Lay - Political Ontology PDF

Political Ontology and Institutional Design in Montesquieu and Rousseau
Author(s): David Lay Williams

Source: American Journal of Political Science, Vol. 54, No. 2 (April 2010), pp. 525-542
Published by: Midwest Political Science Association
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Political Ontology and Institutional Design
in Montesquieu and Rousseau
David Lay Williams University of Wisconsin-Stevens Point
Historians of political thought have been puzzled by Montesquieu s simultaneous appeals to the diversity of human practices
and eternal norms of justice. Isaiah Berlin famously referred to this as an impassable "contradiction' burdening his work.
Careful examination of Rousseau s appropriations from and developments on Montesquieu, however, reveal that these
observations are not merely reconcilable?they provide a fruitful way to approach legislation and constitution drafting.
This is accomplished by understanding his employment of the principle of transcendent constrained indeterminacy.
Intellectual historians readily admit the deep influ ture, and myriad other idiosyncratic variables in the sys
ence of Montesquieu on Rousseau's work. Indeed, tematic study of politics (e.g., Grimsley 1972, 33, 70-71;
one can count Rousseau among those to have ac Huilling 1976, 110; Masters 1968, 375; Simpson 2007,
knowledged this connection, celebrating him as the "illus 138). Montesquieu's attention to these elements of po
trious Montesquieu" (C, 417 [1:497]; E, 458 [IV: 856]; see litical life constitutes what is still regarded by many as
also SC, 100 [III: 414])} Maurice Cranston observes that his most remarkable achievement. For him, each society
it was a "shared admiration for Montesquieu" that "sealed demands its own set of laws to address its own peculiar
the friendship of Rousseau and Diderot" (1991,4). Schol circumstances. Rousseau similarly holds that the "general
ars have identified many important reasons that would aims of every good institution must be adapted in each
explain this enthusiasm. This has included Rousseau and country to the relations that arise as much from local
Montesquieu's shared enthusiasm for liberty (Cranston conditions as from the character of the inhabitants, and
1991, 5), the belief that the separation of powers was an it is on the basis of these relations that each people has
effective way to preserve that liberty (Melzer 1990,205-8), to be assigned a particular system of institutions which
a contempt for slavery (Viroli 1988,120), a social ontology is the best, not perhaps, in itself, but for the State for
that shared social space fuels vanity and competition for which it is intended" (SC, 79 [III: 392]). For both, laws
social esteem (Hendel 1934,1:65), a belief that despotism and institutions are inconceivable without careful atten
was a corrupted form of government (Viroli 1988,166), a tion to the practical circumstances of social and political
prioritization of the general will in politics (Pangle 1973, life.
57; Riley 1986, 200; Strauss [1953] 1965, 276-77), as well At the same time, however, there is another dimen
as a sense that social inequalities are fated to destroy that sion in Montesquieu and Rousseau?an apparent belief
general will (Hendel 1934,1: 86; Rosenblatt 1997, 57). in eternal moral truths. The literature points to this fea
But perhaps the most obvious and important respect ture of Montesquieu's thought (Berlin 1977, 155; Court
in which Montesquieu would influence Rousseau was in ney 2001; Mason 1975, 145-57; Riley 1986, 162, 170),
the consideration of culture, religion, climate, agricul and Montesquieu endorses this doctrine in the voice of
David Lay Williams is Associate Professor of Philosophy and Political Science, College of Letters and Sciences, University of
Wisconsin-Stevens Point, Stevens Point, WI 54481-3897 (dawillia@uwsp.edu).
Earlier versions of this essay were presented at the 2007 meeting of the American Political Science Association and to the Department of
Political Science at the University of Nebraska-Lincoln in 2008. The author would like to thank the audience of both talks as well as Ryan
Patrick Hanley, Ari Kohen, and the anonymous reviewers and editor of AJPS for their insightful comments on previous drafts.
Rousseau's works are abbreviated as C = Confessions; E = Emile; SC = Social Contract; GP = Government of Poland; FD = First Discourse;
PE = Discourse on Political Economy; R = Reveries of the Solitary Walker; LWM = Letters Written from the Mountain; F = Letter to
Franquieres; O = Observations by Jean-Jacques Rousseau of Geneva. Montesquieu's works are abbreviated as SL = Spirit of the Laws; DSL
= Defense of the Spirit of the Laws; PL = Persian Letters; P = Pensees. All bracketed references are the standard French Pleiade editions of
Rousseau's and Montesquieu's complete works, volume and page numbers.
American Journal of Political Science, Vol. 54, No. 2, April 2010, Pp. 525-542
?2010, Midwest Political Science Association ISSN 0092-5853
525
5^6 DAVID LAY WILLIAMS
Usbek: "justice is eternal and independent of human con all cultures and circumstances. It rejects the notion, for
ventions" (PL, 140).2 There is further evidence through example, that democracy or theocracy is universally just.
out the Spirit of the Laws in the ubiquitous and unqualified At the same time, however, it recognizes the existence
rejections of slavery and despotism. Rousseau makes sim of preexisting and fixed standards?only ones that are
ilar pronouncements that "What is good and conformable somewhat indeterminate. It embraces the transcendent
to order is so by the nature of things and independently validity of some principles, but no one particular set of in
of human conventions_No doubt there is a universal stitutions. A democratic, aristocratic, monarchic, or other
justice emanating from reason alone" (SC, 66 [III: 378]), regime type may all be just and good?but only under the
as well as his own frequent condemnations of despotism right circumstances. So constrained indeterminacy sets
and slavery. no prior conditions on laws and regime types other than
Isaiah Berlin is persuaded that Montesquieu's appeal the indeterminate?but transcendently valid?standards
to the relativity of social norms and practices, on the one themselves. This essay identifies the presence of such
hand, and eternal standard, on the other, leads to an unre norms in Montesquieu and Rousseau and how this partic
solved and impassable "contradiction" (1977,155-61; see ular political ontology dissolves the alleged contradiction
also Richter 1977, 32).3 He insists that Montesquieu can identified by Berlin. Further, it demonstrates a way in
not have it both ways?he cannot simultaneously main which to construct laws and regimes according to higher
tain the diversity of social norms and an eternal concep fixed principles without the assumption that one set of
tion of justice. This evaluation might similarly be applied laws or one regime is universally valid. That is to say,
to Rousseau, who appears likewise to be trapped between Montesquieu and Rousseau sketch an original approach
nature and convention (e.g., Derathe 1955, 370-71). For to contemporary politics and institutions that simultane
Berlin, Montesquieu's acknowledgement of social and po ously provides a firm normative foundation and sensitiv
litical diversity is flatly inconsistent with his fundamental ity to context. Below I sketch relevant elements of Mon
belief in fixed political truths. He must either accept the tesquieu and Rousseau to reveal how some have arrived at
nearly infinite diversity of human practices and abandon the conclusion that they were burdened by contradiction.
his faith in eternal moral truths or vice versa. Then I proceed to elaborate on their shared political on
This essay suggests that Berlin identifies a false tology as a means for transcending the supposed impasse.
dichotomy?one that not only persists in the literature on Finally, I conclude with an examination of this ontology
Montesquieu and Rousseau, but also colors approaches in the context of social science and institution building in
to institution design generally: the choice between a de the twenty-first century.
terminate transcendentalism and postmodern relativism.
That is, Berlin's all-or-nothing approach lends itself to
potentially unproductive thinking as applied to constitu
tional design in an age of nation building, where a rejec Montesquieu
tion of relativism can lead institutional designers into the
arms of an overly simplistic objective view, for example, The depth of Montesquieu's influence on modernity is
that particular democratic forms of government are uni largely unchallenged today?as has been the case virtu
versally just. I propose transcending this false dilemma ally from the day he published the Spirit of the Laws in
by appealing to the political ontology implicit in Mon 1748. In early America, Montesquieu assumed the author
tesquieu and Rousseau, which I call indeterminate tran ity of an oracle. He is cited in the Federalist more than
scendent constraint. This ontology recognizes no deter any other modern source and indeed more than classical
minate, fixed political institutions and laws applicable to figures such as Plato, Aristotle, Cicero, and Plutarch com
bined. He provides both Federalists and Anti-Federalists
2Were this view not confirmed by his other remarks in 51, it might with some of their core arguments. His influence was ar
be possible to dismiss this passage as being in a voice other than guably even greater in Europe. The Philosophes eagerly
Montesquieu's own. To be sure, not everything Usbek utters can be
consumed his works and largely embraced his appeals
read as Montesquieu's authentic beliefs. But the fact that the view
is repeated in the opening pages of the 51 suggests that this reading to liberty and science as articles of faith. Voltaire intu
is fair. Finally, as Judith Shklar observed, of all the characters in the itively adopted his sympathies for the English political
Persian Letters, Usbek was closest to Montesquieu himself?and
system. Helvetius echoed his depictions of cultural diver
indeed, his "friends and sons called him Uzbek, so the similarities
were no secret" (1986, 25). sity. Diderot was drawn to his belief in the natural socia
bility of human beings. And, of course, Rousseau would
3 This reading of Montesquieu as caught in a contradiction of social
observation and humanitarian natural law is described by Mark H. read him carefully?if not uncritically?throughout his
Waddicor as the "logician's" critique of Montesquieu (1970, 16). career.
