

            After having defined the laws, in the first chapter of Book One of The Spirit of the Laws, as the “relationships that derive from the nature of things,” Montesquieu takes up the classification of Domat, the Jansenist magistrate whose “Treatise on the nature and the spirit of the laws” he had read and whose title he had borrowed, by distinguishing:

 

1st:        The natural or immutable laws that are the work of God are, he writes in the second chapter, the laws that men receive from nature (of which God is the creator) prior to the establishment of societies.

 

            Grotius, a Dutch philosopher from the 17th century, had been more explicit in affirming that they represent certain principles of reason, which make known to us that an action is good or bad according to the conformity it has with nature and, as a consequence, with God, who is the author.

 

2d:       The positive or arbitrary laws, described in the third chapter as being the work of men in society.

 

The natural laws are anterior to the positive laws.

 

            Montesquieu affirms, in particular, that “justice is eternal and exists prior to all human and social convention.”  This opinion is completely contrary to the ideas of Hobbes.

 

            Among the natural laws, Montesquieu also cites in the brief second chapter:

 

-         the idea of the creator;

-         peace, because man, a fragile being, dreams of his own preservation, whence his natural pacificism, which is not recognized by Hobbes, for whom the state of nature is a state of war;

-         the need to nourish oneself, to clothe oneself, to have knowledges, to live in society;

-         the attraction between the sexes, pleasure initiating the perpetuation of the species.

 

Shackleton had found other natural laws in analyzing the Pensées and he cites, among others: the aptitude for reasoning and the fear of death.

 

Allen and Peterson insist upon liberty (“that good which makes all the other goods enjoyable”) and equal rights (the foundation of every democratic regime) in order to confirm their thesis, drawn from other chapters of Montesquieu's work.

 

      Experience unhappily shows that despite these ideal natural laws, given by the creator, the state of war and inequality appears as soon as men begin to live in society.

 

      The only remedy, then, is the law, which Montesquieu divides into civil law, political law, and the law of nations.

 

      In order to make the laws more efficacious, Montesquieu endeavors to make them normative; that is to say, hold them as obligatory, and to treat them as sciences, thus realizing first of all a science of the laws applicable to politics. This is the reason that he is considered as the creator of political science.

 

      He will, moreover, give an ethical meaning to the law, by identifying it with a “moral rule imposing that which is good and praiseworthy,” whereas Hobbes, always the pessimist, saw in the law only a commandment whose precept contains within itself the reason for obedience.

 

            The originality of the ideas of Montesquieu is, therefore, the absolute necessity of associating ethics with politics.

 

            For Montesquieu, in effect, man must be virtuous.

 

            Up until then folk had known in the word virtue only a meaning that was moral (the most habitual, martial, and intellectual—dear to philosophers); Montesquieu adds to it a political meaning, after having defined it as the “self-renunciation of one’s desires and one’s interests (even legitimate ones) for the greater good of all.”  Thus was born POLITICAL VIRTUE, which he expresses in these superb lines:

 

When virtue ceases, ambition enters the hearts; that which was a maxim, folk call rigor, what was a rule, they call vexation . . . and so the republic becomes a spoil, and its force is no more than the power of several and the license of all.

 

            And Montesquieu gives some probative examples in “The History of the Troglodytes,” recounted in The Persian Letters, and in Considerations on the Causes of the Greatness and the Decadence of the Romans: “the emperors who had this morality were admirable princes, and those who did not have it, monsters.”

 

            Let us not forget, also, “that it is virtue that inspires moderate regimes and, in particular, the democratic regime; whereas it is less necessary in a monarchical regime by reason of the intermediate powers.  This virtue exists in the state of nature.”

 

            Allen, who had the merit of editing Lysimaque in California, in underscoring the philosophic valor of this fable, firmly defends the authenticity of the “Essay Concerning the Natural Laws and the Distinction between the Just and the Unjust.”  Now, it is indeed necessary to observe that this essay does not figure in recent editions of The Spirit of the Laws.

 

            In opposition to the opinion of Shackleton, but in line with those of Gabriel Bertrand, who transcribed the manuscript sold during the revolution and preserved at the Hermitage of Saint Petersburg, Xavier Verdèré, author of the preface to the Nagel edition of 1955, and André Masson, conservator of the municipal library of Bordeaux, Allen thinks that it truly concerns a work of Montesquieu.

 

            While the natural laws effectively represent the essential principle of the Ethics of Montesquieu, they are succinctly summarized in two brief pages, one of which contains, moreover, the refutation of the ideas of Hobbes in the second chapter of the first book of The Spirit of the Laws.

 

            On the other hand, one finds them largely developed in the fifteen or so pages of the “Essay,” under the following principal chapters:

 

-         the principle of the natural laws ought to guide our conduct;

-         duties imposed by the natural laws;

-         the three manners for finding the natural laws.

