From the spirit of the laws

Marcelo Guimarães Lima, Horizonte, digital engraving, 2021
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By THIAGO VARGAS*

Presentation of Montesquieu's newly edited book

With sections conceived during the intense Parisian social life and others in periods of laborious engagements in Bordeaux, the spirit of laws (1748) was fundamentally written in the bucolic calm of La Brède. Between rural care and the management of his property, Montesquieu also found the necessary tranquility to enjoy his library, gather materials, read his sources and, finally, dedicate himself to preparing the book that would make him be remembered by posterity.

More than two decades before the launch of his great work, Montesquieu already had the opportunity to experience a relative literary recognition. At the age of 32, he publishes the resounding blockbuster Persian letters (1721), an epistolary novel in which two Persians traveling in France record their observations of Western customs. In this classic of philosophical literature we already find the relativist perspective later developed by spirit of laws.

Although the Persian letters Although they were published anonymously, a considerable part of the French intellectual circle, especially the members of the Academy of Bordeaux (to which Montesquieu had been admitted in 1716), knew of the true authorship of the publication. Buoyed by the success of his book, Montesquieu then began to have greater pretensions and began to make regular visits to Paris, frequenting the salons of literate society.

He then dedicated himself to writing dissertations and essays on various topics and, at the end of that decade, lived for a year in Paris (1727), transiting through Austria and later spending time in Italy (1728-1729) and England ( 1729-1731). His impressions were reported in travel diaries, in which we read observations about culture, religion, politics, history, economy, descriptions of personalities with whom he met, among others. In May 1731, when he returned to France, remarkably inspired after his travels and encouraged by his friends, Montesquieu decided to settle down in La Brède to write his great work.

Between 1734 and 1735, he begins to carry out the writing project of the spirit of laws, although the idea of ​​publishing a treatise containing reflections on the most varied fields of knowledge was much older and the result of a long intellectual maturation. The author himself reveals his ambition in a letter dated March 1749, in which he reflects on his recently launched book: “I can say that I worked on it my whole life. When I finished school, law books were placed in my hands: I sought their spirit, I worked, but I didn't do anything worthwhile. Twenty years ago I discovered my principles: they are very simple. Someone else who had worked as hard as I would have done better. I confess, however, that this work thought about killing me”.

A similar account would initially be inserted in the very preface of the spirit of laws, as we read in an excerpt from My Thoughts: "I spent twenty years of my life in this work, and I was far from having devoted enough time to it" (MP, n. 1924). Dedicating a good part of his days to writing his book and with the worsening of his eyesight problems from 1747 onwards (which made him increasingly dependent on the help of secretaries to carry out his tasks as a writer), it was not without reason that Montesquieu found He was pleased to have completed his project: he said he felt relieved and happy like a young man who had just left school.

Aiming to escape censorship, especially for addressing issues related to religion and politics, Montesquieu sent the text to be printed in Geneva, Switzerland, without his name initially appearing on the manuscript. Such a plan of discretion would not last long: after all, everyone knew who the author was who prepared an extensive work involving historical and jurisprudential analyzes – or, as he himself defined it, did the work of a “historian and jurist” and wrote a “book of Right". In addition to a certain difficulty in dealing with the manuscripts (because many times, as indicated, these were redacted or recopied by his secretaries), throughout the printing Montesquieu would still send several corrections and additions, causing the first edition to be amended with the so-called boxes, that is, pages added and pasted after final printing. Editor Jacob Vernet, having already dealt with the first proofs, is responsible for carrying out the final revisions and corrections, in addition to suggesting the long subtitle of the book.

O spirit of laws it was then launched in 1748, and was warmly received: the copies quickly sold out and pirated copies began to circulate in bookstores, causing a new edition to be printed in Paris. However, the resounding success was immediately followed by criticism.

The work enters the Index in 1751 and later, several of its passages were censored by the Sorbonne. In addition, the book becomes the target of objections from the Jesuits of the Journal de Trevoux and virulent attacks by the Jansenists of the Nouvelles Ecclesiastiques, who accused him of promoting atheism, Spinozism, and of being a “sectarian of natural religion”. The onslaught makes the philosopher take up the pen again to elaborate the Defender of the Spirit of the Laws, 1750, written in the third person and published anonymously. In 1752, a collection entitled Pieces for and against of the Spirit of the Laws, in which the text appears Clarifications about the Spirit of the Laws, also written by Montesquieu.