ONTOLOGY IN MONTESQUIEU AND ROUSSEAU 5^7
Contextualization and the "New Science" civic virtue, monarchies by honor, and despotisms by
of Politics fear. Beginning in book 14, he turns his attention to cli
mate and its role in shaping the laws. Naturally, different
The discovery of the New World was an astonishing event states have different climates. His primary focus is on
in modern Europe. That people had established and ex the contrast between hot and cold climates. Each climate
isted in parallel, but previously undiscovered, societies zone generates a particular set of consequences on citi
was a source of constant fascination. To be sure, the new
zens that he explores in detail. In book 18, he addresses
civilizations were perceived in Europe as different and the nature of the soil, once again, establishing a simple di
uncivilized, but this did not make them less interesting. chotomy. Soils can either be fertile or barren. And again,
To the contrary, it only enhanced European curiosities. each type of soil generates myriad considerations in shap
Indeed, their diversity was precisely what most fascinated ing its people and laws. Chapter 19 explores how mores or
Westerners. This can be seen in Amerigo Vespucci's early temperaments might differ from one society to another.
account of Native Americans: "They live together without Peoples might be sociable, vain, arrogant, lazy, trustwor
king, without government, and each is his own master. thy, flexible, inflexible, civil, uncivil, tranquil, passionate,
They marry as many wives as they please; and son co fickle, etc. These temperaments or mores will vary, once
habits with mother, brother with sister, male cousin with
again, considerably across cultures. In chapter 23, he ex
female, and any man with the first woman he meets. They plores the diversity in population sizes. They might range
dissolve marriages as often as they please, and observe no from smallish communities, like the Swiss Cantons, to the
sort of law with respect to them. Beyond the fact that they vast civilizations of Rome or China. Finally, in book 24,
have no church, no religion and are not idolaters, what he describes the remarkable diversity of religions. Here
more can I say?" ([1502] 1966, 27). Such reports were he is mostly interested in the contrast between Christian
devoured by Europeans with a kind of eagerness to be and Muslim nations. All of these variables matter to Mon
shocked.
tesquieu. They become part of his science of politics.
These accounts were just as inspirational to philoso
phers as they were a source of public curiosity. Locke
employed them to argue against the long-held European The Variety of Natural Laws in Montesquieu
belief in innate ideas. Montesquieu was likewise stirred.
Most scholars acknowledge the presence of natural laws
Indeed, his earliest literary success, The Persian Letters, is
in Montesquieu. He proclaims in the opening of Spirit of
in some sense an extended tribute to cultural pluralism.
the Laws, "the world... must have invariable laws" (SL,
He describes Turkish and Muslim practices in detail?
1.1 [II: 232-33]). There is diversity of opinion, however,
such as polygamy and radical hierarchy?and then con about the nature of those laws. This confusion stems from
trasts them with European norms. At the same time, he
the different varieties of natural laws he employs. They
reveals that his near-Eastern protagonists find Western
include the natural laws of science, the social laws of nature,
European culture to be incomprehensible. The eating of
and the moral laws?with the last category subdivided
pork, the consumption of alcohol, the liberty of their
into laws of preservation and immaterial moral laws} He
women all conspire to perplex Usbek and Rica.
is clear in describing the natural laws of science, which
While depictions of cultural diversity are employed
govern "the motion of matter" (SL, 1.1 [II: 232]). And
for literary purposes in the Persian Letters, they play a
further, there can be no question as to Montesquieu's
more scientific role in the Spirit of the Laws. Montesquieu
intentions to reveal descriptive social laws akin to the laws
expends great energy in portraying the enormous differ
of natural science, i.e., the social laws of nature. One of
ences separating civilizations across multiple continents.
his greatest eighteenth-century students, James Madison,
In his own preface, he remarks that the starting point of
said of Montesquieu that he "was in his particular science
his treatise is the observation of "the infinite diversity of
laws and mores" (SL, xliii [II: 229]). Specifically, he stud
ies laws, mores, climate, religion, quality of soil, and even 4 Scholars have observed the presence of Montesquieu's classifica
the degree of commerce. Various societies differ radically tion in books 1 and 2 of the Laws. Namely, Montesquieu describes
a "natural law" in book 1 and "laws of nature" in book 2. Unfor
along lines that largely shocked his contemporaries.
tunately, this terminology is somewhat confusing. This is because
His first significant area of investigation is in the di Montesquieu's "natural law" includes the natural laws of science
versity of laws and regimes. Different societies tend to and the immaterial laws of nature. These laws share little in com
ward different political institutions. The three major va mon other than their claim to immutability. Montesquieu's "laws
of nature" are a subset of his moral law?the laws of preservation
rieties are republics, monarchies, and despotisms. Each discussed below. So his vocabulary suffers from imprecision that I
has its own principles. Republics are characterized by hope to remedy with these supplementary terms.
528 DAVID LAY WILLIAMS
what Bacon was in universal science: He lifted the veil be the law of preservation, since slaveholding societies?
from the venerable errors which enslaved opinion, and like the Rome that Montesquieu studied so carefully?
pointed the way to those luminous truths of which he had demonstrated endurance. Nevertheless, it is worth recall
but a glimpse himself ([1792] 1999, 510). Madison read ing that Montesquieu insists that slavery is "not good by
Montesquieu as a social scientist. Indeed, Montesquieu's its nature' (SI, 15.1 [II: 490], emphasis added). Indeed,
studies laid the foundations of modern social science, he says that the norms of slavery violate the "natural law"
as Durkheim (1960, 36-49) has argued. In this way, he [droit naturel] (SL, 15.2 [II: 492]). This implies a different
differs from the simple chroniclers of new cultures, such level of the moral laws of nature?the immaterial laws of
as Vespucci. He does not merely describe the empirical nature.
facts of cultures. He seeks to understand these facts as This mode of natural law in Montesquieu has gone
cohering, according to principles and capable of being largely unexamined in the literature in favor of emphasis
understood via theories. It is not enough to observe that on the law of preservation. Michael Zuckert, for exam
a culture tends toward despotism. He presses forward to ple, speaks of Montesquieu's preference of 'natural right'
derive social laws from the large collection of empirical over 'natural law,' where 'natural right' is equated with
facts. the laws of preservation. For Zuckert, "natural right pre
The next level of law, the moral laws, requires a largely scribes preservation" (Zuckert 2001,247). And to be sure,
overlooked distinction. There are for Montesquieu the such a law exists for Montesquieu. But as Montesquieu's
laws of preservation and the immaterial moral laws. These arguments against slavery and despotism imply, the law
laws are distinct insofar as they are explicitly normative.5 of preservation does not extend to all doctrines that he
The law of preservation6 possesses a minimal norma condemns. For this, he requires yet another law based on
tive content deriving from quasi-scientific principles. It more substantial ontological commitments.
assumes that, by nature, all people endeavor to survive.
Thomas Pangle summarizes this as "nothing more than
the rules of conduct which are the bare minimum nec Immaterial Moral Laws of Nature
essary to preserve the existence of almost any society or
league" (1972,28).7 The law of preservation provides leg
C. R Courtney advises readers of Montesquieu to study
him in intellectual context (2001, 41). This context nec
islators with a minimum standard by which all potential
essarily includes a number of thinkers committed to the
laws must be measured. Montesquieu provides an exam
existence of two kinds of substance?material and im
ple in his discussion of slavery. If a state is to have slaves, it
must nourish and clothe them, as well as tend to them in material. In other words, they were dualists. The most
sickness and old age (SL, 15.17 [II: 504]). That is, it must notable modern European dualist is Descartes, who sep
arates mind and body only to stitch them back together
look to their preservation?and consequently its own.
through the pineal gland. For him, material substance
But the moral content here is admittedly modest. From
is completely determined. This famously includes ani
the perspective of the law of preservation, slavery is tol
mals, which lack an immaterial component capable of
erable, so long as the slaveholding society sustains itself.
resisting physical impulses. Human beings, by contrast,
This passage concerning the treatment of slaves, how
possess both material and immaterial substance. Their
ever, is an aberration in his larger treatment of slavery.
bodies are material; their minds are immaterial. It is
Generally speaking and repeatedly, he identifies it as an
the immaterial substance of the mind that, according to
abomination subverting human dignity (e.g., SL, 15.1
Descartes, makes human beings capable of resisting im
[II: 490]). This rejection of slavery leads to an obvious
pulse and enables virtue or moral actions. Descartes was
question?on what grounds does he condemn this in
stitution?8 It cannot be the natural or social laws of na scarcely alone. There were movements inspired by Pla
tonic9 immaterial ideas afoot in all corners of Western
ture, since they are descriptive, not normative. It cannot
Europe, including Italy (Ficino), Prussia (Scherzer, Leib
niz), England (Whichcote, More, Cudworth), and France
5Michael Zuckert has argued that Montesquieu's vacillation be
(Descartes, Malebranche, and Lamy). These movements
tween descriptive and normative laws is one of the primary sources
of confusion for his interpreters (2001, 230).
