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-Momesquieu
T he Highes{ Virtue
"I have written this work only to provt! it : the spirit of moderation should
be that of the legislator," writes Montesquicu at the beginning of Book
XXIX of The Spir;t of the Laws ( 1748) ,1 The faCt that this claim is made
towa rd the end of the work is surprising. Why did Montesquieu wait so
long to argue that moderation is rhe key vinue of all legislators? Might this
he the secret "chain" that links IOgcrher all rhe major themes of his difficuh
masterpiece?
To he sure, as the defining characteristic of (ree governments, moderation
is a seminal theme in Montesquieu's political works. All of his views on law,
o r d~ r, and Ii~rty coalesc~ around the concept of political moderation,l Th~
centra lity of the latt~r to M on r~sq uieu 's thought has been underscored by
many of his inc~ rpr~ ters, but it is nOl clear what exactly he mea nt by this
surprisingly elusive concept. In his in itial discussion of the nature and prin
ciples of moderate governmencs, he was surprisingly "coy" and prudent in
,,(firming the prioriry of moderation.) Moreover. while the issue of modera
rion undergi rds his critique o f despotism in the Persian Ltucrs, it is only in
The Spirit of the Laws (henceforth abbreviated SL) that Monresquieu's cri
tique of despotic governments is developed into a fu U-lledged normative
agenda in praise of political moderation and institutional complexiry,4 The
epigraph of the latter-Pro/em si'IC marre creatum-inspired by Ovid's
MctamorphO$cs , reRects Montesquicu's hold ambit ion of writing an origi
nal and cha llenging work. Its thirty-one books comprised of six hundred
five chapte::rs de::scrine, somerimcs in pa instaking detail, the institutio nal and
consti tutional architecture:: of moderat~ political r~gime$ . Montesquieu
drew a seminal relationship between moderation, limited power, che:: separa
tion of powers, and the rule of law, and he made the conc~ pt of politica l
moderation the keystone of his liberal political philosophy.
Published anonymously in Geneva in October 1748, Montesquieu's mas
terpiece enjoyed instant success. No less than fift een editions, some in anon ~
ymous versions, had appeared by the end of 1749 in (our coumrie::s. J Mon ~
tesqui~u's SL was described as "the code o f reason and liberty,'" "the
t rium ph of human ity, the mam:rpiece of gen ius, the Bible o f all politicians." 7
Fully awar~ of the importance:: of style and taste::, Montesquieu paid special
attention to the lite::rary aspect of his co mposition, whose complex structure::
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choke of the circumstances in which they did good and evil things."16 Mon
tesquieu :l mibut~d th~ fis~ of th ~ Roman republic to its successful combina
tion of wel l-designed institutions and civic virtue that allowed its Ci liuns to
live in peace and prosperity at home and wage s uccess ful wars abroad . In
the early ~tages of the republic, Montesqu ieu remarked , the Romans were at
th~ same time prud~nt and audilcious, sdf-i nt~ rested and committed to the
common good; the mOH salient features of the ea rly r~p ub l ic w~ rc its citi
zens' love o f liberty, haired of tyrann y, aud love of equa lit y. As 11 mixture
between mon archical, aris tOcratic, and popula r elements, the Roman gov
ernment evenrually achieved a sou nd "harm ony of power" (SL , Xl: 12, 172)
that t~mpered disput~ s benv~en the classes. As a result, the gov~ rnm~nt of
Rome came to be based upon a judicio us di stributi on of powe rs between
(he people, the s~ n a [e, and o ther magistracies which, alo ng with its sound
constitution, made it possible [ 0 correct or prevent abuses of power. 1? The
repu blic derived iu force from the civic virtue of its citizens and from the
existence of sound institutions_E.very soldier was at the sa me rime a citizen
who had a stake in working for maintaining the prosperity of the republ ic.
In chapter IX of the Considerations. Montesquieu attributed the decline
of the Roman republic to the corruption of mores and the disappearance of
the bala nce of power that tipped alternatively in fa vor of the people, the
patrici ans, or the consuls at the expense of rival classes. "The distracted city
no longer formed a complete who le," lI Monresquieu nored, and he poinred
to the growing propensity to abuse power on all si des in order to ex plain
the progressive corruption o( the Roman republic. This argument was ex
panded in an impo rtant letter of Montesq uieu to William Do mville (i n
cl uded in the Penset!s) . Referring to th e corrupti on o f the people as a whole,
Monresquieu pointed out that military tri butes and the pillage of Rome's
enemies had the long-term perverse effects of creating a large gap between
rich and poor that ended up destroying the unity of the Ci fY and corrupting
the civic spi rit o f its citizens.JO
A cursory look at what M on tesquieu wrote in chapters VIII, IX, and XI
of the Considerations reveals an interesting relationship between the mixed
constitution and the concept of the bal ance of powers. It is not a mere coin
cidence that he returned (Q C icero's o ld metaphor o f t he sympl)onia discors
and linked it to the metapho r of "scale" in order to describe a mode rate
form of government in which the monarch is in the center of the scale, and
the intermediate powers (the nobles and the people) in the balances. O n t his
view, what ktoeps a city together and constitutes its fo rce is "a union in har
mony" which does not exclude well-tempered socia l d issonances and politi
cal differences:
That which we ca ll union in a political body is a very equivoca l
thing: (he true unity is a union in harmony, which operates in such
a fa shion that all the different parts, however opposed they may
appear to us to be, concu r in the genera l good of society, as disso
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nances in music agree in the concord of the whole. Thus there can
be uniol1 in a state where one would expect o nly turbuleoce: that is
to say, a harmony that gives birth to happiness, the only true peace .