On February 10, 1755, after an acute feverish attack and the rapid worsening of his health, Montesquieu died in Paris. In 1757 a posthumous edition of the spirit of laws with all corrections and additions indicated by the author. This last version, considered the closest to Montesquieu's designs, served as the basis for the present translation. In addition, both cited defense pieces accompany this volume by Unesp.

On more than one occasion Montesquieu tells that, despite being laborious, the process of carrying out the spirit of laws it was still pleasurable and provided moments of contentment. From his entry into the respected Collège de Juilly (1700-1705), to continuing his training at the Faculty of Law at the University of Bordeaux (1705-1708), followed by a period of study in Paris (1709-1713), Baron de La Brède had always found pleasure in reading classics in philosophy, history, law, science, and in analyzing Roman and French jurisprudence.

His admirable intellectual vigor, whose greatness was perhaps only proportional to his curiosity for the most diverse subjects, is reflected in the extensive number of subjects addressed in the work: the different methods of building ships and the various forms of navigation; geographic, hydrographic and climatic analyses; reflections on the history of trade, currency, criticism of mercantilism; the meticulous and erudite examination of Roman law and its incorporation and transformation by barbarian peoples; research on legal institutes related to contracts, marriages, successions, penalties and crimes; resorting to scientific treatises of his time, especially medicine; reading classical Latin and Greek texts such as Cicero, Plutarch, Plato, Aristotle; the use of the most varied philosophical, political, moral works. Montesquieu revealed that he was fully aware of the dimension of his work: “this work has as its object the laws, customs and different uses of all the peoples of the Earth. Its subject may be said to be vast, for it embraces all institutions received among men,” as he writes in the Defender.

His way of looking at studies and his awareness of the uniqueness of his undertaking have been manifested since at least 1741, years before the publication of the spirit of laws, a period in which his writing work intensified. Writing to Jean Barbot, one of his friends at the Academy of Bordeaux, Montesquieu makes the following confession: “concerning my Laws, I work on them eight hours a day. The work is immense [...]. I can't wait to show it to you. I am extremely excited about her: I am my first admirer, I wonder if I will be the last”.

History did not take long to provide an answer to this question: since the launch of spirit of laws, the list of readers and admirers of Montesquieu never stopped growing. D'Alembert, in the entry Praise for Mr. President of Montesquieu (inserted as an introduction to volume 5 of the Encyclopedia), attributes to him the dignity of benefactor of humanity and praises him as a fundamental inspiration for the encyclopedic enterprise. Diderot and Jaucourt make extensive use of passages from the Spirit of the Laws in their entries for the Encyclopedia; moreover, at the request of the editors themselves, Montesquieu even contributed with part of the entry “I like (Gout)”, published posthumously.

Voltaire recognizes him as one of those responsible for rescuing the titles of the human race. Even theoretical opponents with antagonistic views on economic issues, such as the fervent physiocrat Du Pont de Nemours, as opposed to the defender of the “trade system” Véron de Forbonnais, are in agreement on the philosophical framework brought about by the book published in 1748 The importance of analyzing criminal law and reflections on the proportion of penalties imposed in the spirit of the laws had a decisive influence on Cesare Beccaria. What then to say of Rousseau, probably the most famous – and perhaps one of the most rebellious – of Montesquieu's disciples? From the Discourse on Inequality to Thoughts on the Government of Poland, passing by Contract and by Emilio, Rousseau is confessedly a debtor and continuator of the paths opened by the spirit of laws, a work that he filed, read and reread in detail since the year it was released.

Crossing the English Channel, the spirit of laws was equally well received. David Hume praises the “genius and erudite” Montesquieu, responsible for establishing a “system of political science that is full of brilliant and ingenious ideas”. The ideas contained above all in the Fourth Part were central to the political and economic thinking characteristic of the British Enlightenment, and the book received successive editions in the English language from 1750, the year in which it was published in Edinburgh. John Millar, writing about the course “History of civil society”, taught by Adam Smith, his professor at the University of Glasgow, makes a famous statement: “the great Montesquieu pointed the way. He was Lord Bacon in that branch of philosophy. The Doctor. Smith is Newton.”