6Michael Zuckert terms this "natural right" (2001, 247). 9The term Platonism can mean many things to many people. For
7This is what H. L. A. Hart would later call "the minimum content the purposes of this essay, I mean specifically to limit it to two fun
of the natural law" (1961, 188-89). damental doctrines: (1) a belief in immaterial substance, including
the soul, but more specifically ideas such as justice and (2) the
8 Similar questions can, of course, be generated concerning his treat notion that ideas like justice are eternal or transcendent?that is,
ment of despotism. unchanging and beyond convention.
ONTOLOGY IN MONTESQUIEU AND ROUSSEAU 5^9
had been given special incentive to refashion their argu Textual evidence confirms that he did more than read
ments to combat the perceived materialism of Spinoza from this tradition; he joined it. That is to say, he is a meta
and Hobbes. This was the battleground of eighteenth physical dualist. He makes this clear in the opening of the
century metaphysics, and Montesquieu was deeply aware Spirit of the Laws, where he posits, "Man, as a physical
of its nature, dimensions, and stakes.10 being, is governed by invariable laws like other bodies.
Connected to this debate was another: conventional As an intelligent being, he constantly violates the laws
ism versus Platonism. Because the materialists had argued god has established and changes those he himself estab
against immaterial substance, their political concepts had lishes" (SL, 1.1 [II: 234]).13 According to Montesquieu,
to be entirely derived from artifice. This is why Hobbes, human beings themselves partake in two categories of
for example, relies on contract. Human beings establish substance?material and immaterial. They are material
political norms by agreement. This was the birth of mod insofar as they are influenced and sometimes determined
ern normative positivism. The dualists rejected conven by natural laws of science. They are immaterial as they
tion as a sole source of political norms. Convention was actively resist those in favor of the moral law.
merely another word for "arbitrariness" and paved a po Perhaps nowhere is Montesquieu's commitment to
tential path for tyranny or despotism. It is the content of immaterial substance more evident than in his rejection
immaterial ideas, so they argued, that offers the greatest of "Spinozism." His early lost work, Traite des devoirs,
assurances against the worst governments. reportedly began with a rejection of Spinozistic deter
minism, followed by an extensive refutation of Spinoza
On Immaterial Substance Generally in Mon and Hobbes (Shackleton 1961, 71). In similar spirit, he
tesquieu. Montesquieu was raised, so to speak, on remarks in his Pensees that
a steady diet of modern French Platonists, such as
Descartes,11 Malebranche, and Lamy. At age 11, his father
... a great genius [Spinoza] promises that I will
sent him to the College de Juilly, where he would read die like an insect. He seeks to flatter me with the
Bernard Lamy, perhaps the most prominent student of
the Platonist Nicholas Malebranche. Shackleton records idea that I am merely a modification of matter.
He employs a geometrical order and some rea
that Montesquieu's library housed seven of Lamy's works
sons, which are said to be forceful and which I
(Shackleton 1961,7). His greatest affection, however, was
have found very obscure, in order to elevate my
probably reserved for Malebranche, whom he identified
soul to the dignity of my body, and en lieu of the
as one of the "four great poets" of Western literature
immense space that embraces my spirit, he gives
{Pensees, [I: 1546]).12
to my material body a space of four or five feet
in the universe. (P, [I: 1138])
10 Most important to Montesquieu was that strict materialism de
nied human agency and as such made morality impossible. See
Masterson 1981. Indeed, Montesquieu was deeply offended when early
11 Mercer outlines many of the common assumptions of the mod readers of the Spirit of the Laws mistook his exposition
ern European Platonists, including a belief in immaterial, "eternal of physical and social laws for Spinozistic materialism.
and immutable Ideas" (2001, 196) and an epistemic orientation Thus the very first task of his Defense de Vesprit des his
toward these Ideas unencumbered by the distraction of the senses
(2001, 244-46). Patrick Riley includes a transcendent conception is to defuse this misconception. He defiantly rejects that
of justice as being an essential component of Platonism to the early he (i.e., Montesquieu) is "a Spinozist," since he "in the
moderns (1996,23-25). Some may question Descartes' inclusion in first article of his book distinguished the material from
a list of modern Platonists, but there is strong evidence to support
this claim?including his metaphysical dualism, epistemic distrust
of the senses, a belief in the immortality of the soul, and gen
eral acceptance of immaterial substance. See Williams 2007a (32)
and Mercer (2002, 37-38). Zuckert has previously suggested this 13He likewise posits in his Greatness of the Romans and Their Decline
connection between Descartes and Montesquieu (2001, 233). two kinds of causes?moral and physical {Romans, 169 [II: 173]).
It is important to keep in mind that although Montesquieu at one
12See Shackleton (1961, 8). The others were Plato, Shaftsbury, and point refers to human beings as "machines" (SL, 14.2 [II: 477]),
Montaigne. Montesquieu's debts to Malebranche are extensively he is only referring to their physical nature. Descartes?famously
outlined in Riley (1986,138-76). To be sure, Riley correctly observes a dualist and an advocate of human free will?does the same in
that Montesquieu does not accept all of Malebranche's doctrines, his Treatise of Man. While he insists in his opening paragraph,
particularly that of vision in God. See also Mason (1975, 8-33). "I assume their [humans'] body to be but a statue, and earthen
Textual evidence of Malebranche's influence is most apparent in his machine [automata]" (Treatise of Man, 2), he elsewhere confidently
employment of the Malebranchian occasional cause in his Greatness asserts that this machine can be animated by immaterial soul (e.g.,
of the Romans and Their Decline (Shackleton 1961,167-68; Romans, Passions of the Soul, 42-46). Montesquieu is clearly following this
169 [II: 173]). dualist tradition begun with Plato and maintained in Descartes.
53? DAVID LAY WILLIAMS
the spiritual world" (DSL, [II: 1121]).14 In other words, gets this right about Montesquieu. This reading of Mon
Montesquieu points out that his first order of business tesquieu, however, is only a partial truth. This is because
in Spirit was utterly anti-Spinozist. Although this accu Berlin, as I argue in ?4, conflates two different political
sation of Spinozism was not uncommon, Montesquieu ontologies presupposing such truths?determinate and
was steadfast in his denial. Of course, skeptical readers to indeterminate.
day might doubt his explicit rejections of materialism as
mere esotericism.15 But his rejection of Spinoza extends Justice as Immaterial and Transcendent in Mon
to the main text of VEsprit, the very title of which evokes tesquieu. Recognizing Montesquieu's embrace of imma
immaterial substance. In VEsprit, he claims that although terial substance facilitates understanding his larger con
people of certain climates tend to be inactive, their leg ception of justice. This is most evident in the 83rd Persian
islators should work to activate their citizens?namely, Letter where Montesquieu distinguishes justice from ma
they can inspire citizens to act counter to nature through terial phenomena. Contrary to Hobbesian and Spinozist
their free will (SL, 14.5 [II: 479-80]). Durkheim (1960, conceptions, Usbek separates justice from self-interest.
44-49; see Waddicor 1970,18) confesses that such admis Self-interest and the passions are frequently at odds with
sions render Montesquieu a metaphysical dualist and an justice?they are not its source.17 Indeed, epistemic access
advocate of free will, even at the expense of a coherent to justice is only possible when those interests and pas
science. That is to say, for Durkheim, Montesquieu wants sions have been sufficiently silenced (PL, 140 [1:256]). He
to preserve the immaterial will even if it threatens the im presses forward to suggest that not even God is capable of
mutability of his social laws. Isaiah Berlin comments, "It altering the substantive content of justice. Following the
is to the eternal credit of Montesquieu that he commit Platonist Leibniz, "Assuming that he [God] perceives jus
ted this very crime" (1977, 150). This raises the thorny tice, it is necessary that he follow it" (PL, 140 [I: 256]).18
question of whether Montesquieu can reconcile his belief It is for these reasons, Usbek concludes, "justice is eter
in freedom with the physical and social laws of nature nal and independent of human conventions" (PL, 140 [I:
as they operate on human beings. Durkheim denies he 257]). The independence from convention is especially
can. Nevertheless, Montesquieu's resolution of this ten important, as it is the crucial ontological feature of justice
sion is relatively straightforward. He says that "laws of that distanced him from Hobbes and Spinoza. For them,
nature" apply to human beings, but that they are free to justice was by definition a matter of human convention.19
deviate from them. To be sure, Durkheim is right to ques This conception of justice finds its way into the first
tion whether these are then the "invariable laws" that he chapter of Spirit of the Laws:
claims them to be. It might be more instructive to read
these as "invariable tendencies," which can then be re
Particular intelligent beings can have laws that
sisted by free will.16 Indeed, Montesquieu's science may they have made, but they also have some that
be endangered by his metaphysical assumptions?but this they have not made. Before there were intelli
cost was scarcely as important to him as human agency.
gent beings, they were possible; therefore, they
This agency based on an immaterial soul, in turn, was nec
had possible relations and consequently possible
essary for Montesquieu's normative foundations (Master laws. Before laws were made, there were possible
son 1981,210-16). Morality required choice?and choice
relations of justice. To say that there is nothing
required escaping the laws of determinacy. This inspires just or unjust but what positive laws ordain or
his appeals to the immaterial realm. To be sure, Berlin
14 He proceeds in the next several paragraphs to distance himself 17To be sure, however, self-interest plays a more fundamental role
from Spinoza in many other related respects. The doctrines of in his material law of preservation.