 

“The Essay Concerning the Natural Laws” seems then indeed the logical sequel or the complement to that second chapter entitled, “About the Laws of Nature.”

 

      Allen brings, moreover, a supplementary argument taken from the study of English literature.  Thomas Nugent, who was the first to translate The Spirit of the Laws into the English language, borrows the same arguments, developed by means of identical phrases in the two works.  He equally discovers in the “Essay” certain passages from The Persian Letters.

 

      Finally, Allen and Peterson insist upon the essential role devolving to the natural laws in the elaboration of the American democracy.  They maintain that the will to take as a model the natural laws, which contained within themselves, according to Peterson, the principles of a revolution against the privileges of the monarchy and the tyranny of absolutism, has preceded and even determined the choice of a political system that would have as its end only to permit their application.

 

      John Adams, who was, with Jefferson, Madison and Franklin, one of the authors of the American constitutionalism in1787 and the second president of the United States, wrote these lines that one could believe were taken from the Pensées of Montesquieu: “There must exist a passion for the public good superior to every private passion.  I am working to establish a new constitution, but it is not necessary to revere anything other than the religion, morality, and liberty” which count among the most important of the natural laws.

 

      Likewise, Washington, in his “First Inaugural Address” insisted upon the necessity of associating morality with liberty.

 

      For the first Americans, who had left their native lands because their political or religious opinions were not respected, the most important design was to proclaim the concept of freedom of opinion, of the press, and of religion, in the new lands where they had landed.

 

      It was only secondarily that they sought to protect this liberty through a constitution guaranteeing the rights of everyone.

 

      Thus Allen maintains a thesis less paradoxical that it appears on first sight, according to which the contribution of Montesquieu to the American nation consisted more in causing it to take as its model the example of the natural laws than in inspiring a political system, suggested by Locke, based upon the separation of powers, which the founding fathers already knew, for it had been in usage in England before Montesquieu brought to it a rigorous codification in chapter six of Book Eleven of The Spirit of the Laws.

 

      How could we not wish that the work of the professors Allen and Peterson, who have the merit of bringing some original ideas to bear upon the primordial importance of ethics and the natural laws in the work Montesquieu, would be the beginning of fecund relations with the Montesquieu Academy, which is given the task of encouraging studies about Montesquieu in France and in the world, and of perpetuating thus the remembrance of a great philosopher?

 

P.S.  Mr. Valette and Mr. Cavignac, director and conservator of the Departmental Archives of Acquitaine have obligingly written to the library of Saint Petersburg-Leningrad, which since 1789 possessed the original manuscript of the “Essay Concerning the Natural Laws,” in order to obtain photocopies of several pages, which could permit the comparison of the handwriting with that of other manuscripts of Montesquieu.  Thus, the proof could be established that Montesquieu is indeed the author of this treatise.

 

The Ethics of Montesquieu

A Summary Sketch

by

W. B. Allen and R. M. Peterson

 

            Examining the question of the laws of nature within Montesquieu requires that one review the familiar arguments concerning upon what Montesquieu himself owes to the writers on natural law, the list of whom is sufficiently long: Spinoza, Hobbes, Descartes, Locke, “the atheists,” the “apriori-ests,” or indeed Newton.[1]  Putting aside these subtle inquiries, it seems to us possible to make a Newtonian Montesquieu through a means both shorter and more certain.  There exists between a supposed minor essay by Montesquieu, “Essay Concerning the Natural Laws and the Distinction between Justice and Injustice,” and the ideas of Newton, such as they appeared in the essay, “Concerning Gravity and the Balance of Fluids,” such a close relationship that the two deserve to be treated as if resulting from a single hand.  This is to say that defining the central idea of Newton is, in effect, equivalent to defining the basis of the reasonings of Montesquieu.  But there, we run up against a problem: the essay by Montesquieu might not be his at all, at least if one clings to the judgement of the modern authors who are most listened to.[2]  Certainly, one finds within Montesquieu the same lesson in Book One of The Spirit of the Laws, where Montesquieu affirms that man is like all other natural bodies, “following the relations of mass and velocity.”  Nevertheless, the affirmations of this book are less precise than those of the “Essay Concerning the Natural Laws,” and what is more, we do not encounter any reason to cling to the authority of the authors, since there exists otherwise the means to establish the paternity of Montesquieu for this essay.  Thus, we offer here, as a start, a summary sketch of the Newtonian principle from which Montesquieu has derived a republicanism completely modern although natural.  Following that, we define the general principle governing the origins and the end of societies, and finally, we explain how one arrives at attributing with certainty the “Essay” and its ideas to Montesquieu.