It is liJce the pans of the universe itself, eternall y linked by the ac
tion of some and the reaction o f others.l'
In th is wonderful passage reminiscent of Cicero, MOlltcsquieu compares
the harmony of moderate government to the cosmic order and rhe Ol ccortl of
celestial spheres. The underlying idea is that, JUSt as th e order of the uni"
verse derives from its diversity, so the order of moderate governments re
su lts from their internal balance and from a concord between their va rious
components as well as from their plura lity. The politica l balance in the stat(:
ma nifests the harmony of the world, and the intricate complex ity of moder
ate governmenr reflecrs harmonia mundi, being the outcome of the success
ful Utem pering" of competing political powers and social interestsY As
such, the essence of moderate government lies in its internal consonance
find "discordant accord."
The use of Cicero 's musical metaphor in the Considerations underscores
Montesquieu's intention to stress the internal complexity o f moderate gov
ernrnenrs,3. major theme to which he returned again and again in SL and in
the Pemees, where he contrasted it with the sim plicity and unifo rmity of
despotic regimes.)1 As Nannerl Keohane ha s argued, Montesquieu under
stood quite well that "creating a moderate government means delibera tely
lift ing a polity out of simpliciry, instituting a complexity of form where
there would otherwise be pure do mination .")./. While modcrate governments
are complex human artifices resulting from a sorhi.oaicaled alchemy of pas
sions, interests, and powers, despotic regimes spring \..Ip naturally fr om the
common human instinct to dominate and oppress. Despotism is no longer
seell as a corruption of monarchy, as it wa s portrayed in the older scheme of
classi fying governments; it appears now as a different type of po litical re
gime, one that demands special consideration.
O ne must resist the temptation of interpreting Montesquieu's aCCOunt of
moderate government as a mere endorsement o f mixed (Gothic) govern
ment, or as an accurate description of the English politica l system, which he
strongly admired. Almost none of Montesqu ie u '~ contemporaries believed
th.at he accurately depicted the reality of English poli tics as it was practiced
across the Channel during his time. Montesquicu was favorably disposed
toward moderate monarchy II i"anglaise. because in this regime laws reign
rather than the will of individuals (in the Aristotelian sense), and the au
thority of the sovereign is effectivdy limited by intermediary powers and
funda mental laws. Yet, his admiration for England should not be inter
preted a ,~ an unqualified approval of the country's limited mona rchy, nor
must it be seen as an endorsement of a strict version of the separation o f
pow~rs.lJ As M.J- C Vile remarked, it is no mere coincidence that, when
enumerating the form s of government at the beginning o f SL, Montesquieu
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they can always be easi ly misinterpreted ; "Nmhing makes the crime of high
treason more arbitra ry than when indiscreel speech becomes its material.
Discourse is so subject to interpretation, there is so much difference be
tween indiscretion and malice and so little in the expressions they use, that
the law can scarcely su bject speech to a capita l pen~tlcy" (S L, XII : 12, 198).
Once agai n, applying moderate penalties wo uld be preferable {O an accusa
lion of high treason)5 Moreover, accusing someone of ho lding or propagat
ing heretical views becomes dangero us in propo rtion to people's ignorance
and fears . That is why Montesquieu insisted that laws shou ld be charged
on ly wi th punishing external actions and sho uld never seek to guess and
di scipline inner tho ughts o r penalize secret intenrions. H A regime in which
people could be charged with crimes of high treason all the g.rounds of their
thoup,hts would be :I. harsh tyranny, since many ideas seen as challenging the
statu s quo cou ld be interpreted as treason. The word " treason," Montes
quieu noted, is ambiguous. and its vagueness represents a danger to mdi
vidual liberty. "Vagueness in the crime of high treason is enough to makt:
government degenerate into despotism," (SL , XI1: 7, 194 ) because it is al
ways possible to exaggerate or misrepresent the nature: of the alleged crime.