We might also recall Montesquieu's prestige among British historians such as William Robertson. Furthermore, as assessed by Richard Sher, the authors of the Scottish Enlightenment “recognized the importance of Montesquieu in defining important problems of political economy”. In short, it is for these and other reasons that, according to Donald Winch, “there can be no doubt about the persuasive influence of the spirit of laws in all serious political speculation during the second half of the eighteenth century” and, he continues, “this was as true of Scottish writers concerned with civil society as it was of writers on the American republic, for whom Montesquieu's work remained a kind of handbook of alternative forms of politics”.

If we sail towards the other side of the Atlantic we will see the spirit of laws position itself as a decisive influence in the North American context. The reflections that the book makes on the confederative model and on the balance between powers were of paramount importance for the formulation of the constitution of the United States and for North American politicians such as James Madison.

“In saying all this, I do not justify the usages, but give reasons for them” (XVI, 4). If this statement by Montesquieu was, during the French Revolution, seen as a vice of excessive normativity and the target of criticism by authors such as Condorcet, already in the XNUMXth century this detachment was praised as a virtue, especially when Auguste Comte, in his positive philosophy course, highlights the pioneering sociological thinking of the spirit of laws, or when Émile Durkheim attributes to Montesquieu the title of “precursor of sociology”. Let us also not forget that Alexis de Tocqueville, with his work Of Democracy in America, fits in the wake of Montesquieu's epigones.

Going into the XNUMXth century, authors as different as Hannah Arendt and Louis Althusser extensively studied the ideas of Baron de la Brède. Likewise, in contemporary times, Montesquieu was either linked to liberalism, as argued by Isaiah Berlin or Raymond Aron, or inserted in the ranks of republicanism, as argued by Judith Shklar.

It is convenient to leave the labels aside to confirm a fact: since 1748, the extensive list of male and female readers of the spirit of laws never stopped increasing. Moderns and contemporaries tried to situate their thought from it, seeking, each in their own way, to claim themselves as intellectual heirs of Montesquieu. Passing through the sieve of time, being incessantly incorporated, read and debated, his work continues to be an inexhaustible source of interpretations. There is no doubt that the ideas contained in this book continue to be inspiring and represent just some of the relevant reasons for the work's relevance.

History, plurality, freedom and moderation: the system of spirit of laws

Among the various aspects that make the spirit of laws a seminal work, we can highlight three points that make up the core of his system and that can serve as guidelines for its reading: first, the emphasis on the historical-legal approach to politics; second, the refusal of universalism, favoring a perspective of plurality and convenience; third, an apology for political freedom associated with a defense of the principle of moderation.

As for the first point, it is appropriate initially to remember that, in the seventeenth century, the method of political philosophy had mathematics as one of its main paradigms, with the establishment of definitions relying mainly on geometry and arithmetic. In this period of modernity, which extends until the middle of the XNUMXth century, a good number of authors, especially from Hobbes onwards, begin to dedicate themselves to discovering the origins of the State, striving to find an abstract model or ideal of governing society to from which it would be possible to deduce universally applicable principles: from this derives, for example, the focus on the conjectural hypothesis called “state of nature”.

While history is evidently not excluded from this calculation, there is a primacy accorded to the establishment of general propositions whose validity would be independent of the particular circumstances to which they might be applied; or else, if we want to formulate the question in another way, the examination of the diversity of historical experiences and the multiplicity of positive law is relegated to the background.

Montesquieu's work represents a rupture with this way of proceeding: in parallel with the scientific experiments and studies related to climatic-geographical conditions presented in the Third Part, throughout the entire book a comparative appreciation of the innumerable customs, uses, manners and laws of existing societies, seeking the relationship between cause and effect that produce certain results in the field of legislation.

