The Spirit of Laws

The final part of The Spirit of the Laws is dedicated to two studies in the history of law. Book 27 is entitled the “origin and revolutions of the Roman laws on inheritance,” while Books 28-31 (except Book 29) extensively discuss Frankish feudal laws and the creation of civil laws amongst the French. In Book 27, Montesquieu’s discussion of Roman inheritance includes a historical account of various missteps and corrections in inheritance law, the right of testaments, trusts, etc. Book 28 includes a genealogical account of “the origin and revolutions of the civil laws among the French” (532). He compares and contrasts the laws of various Germanic peoples (like the Merovingians, the Carolingians, the Visigoths, and so forth). These Germanic laws were in legal dialogue with Roman law after the fall of the Roman empire. Montesquieu extensively examines the minutiae of laws regarding trial by combat. These books do not serve to further articulate the thematic core of The Spirit of the Laws but should be viewed, instead, as case studies in legal history and comparative law.

Book 29 does not fit this mold. It stands out in Part 6 as a crowning moment of Montesquieu’s treatise, at least insofar as it provides a series of conclusions “on the way to compose the law” (the title of Book 29). This builds off of the supreme law articulated in Book 26 of Part 5, i.e., that the well-being of the people is paramount. Book 29 begins with its own guiding principle, which should be seen as best serving the well-being of the people. Montesquieu writes, “the spirit of moderation should be that of the legislator; the political good, like the moral good, is always found between two limits” (602). Political virtue serves the spirit of moderation. Additionally, Montesquieu believes that laws cannot be separated from their context. He has not, then, written the Spirit of the Laws to survey the best laws in history and supplicate for their application in France. Instead, he seeks to show how various laws interacted with the other conditions of the society in which they were enacted. Context matters. The “spirit of the laws” is well-served when governance understands the various contextual influences and knows how to navigate them. Despite this, there are some general rules Montesquieu has abstracted from his study: Laws should be clear and simple; judges should not act arbitrarily but should stick to the letter of the law as much as possible; laws should not enforce behavior contrary to nature.

The Spirit of the Laws could have ended quite elegantly with these general remarks on the dispensation of the law. Instead, Montesquieu continues for two more books (Book 30-31) on the feudal law of the Franks and Germanic peoples, which picks up his discussion from Book 28. Though these Books mostly resemble appendixes, they contain some notable material. The purpose of studying the feudal laws is to better understand French history by understanding that out of which modern France emerged: “It is impossible,” he writes, “to inquire further into our political right if one does not know perfectly the laws and the mores of the German peoples” (646). The “labyrinth” of feudal law, Montesquieu writes in Book 30, is an ocean that “lacks even shores” (629). Amidst all this dated law, he struggles to find a “general spirit,” even begging the reader to forgive him for the “deadly boredom” of his citations on taxation, censuses, fiefs, etc. Book 31 includes historical accounts of the reigns of Germanic kings (Montesquieu praises Charlemagne above others). He discusses the tension in relationships between kings, mayors, clergymen, serfs, and nobles. The institution of the tithe, a major source of clerical power in France until the French Revolution two generations after Montesquieu wrote The Spirit of the Laws, receives a genealogical account. The final books of Part 6 are written for Montesquieu’s contemporary French audience who may be interested in the historical foundations of their monarchy.