Spinoza are also mocked in the 73rd of his Persian Letters.
18This is a concise restatement of Leibniz's Meditation on the Com
15 Jonathan Israel, for example, does not take Pierre Bayle's protesta mon Concept of Justice ([1702-3] 1988, 45-46), where Plato's Eu
tions against Spinoza as revealing his sincere view (2002,338-40). I thyphro is resurrected to argue that justice is transcendent and
am unaware, however, of any substantial claims of esotericism in the therefore a standard that is not even alterable by God. This Platonic
literature regarding Montesquieu's writings. Arthur Melzer (2007) argument was offered as an alternative to divine command theory
suggests the possibility of esotericism in Montesquieu by employ and other forms of positivism floating around in the seventeenth
ing an "artful incompleteness" in his Spirit of the Laws (2007,1023). and eighteenth centuries.
This "incompleteness," however, does not seem to apply to his re
marks on the existence of higher standards, on which he is relatively 19To be sure, Hobbes also employs geometry in his political theory.
complete and unambiguous. There is, however, a crucial difference. For Hobbes, geometry is a
formal method of generating conclusions. For Montesquieu, it is an
16This is not altogether different from Rousseau's own approach to analogy to support an entirely different purpose?that of proving
the same problem. the existence of eternal truths.
ONTOLOGY IN MONTESQUIEU AND ROUSSEAU 531
prohibit is to say that before a circle was drawn, normative element of Montesquieu, it seems necessary to
all its radii were not equal. (51, 1.1 [II: 233]) move beyond the law of preservation into the realm of
the moral laws of nature that affirm human dignity and a
One might be tempted in the geometric model to equate law beyond convention.
Montesquieu with Hobbes. But Patrick Riley correctly
asserts the opposite: "This assimilation of moral-legal re
lations to relations of size in mathematics and geometry is Rousseau
entirely Malebranchian (as well as Platonic, Augustinian,
and Leibnizian)" (Riley 1986,170). The common denom
inator is a commitment to Platonism, as Malebranche, As already suggested, Rousseau was familiar with Mon
tesquieu's work. He was employed in 1748-49 by Claude
Augustine, and Leibniz were all staunch Platonists?and
and Louise-Marie-Madeleine Dupin as a research sec
the core ontological feature of the idea of Platonic jus
retary for their attack against the Spirit of the Laws
tice is its independence from convention. The differ
(Cranston 1982,213-15; Shackleton 1961,358). This took
ence between Hobbes and Montesquieu is significant. For
fruit ultimately in two works, the Reflexions sur quelques
Hobbes, geometry is a method employed to generate his
parties d'un intitule and the Observations sur un livre inti
laws of nature. But it does not imply the existence of a
tule de Vesprit des lois. But although Rousseau might have
separate plane of reality, which he altogether denies. For
gained an intimate acquaintance with Montesquieu's text
Montesquieu, geometry is an analogy. The laws of geom
while in the Dupins' employment, Cranston argues, "It is
etry are eternally true?just as are the laws of justice. The
inconceivable that Rousseau can have sympathized with
laws of geometry themselves do not generate justice, since
the main line of the Dupin's thesis_Indeed we cannot
justice itself exists as an independent substantive idea.
doubt that Rousseau was in far greater agreement with
This conception of eternal justice underlies Mon
the views of Montesquieu than with those of his bour
tesquieu's judgments of political practices and institu
geois critics" (1982, 214). And while he could not side
tions. His objection to slavery in this regard has already
been addressed. His distaste for despotism also deserves
with Montesquieu on all points, the following pages re
attention. As Sharon Krause has remarked, "while readers veal crucial elements that he would borrow and develop
in order to shape his approach to institution design and
may disagree about which regime Montesquieu prefers,
legislation.
there can be no doubt as to which one he most despises"
(2001, 231; see also Zuckert 2001, 247; MacDonald 2003,
114). Montesquieu famously expresses his dissatisfaction
with despotism as a regime type, even as he describes
Rousseau's Sensitivity to Context
its optimal machinations from a pragmatic perspective. Though Rousseau has been painted by some to be an
Consider just some of his judgments. Ruling primarily inflexible absolutist (e.g., Berlin 2002), his texts reveal
through fear, despotism reduces human beings to "beasts" a striking attention to matters of context, practical de
(DSL, 3.10 [II: 260]). The despotic practice of torture has tail, and accommodation. His appropriation from Mon
"the voice of nature crying out [in protest] against me" tesquieu is apparent and occasionally explicit. In one of
(SL, 6.17 [II: 329]). Under despotism "human nature his earliest works, he confesses, "With respect to politi
would suffer" (SL, 8.8 [II: 356]). cal establishments, time and place are all-important" (O,
Such judgments cannot issue merely from his law of 51 [III: 56-57]). In book 3, chapter 8 of the Social Con
preservation. Montesquieu is too astute a student of world tract, for example, he observes, "Freedom, not being a
history to ignore that despotism has often sustained itself fruit of every Clime, is not within the reach of every
as long as, if not sometimes longer than, the most ad people. The more one meditates on this principle estab
mirable republics. Fear?the primary engine of despotic lished by Montesquieu, the more one senses its truth"
regimes?is a reliable and effective tool. Indeed, this is (SC, 100 [III: 414]). Elsewhere, he explains how societies
why Hobbes found it an attractive alternative to appeals to are affected by their climate, soil, natural resources, and
civic virtue. Its materiality was neither epistemically sus the size and temperament of their people. Each variable
pect nor practically unreliable. Montesquieu understands matters in identifying its appropriate government. For
this and describes the operations of despotism in a way Rousseau, there is no answer to the question, "What is the
compatible with a modern materialism. It is only in his best form of government?" because "each one of them is
judgments of the regime type that readers can appreciate the best in some cases, and the worst in others" (SC, 90
his greater sympathy for Malebranche, Lamy, Leibniz, and [III: 403]). There is a time and a place for democracy, aris
Plato over Hobbes and Spinoza. In comprehending this tocracy, and monarchy (though?tellingly?never one
for despotism). This makes it necessary to investigate re natural law was exclusively attached to science. These laws
gional circumstances with great care. In writing his pro are purely descriptive?and Rousseau is a moralist. His
posal for constitutional reform in Poland, he insists on a works are infused with normativity. The remaining ques
"full knowledge of local conditions and particular details tion concerns the source of his judgments. He suggests
which... [one] needs to know in order to conform an in in the Emile that it is nothing other than the "immortal
stitution to the people for whom it is intended" (GP, 177 and celestial voice" of conscience?which he defines as
[III: 953]). The science of legislation depends on knowl "an innate principle of justice" (E, 290 [IV: 600]; 289 [IV:
edge of local circumstances and careful consideration of 598]). This standard provides knowledge of the difference
their effects, just as Montesquieu had implied. between right and wrong and the ability to judge.
On Immaterial Ideas Generally in Rousseau. Like

Rousseau's Transcendent Political Laws Montesquieu, Rousseau also imbibed a heavy diet of mod
ern European Platonism. He was a sympathetic student of
Like Montesquieu, Rousseau recognizes multiple types
Malebranche and Lamy, reading Malebranche carefully;
of "natural laws." To be sure, this includes recognition
and of Lamy he "read it [the Entretiens] and reread it a
of the scientific laws of nature. Human beings have one
hundred times; I resolved to make it my guide" (C, 194
foot firmly in the causal material world?and are to some
[I: 232]). He further identified Malebranche as one of the
extent determined by scientific laws, whether social or
great true philosophers (Williams 2007a, 52). He was also
physical. This was to be the subject of his unwritten book
in large part sympathetic to Leibniz.20 It is thus unsur
La materialisme du sage. While he never wrote it, he out
prising that their doctrines would find their way into both
lined its principles in the Confessions:
his metaphysics and politics.21
There is much textual evidence suggesting his sym
Climates, seasons, sounds, colors, darkness, pathies to?if not enthusiasm for?the existence of im
light, the elements, food, noise, silence, motion, material substance, side-by-side with a material realm. In
rest, all act on our machine and consequently other words, he is a dualist. This is most evident in his
on our soul, all offer us a thousand almost guar Letter to Beaumont.
anteed holds for governing in their origin the
feelings by which we let ourselves be dominated.
