The Spirit of Laws

The treatise receives its title from one of Montesquieu’s central concepts: the spirit of the laws. Though Montesquieu never defines “spirit,” he opens Book 1 with a definition of “law.” He writes, “laws, taken in the broadest meaning, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws” (3). Laws are simply how things must interact with one another. The prescribed action, though, can vary. For instance, laws of nature are always applied in all physical circumstances. The positive laws of men, on the contrary, should be applied in all circumstances. This by no means necessitates that they are in fact applied as they should be.

The nature of law relates to the nature of two different kinds of “worlds,” which Montesquieu delineates as the physical world and the intelligible world. Whereas God is only of the intelligible world and the beasts are only of the physical world, human beings inhabit both worlds. As such, the humanmade positive law should mediate between these two poles. Montesquieu writes, “There is, then, a primitive reason; and laws are both the relations that exist between it and the different beings, and the relations of these various beings to each other” (3). In typical Enlightenment-era fashion, Montesquieu assumes a natural order and reason invested in the nature of things, i.e., a “primitive reason.” The laws of both the physical and the intelligible worlds reflect this reason. Human institutions should strive to understand the fundamental rationality of reality and to create laws that accord with natural reason. The relative naturalness (or unnaturalness) of human laws is consistently evaluated throughout the treatise.

When the laws of any given society are taken as a whole, they give rise to a particular spirit: “This spirit consists in the various relations that laws may have with various things” (9). The variety of “things” with which the laws must interact is highly dependent on the particular circumstances of any given country: its established political system (especially its ideal form of government), the climate, geography, religion, history, and culture. From this melting pot of influences, the laws receive their ultimate meaning and “spirit.” Though there are only three ideal kinds of government, the spirit of the laws will be highly unique to each society and political situation. Good laws are, by definition, attuned to the spirit of the law and the “general spirit” of the people.

Montesquieu’s project, as the title announces, is an evaluation and elucidation of the spirit of the laws. Though he occasionally goes into depth about the spirit of a particular society, like the Medieval Germanic tribes of Gaul, his ultimate purpose to show that this spirit is a guiding principle in all societies. Wise governance requires understanding and honor of this spirit.

Some of Montesquieu’s most influential work is housed in Book 11 of Part 1, “On the laws that form political liberty in its relation with the constitution.” Though there are varied issues within this book, it is Montesquieu’s concept of the tripartite division of government that had a lasting impact, especially in the American political system as constructed by Thomas Jefferson, James Madison, and others.

In a chapter lauding the English constitution, Montesquieu lists the three fundamental powers of government: “legislative power, executive power depending on the right of nations, and executive power over the things depending on civil rights,” the last of which he also calls “the power of judging” (156-57). In the American political system, these powers correspond to the legislative, executive, and judicial branches of government.

A moderate government, concerned with citizens’ political liberty, ought to distinguish and circumscribe these powers to three different authorities, or branches of government. However, it is important to note that not all governments are moderate or concerned with political liberty, and this separation of powers does not apply to such governments. Moderate governments ought to pursue political liberty, that is, the citizens’ freedom to act virtuously. Montesquieu writes true liberty differs from the idea that liberty is the freedom to do what one wants; it is, instead, the freedom to be virtuous. As such, political liberty is the business of republics, and so republics should strive for moderate governments that limit the power of particular groups or individuals. Montesquieu writes that moderation, and hence political liberty,

is present only when power is not abused. It has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits. Who would think it! Even virtue has need of limits. So that one cannot abuse power, power must check power by the arrangement of things (155).

In order to arrange things appropriately, power must be divided. Montesquieu, in admiration of the constitutional monarchy in England, goes on to describe this separation of powers by advocating for what we would now term a system of checks and balances. The various powers of government should extend no further than the limits circumscribed to them by the constitution, and the extent of this power is balanced by the power of the other branches of government. The power of one branch can be checked by another, as well. For instance, the executive power cannot take part in the creation of new law; this power belongs to the legislature. However, the executive branch should have the power of limiting the power of the legislature through the power of the veto, which Montesquieu calls “the right to render null a resolution taken by another” (161). The judiciary, which has executive power over civil disputes, should have its power checked by the law written by the legislature. Montesquieu writes, “The judges of the nation are, as we have said, only the mouth that pronounces the words of the law” (163). Their power is, then, strictly limited to interpretation of law, not alteration or creation.

The separation of powers intends to institute a moderate government and hence the political liberty, or opportunity for virtue, of the citizenry. As such, it is not a model for governments that are unconcerned with virtue. Montesquieu is, though, very well disposed toward republics. The Romans, the Athenians, and the British are amongst his favorite examples of well legislated societies. Each, to a degree, formed a moderate, republican government through the separation of powers. For Montesquieu, the constitutional monarchy in modern England best fits the bill. Colonial politicians and American revolutionaries were explicitly influenced by Montesquieu’s theory.