 

            Newton rejected Descartes’ idea of one simple, mechanical motion, where self-movement were an illusion and the philosophical motion nothing more than a transfer or exchange of bodies, one for one.  Moreover, he rejected the idea that space and extension are the same thing, which the res extensa assumes.  For Newton, the search for the truth of things (thus, of everything) and the search for the nature of things constitute but one, and it does not entail the Cartesian reductionism that separates the nature of things from the truth of things.  If a watch’s metal turning movement pertains, in fact, only to atoms, it is impossible to speak of an action of the totality.  Newton acknowledged that extension is much closer to being than the hyle of Aristotle.  This results from the fact that extension appears independently of the form it displays.  It is rather the contrary that occurs: where Aristotle deduced the prime material, which one does not think of apart from the form, Newton deduced the form of extension.  He argued from the fact that that which is primary for man, being, produces space and being-extended in space, and from that one deduces the form.  But this further requires that being really present itself under the forms or the entities of whatever sort might be.  In order to perceive the attributes of things (thus, of being), this assumes a body, leaving aside the question of knowing whether the form is relative or absolute, created or eternal.  That which indicates the reality of being (“body” is too restrictive) instead of its attributes, are the proper attitudes or actions, “to the extent to which they are thinking in their mind and motions in the body.”  That is to say that bodies, beyond the fact that they are subject to being carried, must also take on certain aspects such as their forms admit.

 

            It is the manner of taking on these aspects and, consequently, of the self-moving of human bodies, that Montesquieu discusses.  Man, he says, follows “the relationships of mass and velocity,” like all natural bodies, but the order of nature is such that this relationship is expressed differently among different beings.  Only man must move himself beyond the impulses that his matter receives quite as much as dust, having as his spring that equivocal faculty, reason.  He cannot avoid being moved by circumstances and climate, but he must further provide for his “obedience” to the commands of nature or matter, as far as he is able.  By comparison, beasts, which also possess the power of self-motion, nevertheless have everything furnished by their own constitution.  One does not understand whether, among them, the senses are ruled by reason, or as in a machine, it is only a lever that transfers an impulse received from an external cause (cf. Book Three, chapter ten).  One observes, at least, that they follow with more constancy than man the imperatives of nature.

 

            The mode of the motion proper to man is based on the primacy of gratitude for the good and the rejection of the bad that one suffers.  Treating friends well and harming enemies is, according to Book One, the method used by intelligent beings in order to conform to the obligation to be as well governed as the physical world.  The burden of distinguishing friends from enemies devolves upon the reason of intelligent beings—a reason subject to error.  It is thus, without doubt, that they can “forget themselves,” or as Montesquieu said it in the “Preface,” that they become subject to prejudices, which causes one not only “to forget certain things, but which causes one to forget oneself.”  This prejudice is nothing other than the specific ignorance, which prevails in society, under the form of positive law, when men awaken to the differences among them and come to claim superior advantages (Book One, chapter three).

 

            The various constitutions or regimes among men are only thus and such results of one or another specific ignorance which, after judgment, prevails by force.  The point to hold onto, however, is that each specific ignorance represents an effort that is justified by the necessity to obey the laws of nature.  In principle, to be sure, there exists a perfect constitution, or a total conformity of humanity to the laws of motion, but the end and interest of whatever constitution is defined at the origin in error.

 

            It is precisely this idea of the errors proper to men, that Montesquieu elaborates no where other than in the “Essay” and that we need in order to complete our ideas of his doctrine concerning the natural laws, which interests us for the sake of clarifying his role as the writer of the “Essay.”  Once accomplished, we will be able to reopen the study of the natural laws in Montesquieu, integrating into it the proof of the “Essay.”  We would very much have wished, finally, to examine the manuscript, which currently seems to be found in the Museum of the Hermitage in Leningrad.  The occasion has not yet been given to us to do so, but we believe that we well possess another proof, sufficiently strong to convince us to proceed further without awaiting the results of this last research.

 

            Let us closely examine the phrasing of the “Essay,” which we will later discover in the translation by Nugent (never forgetting that there are, within the “Essay,” several other phrases that are found also in The Spirit of the Laws, as Mr. Védère has demonstrated).[3]

 

“. . . errant dans les bois, et tremblant au seul bruit d'une feuille. . .”

 

            This phrase is translated in English as follows:

 

“. . . wandering in the woods, and trembling at the simple noise of leaf . . .”

 

            In Book One, chapter two of The Spirit of the Laws, Montesquieu had expressed a very similar idea, but in a different form

 

“. . . l'on a trouvé dans les forêts des hommes sauvages, tout les fait fuir . . .”

 

which one translates:

 

“. . . folk have found wild men in forests; everything makes them flee . . .”