Such was the fundamental idea for the outline for Man is not a simple being. He is composed of
two substances. While everyone does not agree
which I already had on paper, and from which I
on that, you and I do, and I have tried to prove
hoped for an all the more certain effect on well
it to others. Once that is proved, the love of self
disposed people who, while they sincerely love
virtue, mistrust their weakness, since it appeared
is no longer a simple passion. But it has two
easy to me to write a book out of it that would principles, namely the intelligent being and the
sensitive being, the well-being of which is not
be as pleasant to read as it was to compose. Nev
ertheless, I worked very little on this work whose
the same. The appetite of the senses conduces to
the well-being of the body, and the love of order
title was sensitive morality, or the Wise Mans ma
terialism. (C, 343-44 [I: 409]) to that of the soul. The latter love, developed
and made active, bears the name of conscience.
(Beaumont, 28 [IV: 936] )22
This reflects principles present in Montesquieu, who like
wise read human beings as subject to myriad material
forces (SL, 14.1-2 [II: 474-77]). In light of his interest
20 While Rousseau found much to like in their metaphysics, it cannot
in Montesquieu and the ambitions for his legislator, it be said that he followed these figures entirely. He spells out some
is easy to understand how this work might have fit into of his differences in the FD.
Rousseau's corpus. Rousseau also expresses great enthu
21 J. S. Maloy argues that it "was above all Montesquieu from whom
siasm for the new science: "Science in itself is very good, Rousseau took inspiration for his ancient orientation" (2005,241).
that is obvious; and would have to have taken leave of
22 This is, of course, scarcely the only occasion on which Rousseau
good sense, to maintain the contrary" (O, 33 [III: 36]). It embraces metaphysical dualism. It is scattered throughout his
has uncovered the workings of nature and has in this task works, including Julie, the Entile, his Letter to Franquieres, and the
Moral Letters. (For example, in the Emilehe reports that "Man... is
performed a great service to humankind.
animated by an immaterial substance" (E, 281 [IV: 587]). It should
It would be mistaken, however, to assume on the basis also be observed that elsewhere in the Emile, Rousseau defines
of such passages that Rousseau's conception of justice or justice as the love of order (E, 282 [IV: 589]).
Rousseau outlines two varieties of substance?material moral behavior?behavior ultimately judged by the con
and immaterial.23 Human beings have a foot in each. science.
This doctrine of dualism stems back to Plato24 and is Finally, it is important to contrast Rousseau's admis
subsequently voiced by Montesquieu.25 sion of material impulses?such as in his planned Ma
The rejection of substance monism?specifically ma terialism of the Sage?with his firm insistence that such
terialism26?is most notably depicted in the "Profession impulses can be resisted by a free and immaterial will:
of Faith of the Savoyard Vicar."27 Each article of faith
within the "Profession" is aimed at debunking the mate How can you fail to be sensible [to the fact] that
rialist philosophy of the Philosophes. Among other con this same law of necessity which, according to
clusions generated in the labyrinth of this passage include you, alone regulates how the world and all events
the belief in an immaterial god, a belief in an immate proceed, also regulates all the actions of men, all
rial component of human nature capable of generating the thoughts in their heads, all the sentiments
acts of free will, and the existence of an immaterial soul of hearts, that nothing is free, that all is force,
that survives the body. Each component of the doctrine necessary, inevitable; that all the movements of
assumes immaterial substance. Most importantly for im man, directed by blind matter, depend on his
mediate purposes, the freedom of the individual?made will only because his will itself depends on ne
possible by freedom from physical laws of determinism? cessity? ... For all your arguments, your honest
is necessary for the possibility of virtue. That is to say, the heart protests against your sad philosophy. You
doctrines of the vicar are aimed at creating a realm for are sensible to the sentiment of freedom, to the
charm of virtue in spite of yourself, and this is
how on all sides this forceful and salutary voice of
23 Rousseau says in his Moral Letters that conscience is an "eternal
substance," implying its immateriality. See Moral Letters, 197 [IV:
the internal sentiment recalls everyone. (F, 284
1111]. [IV: 1145])28
24To be sure, there is a growing literature that portrays Rousseau as
deeply sympathetic to Plato and Platonic doctrines?e.g., Cooper While Rousseau acknowledges extended substance's role
(2002), Marks (2002), Maloy (2005), and Williams (2007a, 2007b).
in shaping human behavior, the essence of human
25There is one passage in Rousseau where he at least appears to ques freedom?the necessary condition for morality itself in
tion this metaphysical dualism. In his third letter from the Moral
his view?is resistance against this very force. He elabo
Letters, he writes that the "finest geniuses," such as Descartes, have
"left the obscure question of the two substances as it were un rates in the Reveries that there is no virtue in "following
decided" (186 [IV: 1095]). Shklar takes this to be a rejection of our [material] inclinations_[VJirtue consists in over
metaphysical dualism or Platonism (1969, 9). Yet this interpreta
coming them when duty commands in order to do what
tion is at odds with the many other passages in which Rousseau
enthusiastically embraces dualism, such as in the elaboration of the duty prescribes" (?, 77 [I: 1052-53]). For Rousseau, like
Moral Letters in the "Profession of Faith." Rousseau also implies Montesquieu, there is a separate immaterial realm coexist
the existence of immaterial substance in the sixth of the Moral Let
ing with the material serving as the essential prerequisite
ters, when he speaks of the conscience as an "eternal substance" for human freedom and hence moral behavior.
(197 [IV: 1111]). Rousseau's apparent skepticism in the third let
ter, in this context, is far more likely aimed at the overexuberance
of his contemporaries than a genuine metaphysical doubt. If any On Justice as Immaterial and Transcendent.
thing, Rousseau wants to establish the same metaphysical truths by
"sentiment" instead of cold and abstract "reason." Rousseau's rejection of materialism is ultimately central
to his politics. This is because the idea of justice itself can
26Notably, Rousseau also rejects the other alternative for substance
only attain status as eternal or transcendent if it stands
monism?the idealism found in George Berkeley (see the FD, 25
[III: 27]). above convention. Short of this, one is reduced to seeking
justice in the right of the strongest, the arbitrary rule of
27Following Cranston (1991, 197) and Grimsley (1968, 78), I
take the views of the vicar to be Rousseau's own. Some have re a supposed royal descendent of Adam, or a mighty un
jected this, noting that Rousseau prefaces the vicar's doctrines by constrained leviathan. Book I of the SC is dedicated to
noting that "Instead of telling you here on my own what I think,
I shall tell you what a man more worthy than I thought" (E, 260
[IV: 558]). This claim has been challenged in O'Hagan (2004,238), 28 It is possible that this private letter might have been written by
Dent (2005, 108), and Williams (2007a, 62-76). There are good Rousseau with an eye toward subsequent publication (see Kelly
reasons for this. First, as Allan Bloom has observed, the vicar's 2000, 333, n. 1). These doctrines do, however, appear elsewhere in
biography closely parallels Rousseau's own (1970, 490, n. 40). Sec his more private letters (e.g., March 4, 1764 Letter to Carondelet),
ond, Rousseau embraces the vicar's doctrines on a multitude of which suggests that Rousseau was not simply putting up a public
other occasions. Third, Rousseau takes pride in the vicar's view as posture in favor of a politically popular view?as if this were ever
his own in the Letter to Beaumont (46-47 [IV: 960]) and elsewhere a motivating factor in Rousseau's generally controversial writings,
(R, 34 [I: 1018]). to which he always signed his name (see Kelly 2003).
rejecting a series of such attempts?that is, of ground justice emanating from reason alone" (SC, 66 [IV: 378] ).31
ing justice and political society itself on nontranscen He confirms this in his defense of the Social Contract?
dent or radically indeterminate foundations. This is the one must be certain of any social contract that "it has
underlying flaw uniting the failed attempts of Grotius, nothing contrary to the natural Laws" (LWM, 231 [III:
Hobbes, Pufendorf, and Burlamaqui. Their approaches 807]). Thus not only does Rousseau appear to embrace
all result, for Rousseau, in an unconstrained or absolute an eternal law of justice?but he also suggests that it is an
sovereign. This is the formula for despotism. The laws indispensable standard guiding the social contract itself.
issuing from such systems may take any content what This standard of justice retains relevance in the state
soever.29 And where such license is granted to govern as informing the general will. For Rousseau, the general
ments, for Rousseau, they rarely miss the opportunity will?the fountain of all laws?is linked to his concep
to abuse their authority. The "fallen" quality of human tion of justice: "[0]ne need only be just in order to be
nature makes this a virtual certainty. sure of following the general will" (PE, 12 [III: 251]).
The view that Rousseau's metaphysics is crucial to Later, he insists, "The first and greatest public interest is
his politics has been challenged by Roger Masters in his always justice. All wish the conditions to be equal for all,
"detachability" thesis. Masters argues that while Rousseau and justice is nothing but this equality" (LWM, 301 [III:
sincerely believed in immaterial ideas, these ideas were ul 891]).32 Thus not only does Rousseau have a transcen
timately unrelated to his politics. For Masters, Rousseau's dent standard of justice, but he also intends it to guide his
politics hold more in common with Hobbes than with politics.