Momesquieu also addressed crimes aga inst religion, supporting the de
.::riminalizatio n of sacrilege and bl asphemy. III so doi ng, he combined bmh
pruden tial and non na tive reasons. MPenallaws," he wrote, "must be avoided
in the mamr of religion," (SL, XV: 12, 489) a~ they almost never have a
positivt: eHect and are often used as a mcans of stifling dissent and punish
ing rivals." The prom i ~s made by religion are 50 great that, no maner wha t
penalties tbe magistrates might impose, they will never be effective dett:r
rt:nu . Legislators must act as "political men and [lot theologians" (S L. XV:
9, 487) when judging these mattt:rs, STriking a balance between giving reli
gion its due and limiting ils jurisdiction over people's private lives. Montes
quieu prudently acknowledged thac "the institutions of religion are always
presumed to be the beST," while also warning against trying to enact by di
vine laws "that which shQuld be enactt:d by human laws" (SL, XVI: 2, 495) .
.. Human laws," he a rgued, "enact ilboUf the good: religion, about the beSt.
The good can have a nother object \xciluse there ace several goods, but the
best is one alone and can, th e r cfor~, never change" (SL , XVI: 2, 495).
MonteScluieu's views on penal laws were insepara ble from his belief that
liberty is secu re onl y in Ihose regimes in which il is duly protected by the
fo rmalilies of justice. In such gov~rnments, the forms and rules of justice
protect tbe dignity and liberty of ordinary ci tizens, for justice is admini!>
fered according to fixed, impersona l, and certa in ~tandards. "Tribunals of
the judici;uy," Montesquieu wrote, must always be "coolheaded llnd, in a
way, neutra l in a ll matters of business" (SL. VI: 6, 80). Impa((ial procedures
along with unchanging rules and clear and known laws consti tute the es
litnce of moderate government: "Law is everywhere wise; it is known every
where. and the lowest of the magistra tes can foll ow it,"1I The administra
tioo of justil.:e requires scrupulous inquiries and ca refull y weighed decisions
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~ccordin g to the spirit o f (he law, while also raking into account the exis
tence of " many rules, restrictions, and extensions, th~ t multiply particular
cases and seem to make an a rt o f reason ing itself:' $t in free regimes, one
i1lways find s a multiplicity of such regula tions and conve ntiom; reflecting
the numerous disti nctions in the natu re of men's goods, rank!., and socia l
co nditio ns. As a rule, the "formal ities lof justiceJ increase in pro portion to
the im portance given to (he honor, fo rt une, life, al1d libe rry of the citizens"
(SL, VI , 2,75).
In moderate regimes, th e manner of for ming ju dgments is deeply imbued
with a spirit of moderation, whi..:h requires th ~t sc rupulo us inquiries be
conducted according to that sp irit . Neith er the prince no r his council exer
cises judicial power; the laws are supposed to be " the prince's eyes; he sees
with them what he co uld not see withou t them" (S L, VI: 5, 80), and he may
neVet igno re Ot ~bu se thetn .60 The judgmenu rendered by the prince would
otherwise be an inexhaustible source of injustice and ab use, much like the
judgments o f a despot whose will meets with no effective obstacle and
whose power is virtually unlim ited. Not only is the monarch prevenred
from exercising judicial power in moderate regimes, but judges 3re pre
vented from making the rules, which they are expected to follow to the lu
rer while also making sure that "no la w ca n be interpreted to the detriment
of a citizen when it is a question of his goods. his honor, o r his life" (St . VI:
3,76). The existence o f a genuine spirit o f judicia l compromise and of ex
tensive judicial fo rm ali ries temper the exercise o f powe r and modify the
ways in which autho riry is d ispersed and exe rci~d . promoting respect for
the life, liberty, and prope rry of ord inary citizen s. T hus, "the head o f even
the lowest citizen is esteemed" (SL, VI: 2, 75),' and his honor and good s
ca n be removed fr om him only a fter ca rdu l examina tion conduc ted accord
ing to clearly fo rmul ated procedures and laws.
By vi rtue o f their compl ex structure, in modera te regimes power is medi
ated by an intricate hie rarchical struCture tha t co unterba lances the author
ity o f magistrates and the prince.'2 Unlike des potic regimes, moderate gov
ernments can, as much as th ey wan t and witho ut peril, " relax" their springs
fro m ti me to time. Soc ial life under these regimes is not based on fea r and
intim idation. 6l T hey mainta in themselves primarily by laws and mores that
effectively limit power and foster a genera l benefi l'ial spirit of moderation,
accom moda tion, and comp romise.
fisca l Moderation
Given the impo rtance o f collecting a nd using the revenues of the state, it is
not surprising tha t fisci l moderation'" occupies a cenrra l place in Mont(s
q uit u's agenda. He turns to this subject in book XIII, in a discuss ion that
complements his previous analysis of constitutional and penal moderation.
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entirely independent f(om the other (wo powcrs, Montcsquieu responded
in the affirmative, stressing the importance of the mit of law in securing
political moderation .