 

but Nugent translated it:

 

“. . . as appears from instances of savages found in forests, trembling at the motion of a leaf, and flying from every shadow.”

 

            Nugent has done two things.  First, he translated the idea of Montesquieu well, if not literally.  Thus,

 

“. . . as appears from instances of savages found in forests, ( ), and flying from every shadow . . .”

 

            Secondly, however, he introduced an entire phrase (“trembling at the motion of a leaf”) which is found nowhere in The Spirit of the Laws and which serves only to adorn instead of developing the idea.

 

            The interpolated phrase translates so closely that of the “Essay” that it forms a preliminary proof that the “Essay” had influenced Nugent.  In fact, it suggests, on the part of Nugent, a familiarity with Montesquieu sufficiently intimate as to incline us toward the idea that Nugent had a copy from Montesquieu himself.  For this reason, Nugent would have been impelled to introduce this change without feeling a sentiment of infidelity toward his source.[4]

 

            Armed with this preliminary proof, we think ourselves within right not to conclude definitively that Montesquieu wrote the “Essay,” but rather to undertake its analysis.  For the mere possibility that Montesquieu could have written it poses anew the question of the compatibility of the “Essay” with his known ideas, especially those of Book One of The Spirit of the Laws.

 

            The “Essay” touches upon the essential moral problem of its epoch: the source of right.  It is a problem that we scarcely know how to express in our day.  Most of the time, we attempt to reduce it to an historical problem (for example, the Conflict between King and Commons) in order to avoid, from the start, the explanation itself.  Nevertheless, we must attempt to say what it is in order to expose the doctrine of the “Essay.”  There are two formulas in it, and although they seem quite different, they seek to say the same thing.  We make use of these two in order to clarify the problem of the source of the right.  First, Montesquieu does not place any confidence in the idea of a social contract.  He sees a risk in basing all of human society on nothing more substantial than the fantasies and caprices of men.  Every contract must refer to its author in order to understand the meaning that flows from it; it is the author who best knows the objective at which he aimed.  The diversity of opinion concerning the good of man supports different opinions concerning the objectives of a specific contract—a diversity that cedes nothing to philosophical and post facto speculation.   

 

            Secondly, in seeking a solid basis for society, an idea of the common good that cedes nothing to the dichotomies between reason and revelation, on the one hand, and natural law and positive law, on the other, Montesquieu was required to seek a basis that could not be gnawed away by moral doubt, or vice.  Any principle that would relate the authority of morality to the will of any man or several men, would not conform to this model.  Modern political philosophy, in effect, with its social contract, arrives at nothing more than the democratization and depreciation of the ancient norm.  Montesquieu, by contrast, sought to dispense with this dichotomy by means of a doctrine of republicanism, issuing from the doctrine concerning the natural laws such as he sets forth in the “Preface” and Book One of The Spirit of the Laws.

 

            The link between the “Preface,” Book One, and the “Essay” has its roots in the fact that Montesquieu discusses the qualitative differences among the motions of animate and inanimate matters.  Every being, in theory, moves itself in conformity to natural law.  But the self-motion of animate beings has the capability of turning itself against natural law, a faculty that is only clearly realized when the self-motion of animate beings reaches its highest expression in man.   Thus, the science of human motion must be defined not around the motions of matter, ordained by nature, but around those of the soul through which man is moved and which he must rule in order to conform to the natural laws of motion.  Such a view could indeed lead to a simple reductionism, in which one would believe that the entire purpose of the political organization is to make man as mechanical as possible—a stimulus-response machine.  What saved Montesquieu from such a sad fate was his conception of the nature of the motion of the soul.  This conception resides in the idea of recognizing good and evil with their consequences, gratitude and equivalent rejection.  This idea, which is scarcely present in The Spirit of the Laws, is the specific subject of the “Essay Concerning Natural Laws,” and must be at the center of any ethics, no matter what.

 

            At the heart of the “Essay,” one comes upon a discussion “of the ordinary manner for discovering” laws.  It is clear in The Spirit of the Laws, however, that what was important to Montesquieu was the ordinary human manner and not the ordinary philosophical manner.  For him, all human motion constitutes an effort for the sake of discovering the natural laws that govern human motion.  As this happens, even given the diversity of human institutions, we can observe one preeminent method, which is scarcely astonishing given the supposition of an order in nature.  The diversity that we observe does not come from a diversity of natures, but from the relativity of error in even a single task.