Malebranche, Leibniz, or Plato. Nevertheless, there is
much evidence to suggest the contrary. Rousseau fre
quently appeals to justice as eternal or transcendent?as
free from contingency. Its content does vary from time
Indeterminate Transcendent
to time or place to place. In the Emile, he speaks of an Constraint
"eternal justice" (?, 292 [IV: 603]) and of "eternal laws
of nature and order" (?, 473 [IV: 857]) that inform the Although I have argued that both Montesquieu and
properly educated citizen?that is, the uncorrupted citi Rousseau embrace transcendent norms, not all such
zen, the one who is free from evil.30 He does not mean this, norms are created equal. It would be useful to distin
however, to be merely a personal standard. There is am guish the types of conditions governing institutional de
ple evidence to suggest that he meant to incorporate such sign, and how these apply ultimately to the two princi
principles into his politics. Employing Montesquieu's vo pal thinkers considered. When designing institutions, the
cabulary from the 83rd Persian Letter, he asserts, "What is choice of regimes may be either constrained or uncon
good... is so by the nature of things and independently strained.33 Unconstrained institutional design implies the
of human convention_No doubt there is a universal absence of limits or restrictions on the choice of regime
types. In fact, to fit this category, the choice would have
to be almost perfectly arbitrary. Perhaps the exemplar
291 want to emphasize here that this is Rousseau's interpretation would be Thrasymachus, for whom justice is whatever
of Grotius and Hobbes?not necessarily my own. There are good the strongest desires. There are no substantive constraints
reasons to believe that Grotius and especially Hobbes had intended
something entirely different. But my point here is limited to sketch
ing out Rousseau's reaction against the perceived legal positivism 31 This has been disputed by several scholars, including Strauss
or unconstrained institutional design of his philosophical foes. ([1953] 1965), Masters (1968), and Melzer (1990). In assuming
30 One might suggest that while Rousseau's conception of justice is Rousseau's words to be sincere, I follow Berlin (2002), Williams
"eternal," it is not necessarily immaterial?but this interpretation (2005, 2007a), and others. Melzer and others appeal to Rousseau's
would be difficult to sustain in light of his natural philosophy as remark immediately after this passage that the "laws of justice are
presented in the Reveries. For Rousseau, "Everything is in continual vain among men for want of natural sanctions," concluding that the
flux on earth. Nothing on it retains constant and static form" (R, lack of natural sanctions makes such a standard of justice irrelevant
68 [I: 1046]). By implication, if something were to be free from to Rousseau's politics. But reading further down, one finds that the
change?in other words, eternal?it would necessarily have to be point of the positive law, for Rousseau, is to provide those sanc
something other than material substance. That is, justice by virtue tions otherwise lacking: "Conventions and laws are... necessary to
of its eternality would have to be immaterial. Further, Rousseau's combine rights and duties and to bring justice back to its object."
admission of matter being in flux is no sign of his being a mate In other words, convention is necessary to give teeth to the eternal
rialist. Indeed, Leibniz likewise held that "all bodies are in a state law of justice.
of perpetual flux like rivers, and the parts are continually entering 32 A more substantial argument for this claim can be found in
in and passing out" (Leibniz [1714] 1902, ?71). Yet Leibniz was a Williams (2007a, 106-14).
Platonist who insisted on the existence of "eternal and necessary
truths" (Leibniz [1714] 1902, ?28). 33These distinctions draw on Williams (2005, 387-88).
whatsoever on the sovereign s choice of laws or institu peoples and places do not matter. Good laws or institu
tions. tions do not vary according to conditions. Once one has
Constrained institutional design, by contrast, implies determined the magic formula, it is valid for all times and
the existence of limiting factors governing the choice of places.
As with determinate transcendent constraint, inde
particular regime types. But constrained institutional de
terminate transcendent constraint asserts certain univer
sign can be of three varieties. First is positive constraint,
where there are conditions governing regime choice, but sal political truths. The difference resides in the degree
these conditions make no reference to any higher source of determinacy in those truths. Whereas practitioners of
than positive laws, norms, cultural standards, or individ determinate transcendent constraint often hold them to
ual choice. Such constraint can be found in John Rawlss be determinate down to specific positive laws and in
theory of justice. Rawls argues that justice as fairness pri stitutions, indeterminate transcendent constraint shuns
oritizes liberty and equality?not because these principles such specifics. Rather than expressing its truths as spe
are valuable in themselves, but because they are embed cific laws and institutions, it emphasizes principles such
ded in Western culture (1993, 8, 14). So presumably, a as "justice," "liberty," or "equality." As is clear in the terms
Rawlsian theory of justice would operate with an entirely employed here, indeterminate transcendent constraint is
different set of constraints in cultures with different val expressed more in principles than in rules or particular
ues. That is, his conception of constraint is entirely relative sets of institutions. These principles embody a vague
to particular cultures. A similar philosophy can be found ness, to be sure. And for many proponents of determinate
in many legal positivists, such as Hans Kelsen and H. L. A. transcendent constraint, this will seem a liability. But this
Hart. Kelsen held that valid legal norms are merely those indeterminacy has a genuine virtue?that of adaptability
"accepted as valid" ([1934] 1967,4), regardless of content. and flexibility. Specifically, the realization of these prin
Such programs are necessarily "enchained to cultural rel ciples can only take place with the kind of contextual
ativism" (Seung 1993, 44), which has the problem of not knowledge required by both Montesquieu and Rousseau.
permitting the type of criticism that many political crit This abstract point of metaphysics applied to politics
ics desire. From the vantage point of positive constraint, might be rendered clearer via an analogy, as described by
only internal critiques are possible. One may not criticize T. K. Seung.
a regime for championing the subjugation of women, for
example, if it is consistent with the stated values of that Suppose you are stranded on a deserted island
culture. As Kelsen himself confesses, his system places no and that you are starving for food. Your goal is to
constraints that could reject the legitimacy of concentra obtain some food. But there are many ways to ful
tion camps ([1934] 1967, 40). fill this goal. You can catch some fish, find some
Those uneasy with the limited constraints of the first fruit, or roast some worms. Since these meth
two options have appealed to the second and third vari ods are specific, your goal can be called general.
ants of constrained institutional design: the two varieties The relation between an end and its means is the
of transcendent constraint. Both reject positive constraint relation between general and particular. Hence
insofar as it abnegates the possibility of external critiques, generality is as important a feature in making a
and instead insist that some values are universal, eter choice as it is in processing information. For this
nal, and must be embodied in the choice of regimes. As reason, Plato thought that the Form of the Good
such, they both appeal to those immaterial transcendent was the highest principle of choice. Whatever
norms found in Montesquieu and Rousseau. But they goal you may undertake and whatever means
differ in their details. Determinate transcendent constraint you may adopt for the execution of your goal,
holds that the values are quite specific. In particular, those you must evaluate your choice in reference to this
holding this view are likely to promote one regime type highest principle of choice. Hence every choice is
or set of laws as universally valid. This ontology is of a descent from this highest principle to a concrete
ten expressed either by specific rules or commitments to action. (2007, 123-24)
particular institutions. One can find this kind of view in
Condorcet, who argued, "A good law should be good for The islanders desire to eat and Plato's conception of the
all men, just as a true proposition is true for all" ([1819] Good operate in the same way as Rousseau's idea of jus
2001, 58). Another expositor might be Robert Filmer, tice. While the means will shift according to the available
who argues for the "natural right of regal power" in his resources?including the very resourcefulness of the indi
unconditional defense of absolute monarchy ([1635-42] viduals seeking their goals?the goal remains the standard
1991,11). On this approach, the relative circumstances of or principle directing those actions.
53$ DAVID LAY WILLIAMS
Such reflections apply to institutional choices Solon was asked if the laws he had given to the
or regime design, as practiced with indeterminate Athenians were the best; "I have given them the
transcendent constraint. As circumstances differ from best laws they could endure," he replied: this is
one culture to another, there can be no determinate set a fine speech that should be heard by all legisla
of principles applying to all. Any set of prescriptions tors. When the divine wisdom said to the Jewish
must necessarily take into account the peculiar circum people, "I have given you precepts that are not
stances of that political moment?such as topography, good," this only meant that the precepts were
proximity to other societies, history, religion, economic only relatively good, which sponges away all the
circumstances, and the character of its people. But there difficulties one can propose about the Mosaic
nevertheless are measures by which one can judge insti laws. (SL, 19.21 [II: 571])
tutions better or worse. This is the important difference
between unconstrained institutional design and indeter This illustrates Montesquieu's contextualization?the
minate transcendent constraint. Both reject a preexisting fact that justice demands different laws for different peo
set of determinate rules. But whereas the former offers ples. Had the Athenians been a more virtuous people,
no basis to judge superior and inferior regimes, the latter they might have been able to accept a different or more
emphatically insists upon it. demanding set of laws. Or more likely, the relative virtue
of a people eliminates the need for multiplying laws, as
Montesquieu cites with the Romans, who had no need
of laws prohibiting embezzlement when their mores were
Indeterminate Transcendent Constraint "pure" (SL, 19.23 [II: 571]).
Perhaps the most concrete element of Montesquieu s
in Montesquieu
conception of justice resides in his enthusiasm for liberty.