What, then, is the relationship between these conceptS and the famous
"separation" of powers? The works of Miclld Tropt:r ami M .J.e. Vile point
to two different ways of thinking about constitutionalism , separation, and
the ba lance: of powels .n According to Troper, it is important to distinguish
between doctrines proposing a hierarchy among powers and those seeking
to create equilibrium between them, without assigning supe riority to a ny
one. The doctrine of the balance of powers has historically been grounded
in the recognition of the supremacy of th e legislative power,'~ a fact amply
connrmed by the U.S. Constitution, among others. It dots not imply a SHief
separation between the legislati ve: and the eXecu live powers and refers in
stead to the balance between the twO main powers sha rin g in the exercise of
the legislative function . The different authorities sharing in the legislative
function may include the fWO chambers of parliament, the ministers as
agents of the executive power. and the constitutional mo narch or other head
o f the sta te. H ence, Troper concluded, we must distinguish between the sep
ararion of powers and the balance of powers, as the laner can be achieved
either through separation or specialization."
It was the doctrine of the ba lanced constitution rather than the theory of
the Strict sepa ra tio n of powers that became the basis of Monlesquieu's ac
count of the English constitution in SL. One will 6nd in his writings neither
a defense of a functional separation of powers nor an unambiguous case for
the separation of the personnel of the legislative and executive powers. n
His key point can be sta ted as follows: li berty and moderation cannOI ex ist
in a state in wh ic h power is chronica ll y abused and which lacks proper
checks and balances. In order t{l build moderate government and prevent
abuses of power, onc nlust create viab le institutional mechanisms that can
effectively block attempts at usurping powe r: "So that one ca nnot abuse
power, power must check power by the arrangement of things" (SL, XI: 4,
155).
H ence, what is usually referred to as the "separation" of powers in MOrl
Tesquieu's work can be summarized by the followin g two principles: ( 1) the
legislative power may never be combined with the: executi ve power in one
single person or body of magistrates; (2) the power of judging must be sepa
rate from both the legislative and executive power so as to be ahle to tell the
truth to those in power and dfectively protect the rights of individua ls.
He nce, in moderate regimes no single person or body o f magislfates can si
mu ltaneously eXl"rcise both the executive and th e judiciary power. "All
would be lost," Montesquieu acknowledged, "if the same man or the same:
body of principal men, either nobles, or of the people, exercised these three
powers: that of making the laws, that of execu ling public resolutions, and
chat of judging the crimes or the dispotes of individuals" (SL, XI: 6, 1.)7).77
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necessary motion o f things, they will be forced to move in concert" (SL, XI:
6).12 Wha t is rema rkable in this passage is that Montesquieu refers to inde
pen dent powers tha t are "chained" to each othe r, stressing that they are in
terdependent and always bound to act " in concert" fo r the sake of the com
mon good.
We :'Ire now in a better position to understand how Montesquieu was
able to reformula te in modern term~ the old Ciceronia n theory of concordia
ordinllm (discussed earlier) by giving it a modern co n .~ t j t u t iona l twi st. Al
though the two main powers in the state (t he legis lative and the executive)
are in theory independem of each other, in rea li ry they are o ften o bliged to
compro mise and temper their politit:n l ambitions. The depu ties ' initia tives
cannot become laws without the ap prova l of the monarch, a royal Veto
forcing in each case parliament to return to the drawing board. At the sa me
time, the mona rch must ca refully weigh the options fo r the fo rmation of his
cabinet, being expted to propose to the two Chambers only those mi nis
ters who would govern according to (and not against) the wishes o f the
majo rity in parliament. Thus, de iure independence of powen is not the
same thing as de facto independence. Many interpreta tions of Momesquieu
make the error of confounding the twO by 3ssuming that the first necessarily
implies in practice a strict sepa ration of powers and their funetions.u
It might seem odd, then, that Mon tesquieu's a lleged "separation" o f pow
ers becomes in the end a balance of mutua lly contro lling powers tha t keep
each other in equipoise and tire bound to 3Ct in concert for promoting the
common good.- This interpretation reflects Montesquieu's endorsement of
a hybri d constitutiona l model combining the "separ3tion" of powers with
the decentralized fram ework of the older Gothic constitution, based o n a
complex vertical system o f overlapping institutions and jurisdictions. As Lee
Wa rd perceptivd y noted, "Montesq uieu presents the federal princi ples em
bedded in the decentralized Gothic Constitution as a vita l supplement to the
separati on o f powers, and a correcti ve to the problem o f conce ntrated
po wer in modern Engl and and France,', IJ Thi s semina l point becomes evi
dent in the last (often neglected) books o f SL. where Montesqu icu offers a
deta iled examination o f French feudal laws that is essenti al to an under
stan ding of his political moderation. He examined the system of the justice
of lords according to which justice was a rig ht inhe rent in the fiefs," insist
Ing on the "infinity of charters prohibiting the judges or officers of the king
from entering the territory f a exercise any act of justice whatever o r to re
q uire any judicia l emolument whatever" (SL, XXX: 20,652). This is im por
tant beca use it confirms that. under feuda l government, the authority of the
monarch was in fact a limited power, especially after the reign of Cha r
lemagne. The king, Montesquieu wrote, "had almost no more direct author
iry: a power tha t had to pass through $0 many other powers and th rough
such great powers was chechd or lost before reaching its goal. Such grea t
vassa ls no lo nger obeyed, and they even used their under-vassals in o rder
not to obey any longer" (SL, XXX I: 32, 7 16).