For this, Montesquieu makes a return to the doctrine of the historians of Antiquity, making extensive use of Dionysius of Halicarnassus, Dio Cassius, Livy, Suetonius, Tacitus and a myriad of other authors, without neglecting to take into account the writings of Jean Chardin, François Bernier, George Anson and other travel accounts made possible by the European maritime expansion driven since the Renaissance. Thus, a first notable feature of the spirit of laws concerns its methodological treatment, in which historical analysis, with special importance given to the history of law, regains its dignity in the field of political reflection.

After all, as the author writes, “it is necessary to clarify history through laws and laws through history” (XXXI, 2). The centrality assumed by historical and jurisprudential records, already present since at least the publication of Considerations on the causes of the greatness of the Romans and of their decadence (1734), finds its culmination in the erudite study of feudalism presented in the Sixth Part of spirit of laws. Seeking to retrace the history of the establishment of the monarchy and the evolution of French law, placing itself in a middle ground between the dispute between the “Germanists” (current according to which the Franks had conquered Gaul) and the “Romanists” (who defended that the Franks intervened in Gaul under the command of the Romans), Montesquieu draws heavily on historians such as the abbot Jean-Baptiste Dubos, Henri de Boulainvilliers, Gregory of Tours, and also on legal documents, such as the compilations of Justinian, the capitulars, the Salic, Visigothic, Lombard, German and Saxon laws.

This primacy granted to history results in a refusal of the uniformity operated by the doctrines of natural law, that is, a rejection both of political centralization based on the notion of sovereignty and of the universalism represented by political prescriptions to be applied without distinction to any and all nations. Thus, and moving on to a second point, Montesquieu does not seek to propose a model of society based on hypotheses or the deduction of abstract, moral or anthropological principles capable of revealing the “true” human essence.

In fact, he chooses to emphasize the importance of the plurality of historical experiences, continually enriched by the diversity of customs, cultures and legislation, only then discovering the threads that bind these various relationships. In this sense, Céline Spector uses the expression “philosophy of stories” to classify this aspect of Montesquieu's thought, highlighting the novelty thus brought: “such is the founding originality of the work: there is a legality of the human world, underlying the laws and institutions (government, morals, economics, religion). The strangest customs […] are included in the field of political intelligibility and history”.

This relativism that attacks some precepts of modern philosophy does not lead, however, to a radical skeptical position, in which all judgment is suspended: after all, the spirit of laws starts from an assessment of the seemingly disorderly multiplicity of the world only to discover the hidden regularities that govern historical experiences. With that, aiming to instruct legislators to collaborate with the enlightenment of the people, Montesquieu establishes his principles, making the political laws of each country come to be seen as the expression of human reason applied to certain concrete cases, as we read in the following passage: “I began by examining men and I considered that, in this infinite diversity of laws and customs, they were not driven solely by their extravagances. I laid down the principles, and watched particular cases conform to them as if by themselves, the histories of all nations succeed one another only as their consequences, and each particular law either attach to another law, or depend on a more general one.” . (Preface)

This relativist posture paves the way for the emergence of two singular reflections exposed in the spirit of laws, both based on what we can call the perspective of convenience: the first concerns an unprecedented typology of governments, and the second, the communicating vessels established between the economy and politics.

Regarding the classification of government regimes, in the introductory chapters we read that political and civil laws must be studied in all their relationships – climate, geography, customs, religion, among others – and that the book will seek to consider them in all these correspondences. . It is precisely the result of the joint examination of these relations that Montesquieu calls the “spirit of the laws”.

Then, by continuing to analyze them in light of the principle that constitutes each government, the philosopher proposes an original typology by categorizing them into three types: (i) the republican, moved by virtue and being “the one in which the people in body, or only a part of the people has sovereign power”, which can be democratic (sovereign power comes from the body of the people) or aristocratic (power comes from a part of the people); (ii) the monarchic, driven by the passion of honor, in which only one rules, “but by fixed and established laws”; (iii) the despotic, whose principle is the passion of fear, in which “one, without law and without rule, conducts everything by his will and by his whims” (I, 2).

With the exception of despotism, judged as inherently vicious, the classic question about the best form of government is relativized in favor of a reflection on the conditions for the exercise of political freedom, or, as indicated in My thoughts, “a free people is not one that has this or that form of government” (MP, n.884).