Both Montesquieu and Rousseau?in slightly different Sara MacDonald has argued that Montesquieu's embrace
fashions?employ indeterminate transcendent constraint of free will as a metaphysical principle led to his cham
in addressing the problem of institutional design. The pioning of those regimes that are most "conducive to
presence of indeterminate norms in Montesquieu has human freedom" (2003, 113). His umbrella definition of
been alluded to in the literature. As Sara MacDonald "liberty" is distinguished by virtue of "having the power
has observed, "Montesquieu draws a faint outline of jus to do what one should want to do and in no way being
tice" (2003, 111). Mark Hulliung likewise describes Mon constrained to do what one should not want to do" (SL,
tesquieu as employing an "abstract and shadowy notion 11.3 [II: 395]). This definition expresses both the extent
of justice" (1976, 113). Although "shadowy," his indeter and the limits of determinacy in his conception of justice,
minate standard of justice frequently manifests itself. In such as it is. To be sure, Montesquieu clearly links up his
order to make more concrete an idea that is opaque by na conception of liberty with normativity. "Liberty" is do
ture, it is instructive to isolate negative implementations ing what citizens should do. But he carefully avoids laying
of his concept of justice. This includes his condemnations down precise guidelines for what should be done.
of slavery and despotism, which clearly violate his broad This conception of liberty provides genuine sub
est principles of political justice. The negative operations stance to his normative constraints on regime design.
of justice can also be seen in his condemnation of war pur Specifically, he emphasizes, "liberty is found only in mod
sued to settle private scores (PL, Letter 95). Additionally, erate governments" (SL, 11.3 [II: 394]). So although Mon
he characterizes the behavior of the Troglodytes in their tesquieu often describes the operations of immoderate
decadent stage as generally unjust (PL, Letter 12, 13). governments (such as tyranny), readers can safely assume
More usefully, there are also elements of a positive that insofar as he embraces liberty, he effectively rules
conception of justice in Montesquieu?though they are them out with this normative principle. It is this emphasis
more scarce. In the Persian Letters, Usbek writes, "Justice on liberty that also leads Montesquieu to sympathetically
is the proper relationship actually existing between two sketch the British parliamentary system, since liberty is
things" (PL, Letter 83). In Spirit, Montesquieu comments only present when power is not abused. The parliamen
on the justice of the Athenian system of taxation that tary system of checks and balances is designed precisely
was based partly on proportions of wealth, partly on the to thwart the tendency of human nature to grab more
needs of citizens?and an unjust one would be strictly power than is consistent with widely shared political lib
proportional, such that even the poorest citizens would erties. This assessment also makes good sense in light
be required to hand over their property to the common of Montesquieu's repeated assertions of human dignity
treasury (SL, 13.7). This is evident, for example, in his in the face of slavery and despotism?those institutions
citing of Solon: most fundamentally opposed to freedom.
This reading of justice as liberty informs Mon partly fair and partially unfair to Montesquieu. It is un
tesquieu's exploration of regime types. He is explicit in fair insofar as we have uncovered a normative dimension
identifying "moderate" forms of government as more informing his condemnations of slavery and despotism.
conducive to liberty than despotic ones (SL, 2.10 [II: It is nevertheless true, however, that these condemnations
259-61]). At the same time, however, there is no reason are more scattered than systematic. Montesquieu's moral
to assume that only one set of institutions will satisfy the judgments are almost offered as diversions from his social
objective of securing justice, or at least avoid despotism. science in a fashion that arguably parallels much contem
Indeed, Montesquieu suggests the opposite: that there are porary social science. Montesquieu's rigorous empirical
some circumstances that call for democracy, others that analysis is accompanied by frequent implicit value judg
call for aristocracy, and yet others that demand monar ments. But without a more explicit normative grounding,
chy. Different regime types thrive and fail under different the reader is occasionally left wondering about his nor
conditions. Democracy, for example, thrives in the ab mative lessons. And indeed, his curiosity about the oper
sence of luxury and greater economic equality (SL, 7.2 ations of the empirical world often obscures some of his
[II: 334-35]), whereas aristocracy and monarchy can bet most fundamental normative dispositions. While he con
ter tolerate luxury and unequal wealth distribution. demns slavery and despotism, for example, he proceeds
This being said, there may be general tendencies to explain how they might function most efficiently. It
that?conditions being equal?would suggest that some is this kind of equivocation in the Spirit of the Laws that
institutional arrangements are best. Monarchies, for ex most irks Rousseau. Once Rousseau has condemned slav
ample, do a better job of securing liberty than despotisms, ery and despotism, by contrast, he is done with them.34
at least where the princes rule justly. But as the greatest There is little utility in elaborating on the efficient use of
point of honor in a monarchy is obedience to the prince, unjust regimes or practices.
this liberty is certainly less than what might be found in a A second problem is that his principle of liberty,
well-functioning republic. To this extent, commentators which might well serve as his highest principle, suffers
have frequently identified republics or commercial soci from perhaps insufficient determinacy. As readers of the
eties to be far more to Montesquieu's taste?insofar as tradition of political thought can confirm, liberty can
they work to promote that liberty present but muted in mean radically different things to different people. Mon
monarchies. But liberty, too, has its limits. This is why, tesquieu does provide a definition, but he does not make
I suggest, Montesquieu?to his credit?never advocates clear just how far this liberty is to be taken. He acknowl
one regime type as universally superior. A poorly func edges that liberty can be extended too far into the realm
tioning republic or commercial society can easily have of license, but he does not clarify what other principle(s)
too much liberty. That is to say, liberty in a democracy, might effectively constrain liberty. On this point also,
for example, can devolve into license (SL, 8.2 [II: 350]); Rousseau's developments may be of some use.
and where this occurs, one might reasonably prefer a well
functioning monarchy. This flexibility is a great advantage
of Montesquieu's approach. Indeterminate Transcendent Constraint
Two problems burden Montesquieu's execution. The in Rousseau
first is his lack of clarity. To be sure, one cannot even
Rousseau at first appears similarly vague in his statements
be sure whether these principles were entirely explicit
in his own mind when writing the Spirit of the Laws. of his highest normative principles. Collecting his many
references to his transcendent conception of justice, how
This is because the work is so overwhelmingly empir
ever, one can derive some features. It tends toward equal
ical. This is not a flaw insofar as it is read as political
sociology. But it makes the work more difficult to read ity (IWM, 301 [III: 891]); it is intimately connected to
civil liberty (IWM, 261 [IV: 842]); it is inseparable from
normatively. This dominant sociological tone has long
goodness (?, 282 [IV: 588]); it is the "love of order which
confused the text's readers about his ultimate prescrip
tions and has led some to the conclusion that he had none. preserves order" (?, 282 [IV: 589]); it is giving to each
Montesquieu's occasional entertaining of institutions he what is theirs (?, 285 [IV: 594]); it is the "truth of things"
ultimately condemns?such as slavery and despotism? (R, 47 [I: 1028]). If one reads the general will as having
only adds to this confusion. This reaction to VEsprit is similar content to justice,35 it would also include peace
embodied in Rousseau's own reading of the text: "He 34 Rousseau elaborates in his antipathy for despotism in his letter to
was content to discuss the positive right of established Mirabeau from 26 July 1767.
governments, and nothing in the world is more differ 35This is suggested by Rousseau himself (P?, 12 [III: 251]; see also
ent than these two studies" (?, 458 [IV: 836]). This is Williams 2005).
53$ DAVID LAY WILLIAMS
and fraternity (SC, 121 [III: 437]). None of these passages Poland can only be the work of the Poles or of someone
are precise in their sketching of justice. Certainly there who has studied the Polish nation and its neighbors first
is nothing here so concrete as Locke's laws of nature. As hand. A foreigner can contribute scarcely any but general
with Montesquieu, a useful starting point is sketching views" (GP, 177 [III: 953]). The point is that Rousseau
what justice is not. Justice is clearly not all of those vari has a standard of "good" institutions that can only be
ants of society described in book 1, chapters 2-4 of the realized with a detailed knowledge of local conditions.36
Social Contract. It is neither force, tranquility, conven His indeterminate standard of justice thrives on this kind
tion, slavery, nor inherited titles. That is to say, it can of knowledge. Without empirical knowledge, the indeter
not be anything like the mere peace and order promised minate standard is nearly useless.