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ing, there is no a priorj contradiction between slressing, on the one hand, the
importance of non-political factors and, on the other hand, affirming the
primacy of the political sphere.'" Wise legislato rs always sk to work with
rather than againsl-the general spirit and the mores of a country, and the
greatness of legislative genius consists "in knowing in which cases there must
be uniformity and in which differences" (SL, XXIX: t 8, 617).
This might hdp explain why Monlesquieu, who rejected the idea of uni
(arm legislation, refused to admit that political questions could ever be re
duced to a few geotral and simple propositions or universally applicable
recommendations, a position that would be ~harcd by Condorcet a few de
cades latcr. 9S It is revealing that ill the last chapter of book XXIX of SL,
Montesquieu counted neither Locke nor More nor Harrington among man
kind's greatest legislators. Instead, he invoked the names of Aristotle aod
Machiavelli, the twO great masters of prudence, the contextua l virtue par
excellence and one that Montesquieu appreciated as well. More impor
tantl y, it was Montesquieu's endorsement of the fundamental indeterminacy
of Ihe political good that gave his political theory a moderate to ne, prevent
ing it from becoming deterministic or axiomatic." As we have seen, Mon
lesquieu argued that there is more than one good form of government, add
ing that wise legislators must try to moderate the shortcomings of ~a c h rype,
a ta sk Ihat is possible in all governments save despotism. This undertaking
requires prudence and discernment and imposes upon legislators the duty to
promote toleration and pluralism.
It is ill this light that one must examine Montesquieu's ideas all climate
and geography. Far from being deterministic, Montesquieu admitted in un
ambiguous terms that a muhiplicilY of factors gove rn human behavior:
"Many things govern men: climate, religion, Il\ws, the maxims of the gov
ernment, examples of past things, mores, and manners; a general spirit is
formed as a result" (SL, XIX: 4, 3 10). Wonh nOling here is Montesquieu's
empha sis o n the pluralily of faCl O(S that inflll~nce and constrain the choices
of legislators. At the sa me time, he argued that while it would be unwise to
ignore the power of mores, customs, and manners, thes~ factors never fully
determine the range of the possible in polirics, Accordingly, wise legislators
alwa ys take into consideration the needs of different climates, which in turn
foster different ways of living and demand corresponding kinds of Jaws. 97
While Montesquieu recognized that "there are climates in which the physi
cal aspeCt has such strength that morality can do practica lly nothing" (SL,
XVl: 8,269), he Slopped short of endorsing resignation or fatalism," In
stead, he a rgued that when the physical character of a climate goes against
natural laws governing interactio n bctwttn human beings, legislators can
and mU${ make civil Jaws that counteract the dfects of the c1imat~." Bad
legisl:uors favor and encouraBc Ihe vices caused by the climate of a country,
whi le good ones try to enaC( measures Ihat mitigate a nd limit their nefari
ous effects, such as laziness, indifferenCe!. and aparhy.loo
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weights, in commerce the same measures, in the state the same laws
and the same religion in every part of it. Bur is this always and
without exception appropriate? ... And does nor the greamess of
genius consist rather in knowiog in which cases there must be uni
formity and in which differences?IOf
This passage is jntere~ting because it raises the question of Montesquieu's
complex and ambiguous attitude toward na[urallaw.lO~ In SL, XXVI; 1, he
acknowledged that natural law is only one of the many categories of laws
by which men are governed. It takes its place alongside divine law, ecclesias
tical law, the law of nations, the general political law, and the civil law of
each sociery. While natural law may sometimes provide effective standards
for judging political and civil matters, it cannot be applied uniformly, with
out giving due considuation to particular circumstances and contexts. In
this respect, the cardinal virtues of all legisla tors are prudence and modera
tion, virtues that defenders of uniformity tend to overlook or underesti
mate. The centrality of prudence to (good) legislation looms large in the first
cbapter of book XXVl, in which Montesquieu admits that wise legislators
must acknowledge the existence of differenl orders of laws and remarked
that "the sublimity of human reason consists in knowing well to which of
chese orders principally relate the things on which one should enact and in
not putting confusion into the principles that should govern men" (SL,
XXVl; 1,494).10 the next chapter MOnlcsquieu defined the:art of legisla
tion as using the right principles to suit va rious circumstances. WiR legisla
tors, he claimed, know that laws have different effects varying with timt:
and space, and that good legislation ili the art of the particular and the pos
sible rather than of the best. 110
It is in this context thac one must interpret and understand MOnlesquieu's
advice in SL, XXIX; 16 about the many things that must be observed in the