As for economic reflections, Montesquieu was not only closely acquainted with the ideas of William Petty or John Law (whose system is harshly criticized both in the Persian letters and in the Spirit of the Laws), but also noted the growing importance accorded to typical objects of political economy, such as money, currency, commerce, interest, manufacture, agriculture, population, etc. Furthermore, he was an avowed reader of the fable of the bees (1714), by Bernard de Mandeville, and the Political essay on trade (1734), by Jean-François Melon, important works for the debates on taxes, conspicuous consumption and inequality (concentrated on the so-called “quarrel of luxury”) that later culminate in the analyzes of David Hume and Adam Smith.

We must first bear in mind that the spirit of laws is published in a period prior to the consolidation of political economy, whose main milestones occur between 1760 and 1770, first with François Quesnay and the physiocratic school, and then with Adam Smith and his wealth of nations (1776). However, if we consider that throughout the eighteenth century philosophy and economics they never really ceased to be separate disciplines and if we take into account that a large part of the principles of modern economic discourses were previously developed by modern moral and political philosophy, the spirit of laws offers and anticipates some fundamental reflections that would later be used and reformulated by the history of economic thought.

To take just one example, let's examine what is conventionally called the theory of “doux commerce”, the mildness of commerce, based on Chapter I of Book XX: “Commerce cures destructive prejudices, and it is almost a general rule that, wherever there are mild customs, there is commerce; and that wherever there is trade, there are mild customs.” From this observation, Montesquieu analyzes several elements capable of contributing to the spread of tolerance caused by trade, such as the progressive deterritorialization of wealth, that is, the mobility of property and the typical nomadism of merchants, who needed to move with a certain regularity and take their money and goods with them: thus, the itinerant nature of business brings merchants into constant contact with different peoples and customs, and, accustomed to this repeated comparison between cultures, a spirit of compromise and of compromise is produced in them. peace.

In addition, the defense of a civilizing attribute of trade is opposed to the theorists of reason of state accustomed to mercantilism, who considered commercial exchanges not as a means to replace war, but, on the contrary, as a weapon to be used in the context of of rivalry between nations and as a means of ensuring the conservation of the state to the detriment of others. Against this perspective of a zero-sum game, Montesquieu maintains that the spirit of commerce has the characteristic of substituting the violence of wars for the practice of exchanges, being able to cool down the belligerence between nations and mutually benefit two countries that trade their products. So the spirit of laws is one of the main promoters of the idea according to which commercial practice slows down bellicose practices, stimulates the spirit of industry and work and makes nations more polite, an argument that will become present in countless texts on political economy from the second half of the XNUMXth century .

A third and final aspect that deserves to be highlighted is the articulation between the two guiding objectives of the spirit of laws: a defense of freedom and an apology for the spirit of moderation.

Regarding freedom, Montesquieu rejects the negative meaning attributed to this notion, that is, he does not identify it as the absence of obstacles or as the permission to do everything that the laws do not prohibit. At the spirit of laws it is defined above all as the right to do what the laws allow (XI, 3) and to act within the limits established by them. In this case, laws are the main instrument capable of guaranteeing the exercise of political freedom. However, there is a precondition and essential that allows its flourishing. This is the spirit of moderation, understood as a mechanism for balancing powers and one of the fundamental objectives of the spirit of laws, only announced at the end of the work: “I affirm it and it seems to me that I did this work only to prove it: the legislator must be endowed with the spirit of moderation; the political good, like the moral good, is always found between two extremes” (XXIX, 1).

Its relation to political liberty is thus presented in Book XI, Chapter 4: “Political liberty is found only in moderate governments. But it is not always present in moderate states: it only appears there when power is not abused. Yet eternal experience shows that every man who has power is led to abuse it, and continues to do so until he finds limits. Who would say: virtue itself needs limits! So that power cannot be abused, it is necessary that, by the arrangement of things, power restrain power. A constitution may be such that no one will be constrained to do those things which the law does not oblige him to do, and not to do those which the law permits him to do”. (XI, 4)

Famous and appropriated in the most diverse ways, the idea that only one power is capable of containing another power is one of the most original and famous formulations of the spirit of laws. Unlike the theorists of mercantilism and reason of State, who emphasize international “envy” between nations and concentrate authority in the figure of the sovereign, Montesquieu finds a principle of stability internal to power itself, whose total sum can be increased through its limitation: when ordered and moderated, power tends to be, if not more effective, at least more conducive to freedom.

