The Spirit of Laws

Part 2 concerns the dispensation of law in relation to offensive and defensive force; the nature of political liberty; and the relationship of liberty to taxation. Book 9 considers the defensive capabilities and stratagems of the three governments. Republics, for instance, commonly form a federation in which “many political bodies consent to become citizens of the larger state they want to form” (131). This confederacy is useful because it has the external power of a monarchy but the internal virtue of small governments. Monarchies, which are larger in scope, are inhabited by a spirit of “war and expansion” (132). It protects itself along the frontiers of its territory. Despotic regimes, which are generally even more massive in territorial scope than monarchies, leave the farther reaches of their empires to ruin. Montesquieu writes, “This state does to itself all the ill that could be done by a cruel enemy, but an enemy that could not be checked” (134).

The right of nations, i.e., the law governing international relations, dictates the dispensation of offensive force, the subject of Book 10. States have the right to wage war, Montesquieu writes, in self-defense—but war must be conducted within a strict code in accordance with the rights of nations: “When that right is based on arbitrary principles of glory, of propriety, of utility, tides of blood will inundate the earth” (139). Montesquieu discusses the proper nature of conquest, which should not destroy but preserve the conquered. Based on this ethic, he censures Spain’s unholy conquest of Mexico, writing, “I would never finish if I wanted to tell all the good things they did not do, and all the evil ones they did” (142). Montesquieu recommends that conquerors leave intact the mores of the conquered (as the Romans did), even if the laws must be updated. Therefore, conquest is not advisable for republics, in part because democracy is generally not in favor with the conquered people. Montesquieu then discusses the conquests of Alexander the Great.

Books 11 and 12 consider the nature of political liberty. Book 11 considers liberty in relation to the constitution; Book 12, to the citizen. Montesquieu writes, “Liberty is the right to do everything the laws permit” (155). Nevertheless, political liberties must be moderated to encourage citizens to act for the good of the republic. In a favorable discussion of the constitution of England, Montesquieu distinguishes three separate powers of government, now referred to as the legislative, the executive, and the judicial power of government. The legislative power makes the laws, the executive power enforces the laws regarding the right of nations, and the judicial power enforces civil law. Montesquieu discusses how these powers of government ought to be separate from one another and limit each other’s power. The power of veto, for example, is the executive power to limit the legislature. He then discusses an ancient understanding of monarchy and the separation of powers at various points in Roman history.

Montesquieu then discusses citizens’ political liberty, which depends on the security afforded to the citizens and thus “depends principally on the goodness of the criminal laws” (188). Criminal law, then, is paramount. Montesquieu believes there are four kinds of crimes: those against religion, mores, tranquility, and security. The respective penalty must fit the crime. Crimes against security are the gravest; if a crime is against the tranquility and security of a citizen, then it should be treated as a crime against security because that is the more egregious of the two. Montesquieu recommends circumspection when punishing crimes that are difficult to prove, such as crimes of magic or those “against nature.” Other crimes, like treason, need extremely clear definition lest the society degenerate into despotism.

He also stands against punishment for thought or private action: “Laws,” he writes, “are charged with punishing only external actions” (197). He also defends the freedom of speech, writing that “[s]peech becomes criminal only when it prepares, when it accompanies, or when it follows a criminal act” (199). He quickly dispenses myriad other opinions on slander, conspiracy, debt, courtly conduct, and spies.

Book 13, the final section of Part 2, addresses taxation, which is necessary to ensure citizens’ security. According to Montesquieu, nothing requires more prudence and wisdom than determining appropriate taxation, as “one must not take from the real needs of the people for the imaginary needs of the state” (213). The state must tax only what is necessary, and those taxes must go toward the good of the state. Tax rates should be inversely proportionate to the size of the state. Therefore, despotic states, which are usually large, should have light taxes. Montesquieu recommends taxes on commodities, especially taxes that the seller pays and subsequently bakes into the price, because this provides an illusion of limited taxation for the purchaser. He ends by criticizing “tax-farming,” in which tax collectors keep a portion of their collections.