composition and reform of the laws. In order to avoid or limit arbitrariness,
the style of the laws is often as important as their content, and laws must be
"concise n and "simple." "It is essential for the words of the laws to awaken
the same ideas in all men" (S L, XXIX; 16,613) and vague formulations
must be avoided at all COSts. "The laws," Montesquieu ins isted. "should not
be subtle; they arc made for people of middling understanding; they are not
an art of logic but the simple reasoning of a father of the family" (SL, XXIX;
16 ,614) . Reasons for changi ng a law must be dearly formulated and com
municated; it is prdeuble not to include limitations, modifications in a law,
for such complicated details would require, in turn, new details and addi
tional justification. Moreover, legislators must pay due consideration to the
difference between a law and the means of implementing it. The most reli
able principle they can use in this regard is moderation, which teaches legis
lators "what part of power, grr.:at or small, should be used in va rious cir
cums tance~ " (SL, XlI; 25, 209), or how and when co apply various orders of
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laws to particular circumstanc~ s and obi ~ cts ( th~ th~m~ s of books XXVI
and XXIX of SL), With r~ga r d to th ~ d iff~r~nc~s b~tween ci vil and rdigiou s
laws, Mont~squi~u argu~d that "o n~ should not ~na ct by divin~ laws that
which should be ~nact~d by human laws, or r~gulat~ hy human laws that
which should be r~gular~d by di v in~ laws" (SL , XXVI: 2,495), Civi l laws
must seek to promot~ human ius ti c~ rath ~ r than divine justice, which lies
outside of their rea lm; "religious laws arc more sublime; civil laws arc more
extensive" (SL, XXVI: 9,502). Hence, "human la ws coact abo ut the good;
religion, about the best" (SL, XXVI: 2, 495 ). Montesquicu warned that leg
islators should not decide by the precepts of rdigion when matt~rs of natu
ral law are in question, nor should th~y try to apply the laws of religion
(whose main goal is to promote the moral goodness of mdividuals) to those
Things that ought to be gov~rn~d by th ~ principl~s of ci vil la w. and whose
guiding principl~ is the general good of soci~ty.
Similar rdations obtain b etw~e n civil and political laws. The first depend
on the political laws of a country and cannot be sep:.I. rateu fr orrl the contt:xt
from which they have emerged . Montesquieu affirmed that thil1gs thaI de
p~nd 011 prillcipl~s of civil law should nOt be ru led by principle's of political
law, as for example in questions of privar~ prop~rty rights. where "It is a
falla cy to say that the good o f the individual sho uld yield to the public
good" (SL, XXIX: 15,510). Some things, such as whether the domai n of the
state is a l i~nable, should ~ decided by politicallawlO and not by civillawlO.
Furthermor~, Montesquj~u deoi~d that a particular society ca n m alc:~ laws
for anoth~r society, since th~re is no such thing as a universall y good law,
independent of various political and ~xtra-political conditions. III When leg
islators suk to transfer civil laws from on~ natio n to ano th~ r. they must
ca refu lly examine and compar~ the simila rit i~s and differ~nces between
their systems of legislation, [h~ir inst itutions , and their mores. On this view,
p rud~n ce is r~qu ired even when dealing with laws wh ich, at first sight, might
a ppear to ~ universally JUSt and fair, for their application ma y have unin
tended consequenc~s that limit their genera l effectivene ss.
Montesquieu believed that one o f the greatelOt mistakes of legislators is 10
try to imprudently change the general spi rit of their nation, and he insisted
that they would be well advjlOcd to refrain from anempting to correct ever y
thing by m~ans of laws. Inst~ad, h ~ opined , legislators must always follow
"t he spi rit of a natio n when doing so is not contrary to th ~ pri nc iples o f the
government" (SL, XIX: 5, 310). H~ nc~, h~ concluded. legislators lIIu st nor
confuse laws with mo res and mann~rs and should avoid introducing new
laws aiming at changing the general spirit of a natio n. Most often, it is laws
that fo llow m o r~s rather than vic~ v~ rsa, and it wou ld be an unwise id~a to
try to chang~ by laws what should be changed only by manners: " When one
wants to change the mores and mann ~rs, on~ must not chang~ th~m by th ~
I<l ws. as this would appear to b~ too tyrannical; it would be beller to change
them by o th~( mor~s and mh~r mann~rs.... It is a v~ry bad po licy to change
hy laws what sho uld be changed by mann~rs" (St, XIX: 14,3 IS). Wis~ I~g-
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them to take swift and timely decisions in emergency situations, while at the
same time special conditions were devised to prevent them from abusing
their power and authority. III These derogatory powers were to be granted
solely for a "brief and limittd time" and for a single task: to enable the state
to protect liberty. II.
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limited, usually to one yea r, and they could become ~rmanent on ly afte r
the people gave their explicit consent.1H
There is another important facet of Montesquieu 's argument abom mod
erating democracy that can be explained in light of his vic:ws on equality.
