Archive for September 9th, 2011

Montesquieu’s Influence on the Constitution

The Baron de Montesquieu and his influence upon the US Constitution

Charles-Louis de Secondat, the Baron de Montesquieu, was born in 1689 near the region of Bordeaux, France to a noble family, and he received an education in the law in Paris before his father’s death caused his return to Bordeaux. There, in addition to administering his family’s estates, he served in the Parlement of Bordeaux, working as a judge and overseeing the criminal justice concerns for the region. He was also interested in science, and was a member of the Academy of Bordeaux. In 1721 his literary career began with his (anonymous) publication of The Persian Letters, a novel that used the story of the European travels of two men from Persia to satirize European institutions (such as the papacy) as well as to comment upon politics and the philosophy of government. The book combined humor and philosophy in a way that was immensely popular.

As a result of his literary interests, he began to spend more time in cosmopolitan Paris, and eventually he resigned his offices in Bordeaux to travel about Europe himself. He even spent some time in England, where he was interested in the political system and spent some time studying it.

In 1731 Montesquieu returned to France, and began work on what is widely considered to be his masterpiece, The Spirit of the Laws. This book was also influenced by another book he wrote in the interim, entitled Considerations on the Causes of the Greatness of the Romans and of their Decline, which points out the theme we have discussed in class about the influence of classical Greek and Roman thought upon the political philosophy of the time. The Spirit of the Laws was finally published in 1748. It was widely praised and criticized: he had to publish another book Defense of the Spirit of the Laws in 1750, and the Roman Catholic Church placed The Spirit of the Laws upon its Index of Forbidden Books in 1751.

Key ideas in The Spirit of the Laws center around how social institutions and manmade laws influence each other. The Stanford Encyclopedia of Philosophy states it thus:

…the key to understanding different laws and social systems is to recognize that they should be adapted to a variety of different factors, and cannot be properly understood unless one considers them in this light. Specifically, laws should be adapted “to the people for whom they are framed…, to the nature and principle of each government, … to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered” (SL 1.3). When we consider legal and social systems in relation to these various factors, Montesquieu believes, we will find that many laws and institutions that had seemed puzzling or even perverse are in fact quite comprehensible.

Montesquieu also discusses three types of government: republics (either democratic or aristocratic), monarchies, and despotisms. Democratic republics place the people as the sovereigns. The people may choose representatives of ministers, but ultimately they hold the power in this form of government. Democratic republics have to function based upon political virtue, by which Montesquieu means “the love of the laws and of our country”—not a feeling that comes naturally but one which must be cultivated and involves abandoning one’s self-interest, which he described as “arduous” and “painful.” Democracies are difficult to maintain because they can go to extremes: a “spirit of inequality” in which people become self-centered or a “spirit of extreme equality” where people refuse to obey magistrates or other elected holders of power. An aristocratic republic, in which a small group rules the rest, works only if the aristocracy or oligarchy minimize laws discriminating against those not in the ruling group.

The most obvious influence of Montesquieu’s thought was in designating three branches of government (Again, quoting the Stanford Encyclopedia of Philosophy):

If it is to provide its citizens with the greatest possible liberty, a government must have certain features. First, since “constant experience shows us that every man invested with power is apt to abuse it … it is necessary from the very nature of things that power should be a check to power” (SL 11.4). This is achieved through the separation of the executive, legislative, and judicial powers of government. If different persons or bodies exercise these powers, then each can check the others if they try to abuse their powers. But if one person or body holds several or all of these powers, then nothing prevents that person or body from acting tyrannically; and the people will have no confidence in their own security.

Certain arrangements make it easier for the three powers to check one another. Montesquieu argues that the legislative power alone should have the power to tax, since it can then deprive the executive of funding if the latter attempts to impose its will arbitrarily. Likewise, the executive power should have the right to veto acts of the legislature, and the legislature should be composed of two houses, each of which can prevent acts of the other from becoming law. The judiciary should be independent of both the legislature and the executive, and should restrict itself to applying the laws to particular cases in a fixed and consistent manner, so that “the judicial power, so terrible to mankind, … becomes, as it were, invisible”, and people “fear the office, but not the magistrate” (SL 11.6).

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