However, this formulation is much broader than what is generally attributed to the “separation of powers theory”, since it is not reduced only to the checks and balances between the Executive, the Legislative and the Judiciary, nor does it refer only to institutional counterpowers: it also deals with the relationship between States and the forms of distribution of power within a society, covering all the fields of force that permeate it, be they social, economic or political. It is also in this context that the notion of intermediate bodies acquires its importance throughout the spirit of laws, that is, here we are dealing with social strata (such as the nobility in the monarchy), corporations, civil society groups, parliaments, in short, the sets or groups that act as intermediaries between individuals and the government. Thus, the intermediary bodies act as true moderating instances, capable of balancing the political-economic game of forces and curbing the abuse of power.

Therefore, the guarantee of the exercise of political freedom depends on a rare mixture composed of a solid body of legislation, good political institutions, a moderate government, organized intermediary bodies and respect for the tranquility, security and property of individuals: “To form a moderate government, it is necessary to combine the powers, regulate them, make them moderate, make them act; to give, so to speak, ballast to one to put it in a position to resist the other. It is a masterpiece of legislation seldom produced by chance, and which prudence is seldom allowed to produce.” (V, 14)

In modernity, England was an example that demonstrated to combine such characteristics. In this sense, Montesquieu's stay in that country represents a turning point, and the reflections he drew from his experience make up the famous analysis of the English constitution developed in Chapter 6 of Book IX of the spirit of laws. “At present,” he writes in his travel notes, “England is the freest country in the world, and I exclude no republic from this assessment. I call it free because the prince has no power to do any imaginable harm to anyone, for the reason that his power is controlled and limited by an act. However, if the lower house became dominant, its power would be unlimited and powerful, because it would also have executive power”.

The immersion in the effervescent English society of the eighteenth century – marked by heated public discussions, satirical writings, innovative moral-economic thinking and a flourishing civil society – not only provided a reconsideration of the question of the best form of government, as expressed in Part One of the Spirit of the Laws. His contact with the English system, in which the king who has executive power is restrained by Parliament (the House of Lords and the House of Commons), which has the legislature, opposing their forces in order to generate a kind of balance, left , above all, an indelible mark on his thought: in the face of the existing diversities between monarchies, aristocracies and democracies, Montesquieu divides governments into moderate and immoderate, opting for the former and emphasizing his system of checks and balances that pass from since then to constitute fundamental elements of his political science.

The vast number of subjects addressed and the erudition of the spirit of laws they are easily discovered by simply flipping through the pages and can be disconcerting on first reading. Aiming to make the references accessible to readers, seeking to provide the maximum intelligibility of the text and following the practice of good international editions, the notes of this translation seek to offer a critical apparatus in which information and explanations can be found about the cited works and passages. ; about historical events, names of literary, political, military, historical, legal personalities; about the widely used institutes of law; and on the use of certain philosophical concepts.

In addition, the notes contain translations of excerpts from My thoughts and scrapbook, fundamental notebooks to clarify certain passages and which constitute a good part of the information collected and the studies carried out for the composition of the spirit of laws. Finally, this volume also has an index of names and a chronology of the three dynasties of French kings.[1]

*Thiago Vargas is a postdoctoral researcher at the Department of Philosophy at the University of São Paulo (USP).

Reference


Montesquieu. From the spirit of the laws. Translation: Thiago Vargas and Ciro Lourenço. Technical review: Thomaz Kawauche. São Paulo, 2023, 922 pages

Note


[1] This translation was only possible with the support of several people. Special thanks to Ciro Lourenço, partner in this and other works; to Pedro Paulo Pimenta, for encouraging this translation; to the employees of Editora Unesp, for their editorial work; to Thomaz Kawauche, for his careful revision and fruitful conversations about the text; to Maria das Graças de Souza, for the dialogues on modern political philosophy; to Bárbara Villaça, for reading the text and for her support throughout these years of work.


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