While Montesquieu was aware of the importance of this concept, he real
ized that it would be impossible to determ ine once and fo r all the desi rabl e
level of equality in democratic regimes. In SL, VIII: 3, he distinguished be
tween tempered (regulated) and untempered (unregulated) democracy, not
ing that in the former people are equal only as citizens, whi le in the latter
equa lity indiscriminately spreads to all areas of socia l life. Thus, one is equal
nOt only as citizen, but also as magistrate, senator, judge, fath er, husband, or
master. In the {ooHtep::. of Aristotle, Monte::.quieu suggested that proper
equality is a mean between extreme form s of equality and inequality: "As
far as the sky is from the earth, so far is the tfue spiri t of equality from the
spirit of extreme equality. The former consistS neither in making everyone
com mand nor in making no one command, bur in obeying and com ma nd
ing one's equals. It seeks not to have no master but to have only one's equals
fo r masters" (S L, VIII: 3, 114). Moderating democracy amounts, then, to
find ing the right mix of equality and inequality that promOtes the true spirit
of citizenship and fosters proper social bonds. "The principle of democ
ra<:y," Mo ntesquieu affirmed, " is corrupted no t o nly when the spirit of
equality is lost but also when the spirit of extreme equality is taken up and
eac h one wants to be equal of those chosen to command " (SL, V111 : 1, 11 2).
Given that the tendency [Q leveling and uniformity in democratic regimes
inclines them toward despotism,'H Montesquieu argued tha t laws must be
devised with the goal of preventing extremes of both equality and inequal
ity: "Although in a democracy real equa lity is the sou l of the state, still this
equality is so difficult to establish that an extreme precision in this regard
wo uld not always be suitable. It suffices to estab lish a census that reduces
differences or fixes them at a certain point; after which, it is the task of par
ticular laws to equalize inequalities, so to speak, by the burdens they impose
on tbe rich and the relief they afford to the poor" (SL, V: 5, 46--47) . At the
same time, Montesquieu insisted that there will always be individuals who
will be distinguished by birth, wea lth, or honors and who will seek socia l
recognition for their "superiority," forming a "body that ha s the right to
check the enterprises of the people, as the people have the right [Q check
theirs" (S L, XI: 6, 160). Wise legislators should therefore tolerate the exis
tence of inequali ties and try to moderate them, as long as they are d rawn, as
it were, "from the namre of democracy and from the vety principle of equal
il)' " (S L, V, S, 47).
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channeling them into peaceful and benign activities that aim at materia l
gain and wealth rather than power and domination. III Commerce, Montes
quieu pointed out, is " a kind of lo m:ry" in which everyone loves (0 lake
pan in the hope of getting rich. Considerable wealth can be amassed or los[
wi thin a short span of time. and as a result social life comes to resemble a
Brownian movement sui generi$ in which people constantly rise and fall
along wit h the fortunes of the srock market. Public life is nOt immune to this
agitatio n, being inevita bly affected by rhe chro nic restlessness and dissipa
tion induced by commerce and its accompanying passions (restlessness, fri
volity, and vanity). Above all, Montesquieu argued, commerce helps cure
destructive prejudices, promotes gentle mores and moderation, and spreads
knowledge of the mores of all nali ons everywhere" (SL, XX: 1, 338). Where
commerce: is allowed to follow its course: unhindered, people cooperate with
each other more easily and acquaint themselves with new ways of life and
values. "The natural effect of commerce," Montesquieu famously argued,
"is to lead to peace .... The spirit of commerce produces in men a certain
feeli ng for exact justice" (St, XX: 2,339) encouraging people to take into
consideration one another's inte rests and adjust their interests. Moreover,
the moderating spi rit of commerCe brings with it nOt o nly new socia l dis
tinctions, but also fosters "the spirit of frugal ity, economy, moderation,
work , wisdom, n anquility, order, and rule" (S L, V: 6, 48).
