A Commentary and Review of Montesquieu's "Spirit of Laws"
My object in undertaking this work, was to examine and reflect on each of the great objects which had been discussed by Montesquieu; to form my own opinions, to commit them to writing, and in short, to accomplish a clear and settled judgment upon them. It was not very long before I perceived, that a collection of these opinions would form a complete treatise on politics or the social science, which would be of some value, if the principles were all just and well digested. After having scrutinized them with all the care that I was capable of, and reconsidered them well, I resolved to arrange the whole in another manner, so as to form a didactic work, in which the various subjects should be disposed in their natural order, consistent with their mutual dependence on each other, and without any regard to the order pursued by Montesquieu; which in my opinion is not in every respect the best: but I soon perceived, that if he had been mistaken in the choice of his order of discussion, I might be much more likely to deceive myself in attempting a new one, notwithstanding the vast accumulation of light, during the fifty prodigious years which have intervened between the period when he gave his labors to his contemporaries, and this at which I now present the result of my studies to mine. It was plain too, that in proportion as the order which I should have preferred differed from that of Montesquieu, the more difficult it would have been for me to discuss his opinions and establish my own; our paths must cross each other continually; I should have been forced into a multitude of repetitions, in order to render to him that justice which properly belongs to him; and I should then find myself reduced to the unpleasant necessity of appearing in opposition to him, without my motives being clearly perceived. Under such circumstances, it is questionable whether my ideas would ever have had the advantage of a sufficient examination: these considerations determined me to prefer the form I have adopted of a commentary and review of Montesquieu's Spirit of Laws.
Some future writer, if my effort be fortunate, may profit by the discussion, in giving a more perfect treatise on the true principles of laws: it is by such a course, I think all the sciences ought to proceed; each work commencing with the soundest opinions already received, and progressively receiving the new lights shed upon them by experience and investigation. This would be truly following the precept of Condillac.... proceeding rigorously from the known to the unknown. I have no other ambition, nor does my situation admit of more, than to contribute my effort to the progress of social science, the most important of all to the happiness of man, and that which must necessarily be the last to reach perfection, because it is the product and the result of all the other sciences.
Of Laws in General
Positive laws ought to be consequent of the laws of nature: this is the spirit of laws.
Montesquieu's Spirit of Laws.
Laws are not, as Montesquieu has asserted, "necessary relations originating in the nature of things." A law is not a relation, nor is a relation a law: the definition is not clear nor satisfactory. The word law has its special and appropriate sense: this sense is always to be found in the original meaning of words, and to which recourse must be had in order to their being rightly understood. Here law means a rule of action, prescribed by an authority invested with competent power and a right so to do: this last condition is essential, and when it is not possessed, the rule is no longer a law, but an arbitrary command, an act of violence and usurpation.
This idea of law comprehends that of a penalty consequent of its infraction, of a tribunal which determines the penalty, and a physical force to put it into execution: without these attributes laws are inefficient and illusory.
Such is the primitive sense of the word law; it was not, nor could it be formed, until after society had commenced: after which, and when the reciprocal action of sensible beings upon each other was perceived, when the phenomena of nature and of reason were discovered, and when it came to be found out, that they operated in an uniform manner in similar circumstances, it was said that they followed or obeyed certain laws. These were metaphorically denominated the laws of nature, being only an expression significant of the manner in which the phenomena constantly act. Thus with reference to the descent of heavy bodies, we say that it is the effect of gravitation, one of the laws of nature, that a heavy body abandoned to itself, falls by an accelerated motion proportionate to the series of odd numbers, so that the spaces passed through are as the squares of the times of its movement.
In other words, we mean to say that this phenomenon takes effect, as if an irresistible power had so ordained it, under the penalty of inevitable annihilation to the things subjected to this law of nature. We likewise say, it is the law of nature, that an animated being must be either in a state of enjoying or suffering; thereby implying that one or the other sensation takes place in the individual, through the medium of his perceptions, upon which he forms a judgment; which is only the consciousness of the individual to the feeling of pleasure or pain; that in consequence of this judgment, a will and a desire are produced to obtain or to avoid the operation of those perceptions, and to be happy or unhappy as the will or desire are gratified, or the contrary; by which we also imply, that an animated being is so constituted in the order of its nature, that if it were not susceptible of such perceptions and their consequent effects, it would then not be what we call an animated being.
Here we behold what is meant by the laws of nature. There are then laws of nature, which we cannot change, which we cannot even infringe with impunity; for we are not the authors of our own being, nor of any thing that surrounds us. Thus if we leave a heavy body without support we are subject to be crushed by its fall. So if we do not make provision for the accomplishment of our wishes, or, what will amount to the same, if we cherish desires that are unattainable, we become unhappy; this is beyond doubt, the supreme power, the infallible tribunal, the force irresistible, the inevitable punition, that follows, in which every consequence arises as if it had been so predetermined.
Now society makes what we call positive laws, that is laws which are artificial and conventional, by means of an authority purposely constituted, and with tribunals and an executive power to inforce them. These laws should be conformable to the laws of nature, originating in the same source, consequent of the natural laws, and no wise repugnant thereto; without which consonance, it is certain that nature will overcome them, that their object will not be accomplished, and that society must be unhappy. Whence originate the good or bad qualities of our positive laws, their justice or injustice? The just law is that which produces good, the unjust that which produces evil.
Justice and injustice therefore had an existence before any positive law; although it is only to laws of our own creation we can apply the epithets of just or unjust; since the laws of nature being simply necessary in the nature of things, it belongs not to us to question them any more than to act contrary to them. Unquestionably justice and injustice existed before any of our laws, and had it not been so we should not have any, because we create nothing. It does not appertain to us to constitute things conformable or contrary to our nature. We can ascertain and explain what is right or wrong, only according to our right or wrong comprehension of it; when we declare that to be just which is not so, we do not thereby render it just; this is beyond our power; we only declare an error, and occasion a certain quantity of evil, by maintaining that error with the power of which we have the disposal: but the law, the eternal truth, which is opposed thereto, remains unchanged and the same.
But it must be understood, that what is here said by no means implies, that it is at all times just to resist an unjust law, or always reasonable to oppose with violence what is unreasonable. This must depend upon a previous consideration, whether the violent resistance would not cause more evil than passive compliance: this however is but a secondary question, always dependent on circumstances, the nature of which will be discussed in the sequel.... we are yet a great way in the rear of that subject.
It is sufficient that the laws of nature exist anterior and superior to human laws; that fundamental justice is that only which is conformable to the laws of nature; and that radical injustice is that which is contrary to the laws of nature; and consequently that our posterior and consequent laws should be in unison with those more ancient and inevitable laws. This is the true spirit, or genuine sense, in which all positive laws ought to be established. But this foundation of the laws is not very easily explained or understood: the space between the first principles and the ultimate result is immense. The progressive series of consequences flowing out of the first principles are the proper subject of a treatise on the spirit of laws, which should be perspicuously pointed out, and its maxims modified to the particular circumstances and organization of society. We shall now proceed to examine these different principles.
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