            The “Essay” is divided into a provisional precis of the problem, “State of the Question,” and then the heart of the essay reflects on several approaches to the problem.  The precis makes clear that moral truths are no less certain than the truths of nature in general, since they are rooted in the nature of man.  The appearance of a regulated order in nature equally entails a regulated order, that is to say the natural laws that govern man. Yet, man has the obligation to discover the precise laws that govern him, otherwise, he returns to acting according to his fantasy, and thus, in disorder.  “Men are determined through the effect of their choices which make them worthy of praise or of blame.”  It is the source of the distinctions of virtue and vice, justice and injustice, good and evil.  The rule throughout is composed of the advantages and pleasure that the Creator has ordained for man in the order of creation.  Virtue will be the disposition or intention of doing what the laws permit; whereas vice will be the habitude of doing what they prohibit.

 

            These clear principles constitute a statement of the problem, and not a comprehensive guide precisely because, while God may be defined as a superior being interested in the good of man by means of the principles of natural religion, the laws through which he attracts men toward their good are not evident in themselves.  As a consequence, the means of seeking the natural laws, otherwise called the means for judging how men must live, constitute for Montesquieu the principal work of humanity.  It is necessary to reflect on them because the proof of their truth, different from the axiom that the whole is more than its parts, resides in the consequences of action in accord with this principle rather than in its elements themselves.

 

            Montesquieu identifies approaches to the question of how man should ought to live as “the ordinary manner,” “the true manner,” “the second manner,” and a “third manner of discovering our duties.”  By substituting “duties” for “natural laws” in the final version, Montesquieu indicates that the task is based on the question of ethical obligation.  There is more.  We see that there are four approaches enumerated.  Thus, there is considerable oddness in his specific system of enumerating them.  In appearance, the “second manner” would appear as a third while the “third” would appear as a fourth.

 

            The apparent confusion disappears when we examine the contents of each approach and we find that the “ordinary” and “true” manners are in reality but two versions of the first or original manner.  The ordinary manner is presented as if the “maxims” of morality had the same force over our minds as the axioms of geometry.  Unfortunately, however, errors of reasoning prevent the unambiguous application of principles such as that according to which one ought to recompense according to what is owed.  Montesquieu proposes to us to prove to a cannibal on this basis that it is evident that he should not eat men.  The true foundation of this approach, he says, is not a proof inherent in the maxims, but more so the proof of the goodness of God, from which men come to see, first the maxims’ interest in their well-being, and secondarily, their own interest in following them.  Thus, we return to our cannibal with a call to his own interest in order to persuade him to conform to the principles of humanity.  This is how it is necessary to act, Montesquieu maintains.

 

            Next, Montesquieu takes up to the true manner, which he calls a much more elaborate manner, an exact application of the first.  The first was purely inductive; the true method is deductive.  It supposes an end: the pursuit of happiness; it submits the means to this end: that one might regard his own interest, the will of God and the good of his neighbor.  Thus understood, the principles do not concern an individual, but humanity in general.  This proposition Montesquieu advances as proved, one of the two propositions requiring a proof in order to establish “the true manner” for learning how men ought to live.  The second proposition means that the general principles thus deduced must be converted into laws’ social obligations, in order to have their proper force.  Thus, it is the power of vengeance that completes the argument.  The failure to obey God's laws deserves punishment and ill treatment, which operate to support the identification of personal interest with the interest of human kind.

 

            We observe in the development of the "ordinary" and "true" manners a relationship quite similar to that which one imagined as perfecting religion through the arrival of Christianity, the true religion.  The absence of guilt in pagan religion leaves power to God only to the extent that he can recompense piety.  As Montesquieu said in specifying the problem, not only would gratitude be necessary but also good in return in order to impose morality on man.  By basing the ruling power of God on the fear of evil, we would fashion a comprehensive system for averting the evils that torment men who do not voluntarily follow the maxims: war gives way to peace; violence and cruelty to gentleness and moderation.

 

            In proportion as the true approach but perfects the original pagan confidence in inductions of the evident power of God in nature, the two constitute but one single and the same path.  This is still more true when one adds to the general force of the fear of evil a Machiavellian subordination to the supposed end.  As a single approach to the question, how should men live?  this differs greatly from the second and third manners, which are based not on the goodness of God, but on some specific conceptions of human nature.  Montesquieu calls the second manner an argument with a “new strength.”  Its strength is above all secular: man is a social animal.  That is to say that man lives, already and always, under the positive law.  The first advantage that we observe in this understanding is that it will separate “mine from yours.”  The question of the relationships between men and that which belongs to them is, then, at the center.  Further, the nature of society is to function according to laws that restrain the violence of men, since society would not exist at all otherwise.  Thus appears a change in the goal: man must practice civil obligations in order to assure for himself the society of men.  Vices harm society and, as a consequence, are forbidden.  In the end, this leads to establishing all the virtues as well as to receive the laws from the hands of God.  Thus, God approves these laws.  The argument greatly resembles the turn that ancient philosophy took in the ancient city when it elevated the path of reason as authority and demanded that the gods submit to it.