All of these ideas ca n be found in the portrait of England's moderate gov
ernment drawn by Montesquieu in SL, a.s well as in his Pensies and Notes
su r l'AngleteTre. 1ll Fo r all his appreciation of the unwritten English consti
(Utio n and his sometimes-elegiac (one, Montesqu ieu's account of England
was, to use Michael Sonenscher's phrase, ustrikingly Janus-faced."Il Mon
tesq uieu stopped short of affirm ing thac the Engl ish political system was the
Itbest" existing political regime and noted (not without concern) that "in
o rder to favor liberty, the English have removed all the intermediary powers
that formed their monarchy."1Jj In reality, as several commentato rs ha ve re
marked, Montesquieu inserted a critica l note in his descriptions of each of
the regimes he deemed to be good (including that of England). U6 While he
believed that the english constilUtioTl protected political and indivi dual
frct:d om better than any othtr existing regime, he was nonetheless ambiva
lent towa rd several aspects of English politics and the EngliSh way of life. In
his view, in order to understand the English politiCo'll system one must nor
limit oneself to examining its constitutional architecture, but must also
slUdy the ways in which liberty is connected to and affected by commerce
and the invisible: hand of the market . IJ 7
Montesquieu's depiction of English socia l life and mores in SL, XIX: 27
sheds additional light on his conception of moderate government and
should be rtad in con.junction with his famous anal ysis of the English un
wrinen constitutio n in SL, X I: 6. It reveil ls his mixed feelings ilhout the ex
treme consequences of the sovereignty of individua l will, whicb leads each
deilen eo cons ider him a "monarch" and a monad at the same time . Man
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tesquieu perceptively grasped that the comme rcial way of life in England
made every individual value his independence according to his own tastes
and inclinations. English society, he noted, is a highly individualistic society
in which "all the passIOns are free ... hatred , envy, jealousy, and the ardor
for enriching and distinguishing oneself ... appear to their full extent " (SL,
XIX: 27,335). Voicing concern about the spi rit of "extreme liberty" in En
gland (SL, XI: 6, 166) that ensued from its commercial way of life, Momes
quieu questioned how secure politicallibeny was there. Although his refer
ence to the existence of a "delirium of liberry " might ~trike us as hyperbolic,
it cannot be d enied that MO!1tt!squiell was deeply con(.:crned about this as
pect of English society, especially in lighr o f hi s claim about the absence of
intermediary bodies in that country. In his Notes sllr I'A"gJeterr~, Montes
quieu noted (with a hint of sadness) that the English had not always been
worthy of their libeny, which [hey sometimes preferred to "sell" to their
kings. ua In a rather enigmatic passage from SL, Mo ntesq uieu affirmed that
people are not as free as they think even under moderate governments such
as England's, for liberty is constantly under the pressure o f the highly indi
vidualistic and competitive ethos of society. He praised the love of liberty
prevailing across the Channel, but also remarked that the F.nglish tended to
love their liberty "prodigiously," that is, immoderately and excessively. As a
recent commentator argu~d , " the prodigious love of liberty among the Eng
lish is in som~ measure alarming ( 0 Momesquieu, even potentially mon
strous, because it implies a possible violation of the order of nature, which
points to moderation rather than extr~mes .... Without resorting to 'politi
ca l moralism,' Montesquieu suggests that a constitution of liberty, in order
to endure over time, needs motives beyond fear and interest."1.l9
Montesquieu's reader should not be su rprised then by hi .~ warning thilt
the English have the potential to become one of the most enslaved peoples
on ea rth if they take liberty to extremes . The political sy~ t em of England,
Montesqui eu claimed, "will perish when legislative power is more corrupt
than executive power" (SL, Xl: 6, 166). His reserva ti ons were meant to
sound a ca utionary note about the dangers facing a regime that combines
the "separation" of powers with a spirit of unbridled self-interest and ex
treme individualism anc.lliberty.1t is no mere coincidence that Montesquieu
also criticiud the "frenzy of liberty" (SL, XI: 16, 176) that characterized
political life at a certain stage of the Roman republic, and he believed that
the spirit of extreme liberty was one of the mou important caus~s of the
decline of the Roman republic.
He lvetius' Warning
Helvetius is credited with ha ving once sa id that the beSt way TO recognize a
fool is to meet someone who claims to understand Montesquieu well. His
witty words remain as va lid toda y as in his time. Not surprising.iy, aCrer fin
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ishing SL, the reader can hardly avoid the imptcs.sioll that moderation re
mains an elusive concept in Montesquieu's writings, in which it is related to
a Iheory of prudence, juste mesure, and poli tical judgment. With ideas and
truths of a certain kind . Monresquieu oace said, "i t is not enough to make
chern appea r convincing: one must a lso make them feh ... ..to One such idea is
political moderation.
In praising the laner, Montesquieu put forwa rd a complex, normative
agenda [hat gained him many prominent admirers in Europe and America,
from Catherine the Great of Russia and Frederick the Great of Prussia to
James Madiso n and Alexander Hamilton in the New World. I ' The pre
scr iptive side of M ontesquieu's ideas comes to the fo re, for exam ple, in his
ana lysis of the relationship between moderation and pluralism when de
scribing the benefits of commerce. Montesquieu constantly moved from
what " is" 10 what "should be," using moderalion as an important rhetorical
weapon in his critique of despotic regimes. In so doing, he fo llowed a nu r
mative route in a remarkably prudent way, avoiding the sometimes-radical
tone of his English fo rerun ners, such as Hobbes and Locke.1-I2 Far from
being a relativist, Momesquieu believed in the existence of a few " fu nda
mental" principles, but he insisted that the latter, va luable as they may be,
cannot and should not be applied unifurmly and everywhere, without pay
ing due considera tion to the social and po litical condition o( each country.
It is revealing chac Montesquieu even refused to view the principles of mod
erate government-in particula r the se paration and the ba lance of pow
ers-as universally applicable. These principles, he insisted , must not be
treated as apodictic axioms even though they are important conditions of
liberry.'~l
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