by Grotius, Filmer, and Hobbes. As Shklar summarizes Although indeterminate, Rousseau's principles have
Rousseau, "The just society is evidently a society without more determinacy than Montesquieu's. Most notably,
subjection" (1969, 182). The negative function of justice Rousseau balances his commitment to liberty with simul
laid out in the early chapters of the Social Contract along taneous attachments to equality and order. This suggests
with the positive conceptions discussed elsewhere get us a more explicit weighing of principles in Rousseau?and
as close as we can come to a definition. His understand suggests how and why certain kinds of liberty might be
ing of justice has content, even if it is indeterminate. This, limited. Whereas Montesquieu is concerned that liberty
combined with the transcendence described earlier, iden might devolve into license, he does not make explicit
tifies Rousseau as employing indeterminate transcendent his principles of where to draw the line. By contrast,
constraint. Rousseau's multiple principles offer more clarity to such
This blending of transcendent constraint with inde constraints. This can be seen, for example, in his limiting
terminate principles is embodied in countless passages of property rights. Although the property ownership is
from his corpus. For example: "[T]he question, which is among "the most sacred of all the rights of citizens" (PE>
absolutely the best Government, does not admit to a solu 23 [III: 263]), it must be balanced by equality, a principle
tion because it is indeterminate: or, if you prefer, it has as emphasized in the last paragraph of his discussion of pri
many good solutions as there are possible combinations vate property in the Social Contract. Rousseau punctuates
in the absolute and the relative positions of peoples" (SC, this discussion of the "sacred" right of property that with
104-5 [III: 419]). Such excerpts imply two things. First, out due consideration to a robust conception of equality,
Rousseau follows Montesquieu in acknowledging the di liberty and equality are "only apparent and illusory" (SC,
versity of political circumstances. Second, he still insists 56 [III: 367]). As such, the right of property remains "sub
on an a priori standard by which to judge each partic ordinate to the right the community has over everyone"
ular government. All one has to do is to examine the (SC, 56 [III: 367]). This balancing is typical of Rousseau's
circumstances. A democracy, for example, is good?but approach and suggests greater determinacy of principles
only contingently so. It can only thrive in a small terri than is found generally in Montesquieu.
tory with simple morals, equality of ranks, and no luxury
(SC, 91 [III: 405]). Under these conditions, it would be an
effective and just form of government. Absent these con
Conclusions: The Relative
ditions, it is potentially dangerous and despotic. Likewise,
an aristocracy can thrive in a middle-sized territory, mod Advantages of Indeterminate
eration amongst the wealthy, and contentment among the Transcendent Constraint
poor (SC, 93-94 [III: 407-8]). Where these conditions are
lacking, the state is unlikely to be just. The virtues of Montesquieu and Rousseau's approach
Although the characteristics of a state should vary emerge in comparison with other options. It is worth
according to its circumstances, the point here is that there briefly comparing it with the other ontologies raised ear
are right answers for Rousseau. By requiring that different lier. Scarcely anyone explicitly advocates unconstrained
circumstances demand different institutions, he reveals institutional design, and this is for good reason. It leaves
his constraining standards. There are better and worse all options on the table?including those practices ex
applications of justice in any given context. In order to plicitly condemned by Montesquieu and Rousseau: slav
serve justice well, however, one must truly know those ery and despotism. Positive constraint has more advo
circumstances. It is for this reason that he insists on a cates, but much the same difficulty. Consider Rawls, for
detailed knowledge of the state. In this context, it is easy
to understand why it is that Rousseau opens his Govern 36Trachtenberg (2001) is right to point out the importance of this
ment of Poland with this caveat: "A good institution for kind of knowledge to Rousseau. See also Hanley (2008, 226-30).
example. Although Rawls's two principles resemble the ence of certain institutional arrangements is by no means
Enlightenment values embraced by Rousseau, this com an indication of a just order on Rousseau's reading. That
mitment is contingent. He only prioritizes liberty and can only be measured against the ideas of justice, liberty,
equality because they are embedded in his own particular equality, and order.
culture, as he acknowledges. Presumably, different cul This view also encourages a greater sympathy for the
tures would have to generate their own procedures based diversity of existing institutions without taking recourse
on their own principles. So if a political community em to relativism. One can observe the operations of differing
braced the subjugation of women, radical inequality, or institutional arrangements from this perspective with
torture, those values would factor in the foundation of out immediately coming to the conclusion that they are
its particular account of justice. Rawls's mature theory wrong insofar as they depart from a chosen determinate
suggests no higher principles to suggest otherwise. model. The question is not "how democratic?" but rather,
It is precisely these concerns that have led many to "how respectful of values like liberty, equality, dignity, or
seek more substantial footing for their political theories. der, and justice?" insofar as those are transcendent values
Speaking in terms of political ontology, determinate and worth pursuing in all cultures.37
indeterminate transcendent constraint represent the two Scholars today are generally satisfied that Mon
available options. I argue that confusion about these dif tesquieu and Rousseau were social scientists?even where
ferent approaches explains Berlin's error. Berlin derives they depart from some of their specific laws. In this
his "contradiction" from a false assumption about politi sphere, we are unlikely to derive much contemporary
cal ontology. He has assumed that the only form of tran relevance. But it is in the normative realm?particularly
scendent constraint is determinate?that if one believes in Rousseau?that these figures make their greatest case
in transcendent principles, those principles must be pre for relevance. The simple fact is that implicit value judg
cise and realized with uniformity throughout all cultures ments underlie the choice of all political institutions. If
and conditions. But if my analysis is right, Montesquieu one is discontent with those choices, then Montesquieu
and Rousseau point to a more promising approach with and Rousseau provide a viable alternative?one that safe
obvious appeals in a world where new constitutions are guards certain normative principles as transcendent with
being drafted and tested. Those who might suggest that out falling into dogmatism. Such, I argue, is one of the
the regular rules of democracy and liberalism, on the one greatest lessons of the Enlightenment for our times.
hand, or theocracy, on the other, should work everywhere Finally, a study of Montesquieu and Rousseau in these
will be undoubtedly frustrated for all the reasons that one matters sheds particular light on the relationship between
might guess from a careful study of Montesquieu and empirical analysis and normative assumptions. It is typ
Rousseau. One cannot assume that a modified democ ical for social science in recent decades to take certain
racy should work in Iraq, for example, simply because normative assumptions as a given, such as Robert Put
many believe it to work well in the secular West. nam's (1993, 1995) assumption that democracy is suit
The fear in abandoning such absolutism is the po able for his chosen areas of research. Indeed, Rousseau's
tential relapse to relativism. But if Montesquieu and misgivings about Montesquieu reflect an impatience for
Rousseau are right, one need not retreat to relativism in this disposition in the Spirit of the Laws. To some extent,
questioning the universal applicability of democracy. The of course, this philosophic laxity combined with empir
choice between transcendent values and postmodernism, ical rigor is understandable and justifiable. This is espe
as it is often put, is false. Rousseau and Montesquieu cially the case since empirical results are much more obvi
maintain that some values are indeed universally good, ously subject to debate than are ideas like liberty, equality,
but they do not hold that this implies a commitment to and justice. In other words, political science is generally
particular institutional arrangements. Although they are more forgiving of laxity in its treatment of normative
sympathetic to democracy under certain conditions, they conceptions like justice, liberty, and equality than it is
do not hold democracy to be a moral absolute. Democ with the same attitude toward its empirical dimensions.
racy itself can only be measured by yet higher values, In fact, Richard Rorty has expended great philosophic
including liberty, equality, and justice. Where democracy energies in arriving at the same conclusion shared with
fails to safeguard these indeterminate principles, it holds many social scientists?that it is permissible and often in
little value. A democracy, for example, without order may evitable to simply take certain common norms for granted
be a democracy in the descriptive sense, but it is not nor (1989, especially chap. 3). To be sure, this approach can be
matively just for Rousseau. And to be sure, one can rea read by some as progressive, insofar as it dispenses with
sonably question whether democracy as instituted in new
regimes in the Middle East serves these ends. The pres 37These themes can be found in Muthu (2003, 277-78).
questions many deem epistemically inaccessible. But oth Descartes, Rene. [1641] 1968. Meditations in Discourse on
Method and the Meditations. Ed. F. E. Sutcliffe. London:
ers read it as pernicious insofar as it seems to close off
Penguin Books.
debate on those governing principles yielding enormous
influence. Descartes, Rene. [1664] 2003. Treatise of Man. Trans. Thomas
Steele Hall. Amherst, NY: Prometheus Books.
Those dissatisfied with the normative rigor of many
Durkheim, Emile. 1960. Montesquieu and Rousseau: Forerunners
social scientists or the conclusions of Rorty might well re
of Sociology. Ann Arbor: University of Michigan Press.
main in sympathy with Berlin's either/or approach, which Filmer, Robert. [1635-42] 1991. Patriarcha in Patriarcha and
has at least the appearance of great rigor in its sharp ana Other Writings. Ed. Johann P. Sommerville. Cambridge:
lytic division. The apparent advantage of Berlin's either/or Cambridge University Press.
approach over Rousseau's "middle way" is the greater ap Grimsley, Ronald. 1968. Rousseau and the Religious Quest.
Oxford: Clarendon Press.
parent philosophical rigor associated with the former.
The obvious problem with Berlin's approach, however, is Grimsley, Ronald. 1972. "Introduction and Notes" to Du Con
trat Social. Oxford: Oxford University Press.
its insensitivity to human needs and contexts, which is a
strength of the indeterminist approach. Yet one need not Hanley, Ryan Patrick. 2008. "Enlightened Nation Building: The
'Science of the Legislator' in Adam Smith and Rousseau."
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Kelly, Christopher. 2000. "Notes" for The Reveries of the Soli
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