A Commentary and Review of Montesquieu's "Spirit of Laws"

Book XXIX

Of the Manner in which Laws Should Be Composed.

This title, alike vague, requires some explanation to be well understood, as well as several others on which we have already made the same remark. The author, in this book proposes to prove that the laws should be clear and precise, worded with dignity and simplicity; not couched in the style and manner of dissertation; and particularly when motives are assigned for their enactment, that they should not support themselves by ridiculous reasons; laws too frequently contain clauses that are calculated to produce effects directly contrary to the intentions of the legislator; that they should he in harmony with each other; that several laws often mutually correct and support each other, and that to appreciate their effects correctly, they should be judged collectively, and not each one particularly and separately; that the legislator should not lose sight of the nature of the object they enact on one side, nor decide by motives contrary thereto on the other. In this much the book is comprised; the subject is already treated of in the twenty-seventh, and in other respects it approaches the sixth and eleventh books.

The author also shews that to form a proper estimate of a law, the circumstances in which it was enacted are to be taken into view; this has been already said and proved elsewhere. He also recommends that the laws should always be enacted in a general manner, and not given as prescriptions for particular facts. In a word he recommends it to legislators to divest themselves of their prejudices. No one will be inclined to differ from him on all these points. Indeed we might not be well satisfied with the divers examples nor with some of the reasons which he employs to prove things to be evident; some of them may deserve to be subjected to criticism: but as no information of any importance would result therefrom, I shall say nothing. It is not sufficient to be in the right when not opposed to great men, but when we undertake to contradict them it is always necessary not to be in the wrong.

I am in possession of a criticism on this book of the spirit of laws, written by the greatest philosopher in modern times, Condorcet;*32 it has never been published, and probably never was intended for publication. I shall venture to insert it here, and we shall see with what strength Montesquieu is refuted, and with what a superiority of views he retouches his work; it may be also perceived, that if my capacity be inferior, the severity of my investigation is at least equal.