 

            Montesquieu seems content with the “second manner,” but this does not prevent him from turning his attention to "a third manner," which receives his consideration in the briefest and most ambiguous fashion.  It merits his highest praise, to the extent that he presents it as going directly to the end with the fewest complications – entirely naturally.  The third manner differs from the approaches based on Revelation and reason in that it is entirely mechanical.  Montesquieu calls it “the religion of instinct.”  Briefly, it is the account of the morality of man in the case where the original statement of the problem does not hold up, or where even among men, nature acts as an universal mechanism – the case in which the motion of matter alone binds us all “together through a marvelous sympathy.”  But Montesquieu does not deduce any specific application from this general statement of the “wisdom” through which God supplements our defective reasoning by giving us instincts that lead us “all of a sudden to our duty.”  To the contrary, he indicates that this approach is only valuable under conditions in which men have not developed the habitudes that have “spoiled the temperament” and in which they have not been subjected to the perverse influences of a false education.  Once perverted, from the beginning men can only adopt the two methods above: those of Revelation (pagan or Christian) or reason.

 

            One sees that such a sudden end of Montesquieu’s essay contributes greatly to reinforce the idea that men require an ethics to the extent that their temperaments have been spoiled or that a false education has made them impotent to follow their instinct. Indeed, one observes here the theoretical anticipation of Rousseau’s  “Discourse on the Origin of the Inequality Among Men.”  Nevertheless, what is more important is the manifestation of Montesquieu’s realism and prudence; man being spoiled, the victim of a false education, he thus requires an imperative ethics in order to live according to the natural laws.  The question that Montesquieu neglects here is “how has man been spoiled?”  What is the source of his false education?  But we have already observed in speaking of the “Preface” and Book One of The Spirit of the Laws that Montesquieu considers man as forgetful of himself, that is to say, conditioned.  It is clear that his false education clings greatly to these particular ignorances that had presided at the formation of the initial societies and that have created not merely the constitutions but insufficient versions of the requirements of natural laws.

 

Commentary by Professor PETERSON

 

Montesquieu and the revolution of the natural law

 

            With regard to natural law, Montesquieu has been ill interpreted, in great measure, for the scholars of each epoch have poorly understood ancient political philosophy, at least on the subject of the political philosophy of Montesquieu.  But the erroneous presentation with regard to ancient thought is not the only fault in the interpretations of the writings of Montesquieu: the idea that Montesquieu himself did not adopt a traditional doctrine of natural law is well known.  The two erroneous interpretations are bound together.  If one comprehends classical political philosophy well enough, one would see in the subject of natural law an intimate relationship between the thought of Montesquieu and that of the classicists.

 

            I thus maintain the thesis that Montesquieu espoused the traditional philosophy of natural law, but only by amending it fundamentally.  He did this by relating the soul of classicism, properly understood, to the doctrine of the 17th and 18th centuries.  In order to arrive at an exact understanding of ancient thought, it is necessary to read the classics with reference to Leo Strauss’ writings, which disclose the teaching of these distant epochs.  It is precisely in this way that one can reach the ancient model. 

 

            First, it is necessary to grasp the fundamental principle of the good, which is divided into two parts, the first posing the observation that each man inexorably acts for some good whatever it might be, or that the life of man is but an infinite series of actions following no particular good, “for all men do everything in the light of what appears to them as a good.”  The first part continues in the second, which maintains that these states are united.  Now, in the evolution of the human being, the good was manifested more and more in speech and in social relationships, reason and these relationships being similar parts of the same political characteristic.  These two traits pushed man toward political community.  Aristotle teaches that “reason is evident in that man is a civic being more so than any other, bees or gregarious animals.”  Both man and animal have a voice in order to express pain and pleasure, and this voice gives gregarious animals social capacity: but “speech, itself, is made in order to express the useful and the harmful and, as a consequence, justice and injustice; this same capacity is a more forceful social trait than is the voice of happiness and sadness.”  This strong social bond is civic action.  From the voice of Cicero, we learn the same point of view that man is born for society.

 

            Thus, the action of speech upon political association, or the city, leads man to the thought of natural law, that is to say, to the conception of law conforming to nature.  According to ancient thought, the order of natural law is eternal and immutable; there is in that a crucial principle for Montesquieu.  But, when one works to apply the immutable and universal principles of the natural order to a particular society, one finds that the science of this application is a practical science and that even its laws constitute natural law.  Thus, according to the classical philosophers, the practical rule by which folk make use of the law of nature is that this law is realized through concrete decisions.  The practical rule forms the second branch of Montesquieu's definition of the law—one branch given opening to the concrete laws, the other given opening to the immutable and universal natural law.  Even if the force of some particular circumstances grows into the immutable rule, the laws confirm and attest the validity of natural law.  The deviation always occurs in relation to the universal rule; that is to say, the law that deviates always returns to the rule, which does not deviate.

