The Spirit of Laws is a discourse on political theory. The book was initially published anonymously in 1748. The rationale for the anonymous publication was because Montesquieu’s work had been placed under censorship. The influence of the book outside France led to its translation into different languages. The first English translation was published in 1750. The work has influenced the thoughts of many other intellectuals, including the founders of the American constitution. The book explores different areas including social life, law, and the coverage of anthropology while offering countless commendations on the different concepts. Through the book, Montesquieu supports the constitutional model of government. This is a government where there is no slavery, but there is a separation of power, and where the civil liberties of different individuals are checked. The author also proposes the view that the political institutions developed should portray the geography and the social aspects of the host community. This paper explores the book towards developing answers to the question on whether Montesquieu presents a theory of justice and rights. The paper also explores Montesquieu’s conception of the relationship between power and justice (Montesquieu 12).
Montesquieu’s theory of justice
Through this paper, I will explore the issue of whether Montesquieu developed a context of laws without measuring their justice. This is evident from his development of a model explaining justice as moderation. He also presents the virtue of justice as the underlying spirit of moderation. This is developed from the concern whether institutional and legal history qualified as a basis for legitimacy serving the course of principles for the political right. From Montesquieu’s arguments, there is a demotion of the idealist view of justice towards developing a comparative evaluation of laws and the respective systems (Todorov, 263). The issue of the comparative evaluation of laws and other respective systems raises questions as to whether political structures will satisfactorily perpetuate justice. However, it is also possible to conceive a totally different view, where Montesquieu did not reduce the rights to fact, but restored the fundamental rights of all human groups (Binoche 60-61). This shows that the spirit of the law could be viewed as an account, which presents a code of liberty and reason, which appeal to the respective rights of persons over one another (Montesquieu 491). Through this model, it will be a question of exerting one’s rights over those of the other, which is likely to breach justice. In this case, observing the rights of one may infringe those of another. An example is the case of increase product prices, in response to increasing production costs. From the view of rights, the producer has the right to increase prices to a level that allows them to make profits. On the other hand, the consumer holds the rights to access the products at reasonable prices. As a result, the function of the political system comes in as a moderator to guide on the way forward, which will not disadvantage either party.
In line with the views of Hegel while acknowledging the historicist conception on the investigation of the emergence of institutions, it was concluded that the origin of the right can not define what can be considered just (Hegel 16f). Therefore, this leads to the question as to whether Montesquieu disregarded the basic idea of justice, favoring the justification of institutional models. Since right does not dictate what is considered just, questions are raised as to whether the institutions charged with the role of defining it will make it to the good of all, or to the detriment of some. There is also a question as to whether Montesquieu replaced the rationalizing of law to develop a theory of defining justice. Through his presentation of justice as moderation, he undermines the basis of justice. In this case, there is no standard of moderation, which raises concerns over the limits. The basic argument throughout this paper is that, the book by Montesquieu does not disqualify the conception of justice beyond the fundamental rationality behind legal standards (law). The book does not disregard justice in favor of an external rationality, connected to physical or moral constructions as well as historical events that are used as the basis for the definition of the spirit of the people (Montesquieu 73).
However, it should be noted that Montesquieu neglected aspect of political obligation, related to sovereignty theory, moving away from the conceptual framework of appreciating the autonomy of politics and justice from all metaphysical viewpoints. However, despite all the constructions of the context, Montesquieu does not abandon the objective definition of right. As a result, the relationship of equity, according to Montesquieu, is an area that the legislative officer must respect. This is if they are to enhance political moderation and uphold the state (Alasdair 182). In this context, liberty, justice and power seem unified in a construction of rationality where the ultimate goal is enlightened utility. Montesquieu’s theory of rights confronts the difference between absolute justice and relative justice, which is founded on the measure of equality (Henri 60f). It is no longer an issue of comparing the conceptions of natural and human justice, contemporary human rights and classical natural legal principles. Although the conception of natural justice is not present in the spirit of the Law, subjectivity is not used as the basis for legal values (Martino 235, 240). Justice and rationality are merged in developing the concept of necessary relations, which are supposed to form the basis of legal principles. The view is that the legislator should uphold the relations while the dictatorial politician does not (Martino 237). Therefore, according to Montesquieu, the classical model of justice, which is founded on proportionality in equality, is defined on the basis of the modern meanings of liberty as the safeguarding of rights from the abuse of power (Montesquieu 162).
In evaluating whether Montesquieu fully developed a theory of justice, it is important to define justice. Justice is defined as an association between two different things based on the affiliation of suitability existing between the two different subjects in question (Montesquieu 162). Montesquieu rules out the overlap that may come in between moral and natural law. This leads to the distinction between the rights of man and equity, considering that man is an intelligent being subject to the laws of nature. Laws of nature originate from the human’s sensuous and animal nature, including his need for food, peace, and social support originate from self-preservation, prior to the conception of reason (Victor 190). The reflection on justice involves the meaning of equity, which comes into existence among the relations of different intelligent beings within society. Montesquieu affirms the uni-vocal nature of law, which permits for the ethical and the physical relations of perfection to be incorporated into context (Althusser 38). From the definition, the natural responsibilities of man as an intelligent creature refer to the possible association between different intelligent actors in a position of subordination or equality. Therefore, where there is a society, the political obligation of obeying the laws of the society is raised, targeting the intelligent actors (Althusser 38). There is also the principle of gratitude, which requires the intelligent actors to recognize what they receive, and dependence, which entails the reliance of the created on the creator (Montesquieu 78).
