The Spirit of Laws

The Spirit of the Laws begins with a short Foreword (added in 1757) followed by a Preface. In the Forward, Montesquieu briefly defines virtue. As he will subsequently make clear in Book 1, virtue is the principle, or “spring,” by which the republican form of government acts. Virtue is the “love of the homeland” (xli) a love Montesquieu equates with love of “equality.” This is neither a religious nor a moral virtue; it is a political virtue. He notes that anytime he refers to “virtue” in the book, it will always be with regard to political virtue. Montesquieu, keenly aware of his audience, and personally a subject of the French monarchy, makes clear that he in no way means that virtue is absent from monarchies; in monarchies, virtue may or may not be present to varying degrees. The principle of a monarchy is honor, not virtue.

In the Preface, Montesquieu humbles himself before his reader, explains the difficulty with which he composed The Spirit of the Laws over decades of research, and asks that his audience refrain from judgment until they’ve closely examined the work. His broadest goal is to increase the love of reason and the acquisition of knowledge: “Man,” Montesquieu writes, “that flexible being who adapts himself in society to the thoughts and impressions of others, is equally capable of knowing his own nature when it is shown to him, and of losing even the feeling of it when it is concealed from him” (xliv-xlv). Through an investigation of the spirit of the laws across various nations from antiquity to the contemporary age, Montesquieu seeks to explain human nature, at least as it is socially and legally determined. He writes that his research proceeded without any peculiar designs or strategies. It was only after he discovered his fundamental principles (over the course of this research) that the remainder of the project fell into place.

In “Part 1, Book 1,” Montesquieu begins his proper engagement with the basic ideas of the book. In so doing, he establishes the philosophical groundwork for his most essential concepts. He defines laws as “the necessary relations deriving from the nature of things” (3). There are many kinds of laws. The divinity acts according to laws it creates and preserves, while the material (or natural) world acts according to laws of nature. Montesquieu further makes a distinction between the physical/material and intelligible (or spiritual/intellectual) worlds: Both worlds are lawlike, i.e., there are “consistently established” relations among things in the world. However, in the physical world, those laws are universally applied because the application is by divine agency; Montesquieu uses the laws of physics as an example; velocity is consistent throughout the physical world. In contrast, in the intelligible world, even though the law is universally applicable, it is not always applied, because fallible human agents are responsible for its application; for example, justice is an intelligible/intelligent law, but humans, in their imperfection, will not always implement justice. Moreover, before human laws are made, there are “relations of justice” (4). The possibility of justice exists prior to the law; it is not a creation of the law. Humans can, however, create their own laws—again, called positive law—intended to implement and secure justice, liberty, etc.

Montesquieu then employs the classic philosophical notion of the “state of nature,” in which there are laws of nature prior to all civil society and governance. He claims that there are (at least) four natural laws: the law of peace, the law to seek nourishment, the law to socialize with other individuals, and the law proceeding from the desire to live within civil society. That said, the laws of nature are not his ultimate focus, and Montesquieu quickly turns his attention to the “positive laws” of civil societies. He makes the curious claim that “as soon as men are in society, they lose their feeling of weakness; the equality that was among them ceases, and the state of war begins” (7). The feeling of individual empowerment generated in a society seems to be connected to the state of war, and this holds true on the national level as well. At this point, Montesquieu articulates three basic concepts: the right of nations, political rights, and civil rights. The right of nations concerns the laws that should exist between the peoples of various nations. Political right concerns the relations between the governing body and its subjects (or citizens), while civil rights concern the relationships between the citizens of a given nation.

For Montesquieu, laws are best when they are well-suited to the particular conditions to which they are applied. Specifically, these laws ought to be appropriate for the character of the people, their type of government, and even the “physical aspect of the country” (9), including its geography and climate. All of the various relations taken together yield the “spirit of the laws,” a concept so integral to Montesquieu’s project that it became the namesake. This “spirit of the laws” is the true subject of the book, not any particular analysis positive laws. He writes that “[t]his spirit consists in the various relations that laws may have with various things” (9). Despite this imprecision, Montesquieu’s concept of the “spirit” of laws takes on a life of its own when understood as a guiding principle or attitude discoverable when all the various aspects of a country–from its religion to its terrain to the internal relations of laws–are taken together. The spirit of the law is abstractable from the totality of these relations.