 

            The concrete resolutions of natural law channel the conduct of man's life in relation to the good life, or the complete life, that is to say in Latin, perfecta.  The natural laws infallibly concern the human actions that are directed toward the good city, because human perfection is not possible outside the city.  Thus, the goodness of man and the goodness of the city, or the polis, are coupled joined one to another.  But the political community that is directed toward perfection is impossible if the citizens are not able to enjoy mutual confidence.  How to achieve it?  At the minimum, there are two means: first, one must remove the “base classes” and, second, moderation and sobriety in the laws are necessary.  These two principles indicate a great Socratic change in ancient philosophy.  They also teach that wisdom is related to moderation, and that in two ways: in the first place, through wisdom we see that moderation is the means to human perfection, that is to say, the good man is the one who is temperate or moderate.

 

            But the probability of human perfection, we learn, is not strong.  The ancients wrote in full consciousness of the deficiency of human character for attaining political perfection.  It being given that no society will ever reach perfection, an alternative political wisdom is required, which is to say, prudence (prudencia).  The mass of men being the surest measure of political imperfection, or the fallibility of the good city, in contrast with the principle of the constraining life of aristocracy, and not wishing to leave the course of the state to chance, the ancients proposed to reconcile the obligations or imperatives of the aristocracy (that is to say, wisdom) and the liberty of the common citizens (which is to say, “the need for consent”).  In the name of this reconciliation, the authority of the laws replaces the authority of wisdom: for the mass of citizens being unable, in general, to place confidence in wisdom, are held only to laws that they can, in some way, adopt themselves.

 

            Now, the perfect city implies complete virtue: that is to say, the complete polis can not subsist without full and strict virtue, which is, inter alia, merit, temperance, courage, and civic talents.  Although the majority of men do not possess strong virtue, a weak virtue, or a sort of virtue, suffices for actual society.  The type of virtue that the citizens of a given state possess will determine the character of the community.  But a weak virtue is not the absence of virtue: even true virtue, or the perfect virtue, ought to serve as a guide for the weak.  It is the usefulness of this guide that divides the ancients such as Aristotle from Machiavelli, this last negating natural law.

 

            The classical model is clearly manifest in the political work of Montesquieu.  That is to say that Montesquieu is a partisan of ancient thought, which he adapted to the principles of his master work.  In the entirety of The Spirit of the Laws, the multi-faceted and varied drama of human society concerns the moral product of the natural law.  Society, as the essential and constitutive agent of nature law, is divided into the following active elements: climate, typography, religion, the past, laws, etc.  With the exception of the despotic society, which deforms the human character, these elements present themselves to the legislator as nature's shadows, or the settings within and through which nature often speaks in a tenuous fashion.  Montesquieu sought in these elements—all certain types of the past—not political morality or the good society as such, but he sought nature.  And political morality, or natural law, is hidden there.  Thus, nature is the source of political morality, and not history.  Montesquieu and his work are not historicist.

 

            But the sphere of history, at the same time that it is an arena for the work of human will, is also a material on which nature labors.  The work of Gustave Lanson gives testimony of this as an isolated voice in political literature.  There is in history a varied opposition between the fixity of natural law—or, within Lanson, social idealism—and the free passions of men, which wander ceaselessly around the expressions of natural law.

 

            It is nevertheless Montesquieu’s conception of virtue that indicates the variation of traditional literature on the subject of natural law.  Virtue is, for Montesquieu, an idea of first importance; it brings to his work a norm of the highest human good.  Virtue is a conception of ancient usage, the fundamentals of which Montesquieu amends.  It is necessary to understand that Montesquieu’s political philosophy is a practical admonition for the common interest, that is to say, the interest that is the mark of the common man, whether democratic or monarchical.  If the public interest is addressed to all the citizens of a political society, the common interest will aim for a lesser average which will not compromise the highest interest. The elevated or perfect interest is what distinguishes the virtuous republican citizen.  Republican virtue imitates the just middle, or moderation.  Free states are those that are moderate, but the history of republican states shows that moderation in the republic is very difficult to maintain, for in it there are many traits that founder upon the principle of moderation.  But there is a novelty in Montesquieu’s virtue that makes it universal from the start; it has its foundation in the passions, and it especially subsists in mediocrity.  In the state of nature, “everything breathes peace”: virtue is, in effect, within the reach of man.   It defines all men; it establishes human nature.  Nevertheless, the history that proceeds from this condition manifests the innate character of man.  Whereas men may become wicked, their characters always bear the imprint of nature.