From Montesquieu’s book, justice is presented as a product of moderation. In this case, good in politics is justified by the evils of the opposite side, which is despotism. This shows that Montesquieu develops justice and rationality as a function of the association between relations and moderation (Montesquieu 140). Most important in the association developed around the concept of justice is proportional relations, which is expected to uphold civil and political liberty. Therefore, through moderation politics, the correct measure is between the extremes of lack and excess, where justice is found between the two extreme points. Montesquieu holds the view that the plurality of moderation regards what suits the person, which needs not to be imposed on them through real or symbolic violence (Montesquieu 140).
Montesquieu’s theory of rights
Despite the major role of Montesquieu in the emergence and the development of constitutionalism, he is largely not viewed as a natural right thinker (Zuckert 1-5). From his dissociation from natural rights development, questions would include whether the rights are not directly related to constitutionalism. Montesquieu disappears in an important aspect of modern constitutionalism, where the court should dedicate a special branch to campaign for the rights of people’s rights whether constitutional, human or natural. In general, Montesquieu cannot be perceived as a natural right thinker. In addition, he cannot be seen as a natural law architect. However, he does speak of natural law in some contexts. When referring to natural law, he refers to it as droit naturel. However, the framework where he uses the expression most implies natural law. This is different to the natural rights of individuals as is should be the case in most instances. Since Montesquieu fails to let the phrase natural rights out of his discussions, he is considered a proponent of natural right thought (Montesquieu 456).
The area that depicts the uncertainty between the natural rights and the natural law of Montesquieu is the political philosophy developed, which portrays a wider problem. The problem has caused a lot of controversy and uncertainty among the scholars interpreting his political thoughts. The issues include whether he develops a standard form or a normative stance based on which to evaluate political communities. He also appears more relativist, where his basic aim is to influence his audience, towards liking his prince’s laws, homeland and duties through demonstrating the maxims of his nation (Montesquieu 135). This is contrary to the fact that laws should be relevant to the people they are designed to serve. Therefore, it is unlikely that the laws of one country will be fit for use in another one.
Montesquieu holds the general view that rights could be reduced to facts, where he believes in the restoration of the inherent human rights to people. He holds that the reduction of rights to facts need to be subjected to liberty and a code of conduct, which appeals to the respective rights of every single person over those of the other. In essence, Montesquieu does not develop a self standing rights model as he views rights as standards of subjecting a code of conduct and the liberty of different groups of individuals. Therefore, his rights model develops on the basis of the fundamental constructions related to the liberty of different persons (Montesquieu 345). As a result, Montesquieu does not develop an effective model explaining the rights of persons, natural or human. In this case, he explains rights as a subject of projecting one’s right without breaching those of other people. Further, he holds the view that rights cannot be used as the basis of explaining what is just and what is not. This idea contradicts the general principle guiding justice as the rights of an individual should constitute part of the justice entitlement of the given person. As a result, this shows that his conflicting views regarding the rights of people depict the lack of a proper theoretical model to explain the rights (Montesquieu 178).
The Relationship between Power and Justice
Montesquieu holds that justice can only be maintained by a well calculated balance. This is between the power to punish, and freedom of the citizens to choose what they want and what to do. He contrasts the condition of moderation, which he views as one character of justice, with one headed by despotism (Montesquieu 138). According to Montesquieu, a society subjected to despotism is characterized by an excess of power, which destroys the relations among people and things. According to him, a just society is one where the violence and the coercion that is necessary to maintain obedience to the minimum (Montesquieu 400-402). Therefore, Montesquieu views power as a contributor of justice, but at the same holds the view that excessive power destroys the balance, pushing the society into destruction. Further, he holds that the powers held by the state, which are supposed to maintain the moderation required to uphold justice are supposed to be restrained (Montesquieu 321). Limiting the powers of the state will help ensure that the state does not drive the society into a state where power is abused, whether civil, political, fiscal and military.
Montesquieu views that power is a necessary ingredient in ensuring that justice is upheld at the society level. Thus, it is the tool which is used by the state to compel different people and groups to adhere to rules and laws. However, towards actualizing the moderation of power, the extremes of the variation should be known (Montesquieu 512). An example here is the case of a state where there are no power structures. At such a nation, different individuals can commit crimes, and nothing can be done to punish them, whether by the state or other administrative units (Montesquieu 178). However, in case there were power structures within the given society, the offender will be subjected to punitive action, which is determined by the power structure. However, during the imposition of the punitive structures, the power structure should exercise judgment, to ensure that the offender is offered punishment which is justified. In case the power structure is not balanced, the offender is likely to be subjected to unjustified punitive action. This will depict that society does not have the rule of justice. Therefore, according to Montesquieu, power determines the balance of control on the functions of the nation, which dictate the moderation level that signifies justice (Montesquieu 502).
The spirit of the law is a political theory discourse, authored by Montesquieu. The book influenced the thoughts of many intellectuals. Thus, it influenced the constitutionalization of many nations, including America. The book explores different areas, including law and social life among others. Montesquieu’s theory of justice is developed on the basis of establishing a moderation of power, which is likely to uphold justice and protect the rights of individuals. According to Montesquieu’s theory of justice, the real good of people is justified by avoiding the negative attributes of despotism. Montesquieu’s theory of rights holds that rights are reducible to facts, which are subjected to a code of conduct and liberty towards cultivating the rights of different people over those of others. Montesquieu holds that rights cannot be used as the basis for determining what is just, which shows that his theory is faulty. In this case, justice can only prevail where the rights of different individuals is upheld (Martino 40). The idea that rights do not determine justice, should be used as the guiding principle in determining justice, as the rights of an individual constitute part of their justice entitlement. The relationship between power and justice is based on the principle of moderation, which is the calculated balance between the power to control and the freedom allowed for the citizens of the nation. Montesquieu points out that a nation subjected to despotism will be characterized by excessive citizen control, which destroys the balance of justice. As a result, he holds that a proper balance of power determines the level of justice in a society where there are no areas of citizen abuse.
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