 

            The role of the legislator is at this point quite decisive.  The 29th book is central to the understanding of the four initial books of the work on the laws.  The laconicism of Montesquieu in these particular books is instructive; he speaks about the main principles.  The relationship between the first books and the twenty-ninth is respectively that between the law of nature and the application of this law to concrete situations.  By means of prudence applied to particular circumstances, one can more or less realize the ends of nature.  And prudence obliges the properly instructed legislator to be conscious of the cardinal importance of moderation.  Finally, it is in monarchy that one best succeeds in attaining moderation and human nature to the extent possible—that Germanic monarchy that emerged in the forests of a receded age.



* Translation of the article “L’Ethique de Montesquieu: Principe de la fondation de la démocratie americaine,” which was awarded the Prix Montesquieu and published in the Actes of the Academie Montesquieu, vol. 2 (1986): 95-128.

[1]  Several authors have sought for the influence of Montesquieu in sources quite varied.  For M. Mornet (Daniel Mournet, Les origines intellectuals de la révolution française, Armand Colin, 5th edition, Paris, 1915) one can summarize it in a democratization of political philosophy.  He ends his account of the influence of Voltaire with a sense of incompleteness (incompletion?): “it was necessary to await The Spirit of the Laws for the taste for political discussion to become popular.”  It is the moral content of these most base, most popular discussions which is contested.  There, where I would make it Newtonian and modern on the basis of taste more than form, tradition would make it Cartesian-Spinozian, as well as modern in practice and in its foundation.  The account of Locke and M. d’Alembert is not inappropriate for making visible the spirit of those who see in Montesquieu the anti-metaphysician of morality: “he reduced metaphysics to what ought to be in essence the experimental physics of the soul” (in R. Derathé, “Raison and Modération selon Montesquieu, Revue international de philosophie vol. 8, 1959, p. 278; “Discourse préliminaire de l’Encyclopédie,” Ducros ches Delagrave, 1893, Paris, pp. 107-108).  I maintain that to see in Montesquieu an experimental physical renders meaningless his discovery of the political virtue as well as his system of politics (liberty) which, he said, should be compared to that of Plato and Aristotle.  This remains in the empty ethics to which political virtue would have responded as if Montesquieu had done nothing more than deny its existence.

 

Another problem: those who reduce Montesquieu’s work to the echo of certain writers more or less relativist and materialist follow too easily the interpretations which do not succeed in satisfying the meaning of the first books of The Spirit of the Laws.  Then there is M. Waddicor who states: “Book I, ii of The Spirit of the Laws is not a significant contribution to the history of ideas, whereas the story of the Troglodytes, which deals with the same problem precisely from a moral point of view is a contribution to literature.” (Mark H. Waddicor, Montesquieu and the Philosophy of Natural Law, Martinus-Nijhoff, The Hague, 1970).  This firm reliance on the story of the Troglodytes in the Persian Letters is consciously non-intellectual; it touches on the question of the virtue of what Tocqueville well named the perspective of simple morality, where the demands of justice exhaust moral duties.  In the end, men become weary of such duties, because they do not have the least relation with the idea of self-perfection.  The Spirit of the Laws, to the contrary, offers us a theoretical account of morality, which is comprehensive in its form if not in its content.  M. Waddicor thinks, nevertheless, that the mechanism (spring?) of instinct and the animal analogy of Montesquieu reveal a preference to be simply “scientific” where it should be “moral.” He himself thinks that the scientism of Montesquieu remains on the surface, trying hard only to dispute with Hobbes his own terrain.  To Waddicor, Montesquieu is a priorist (or perhaps an historicist); nevertheless, it happens also that Montesquieu although anti-Hobbist is Hobbist (p. 64-65, 80), non-Cartesian but Cartesian (p. 186-188), non-empiricist but empiricist (also Newtonian) (p. 27), and a student of natural law, although not following the natural law (p. 105-106, `51-152, 160).

[2] Among these is found first of all: Shackleton, who declared in his biography of Montesquieu that the “Essay” is probably the work of a disciple of modest talent.  See also in the “Essay concerning the natural laws;” is it by Montesquieu?  Mélange offertes par Jean Brèthe de la Gressaye, Bordeaux, Bière, 1967, p. 763-775.

[3] Védère Xavier, “Un essai inédit de Montesquieu: l’Essai touchant les lois naturelles et la distinction du juste et de l’injuste” Lettre Française, n. 555, 10-19 February 1955.  See also “l’Introduction” and “notes” on the essay published in Oeuvres, vol. III, editions Nagel 1955.

[4] In the Oeuvres, vol. III, see “Correspondance,” § 565, where, addressing Nugent, Montesquieu indicates that he had at least one prior letter although no more is known.

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