MONTESQUIEU: Principles of Government (1: Law)

After reading the Iliad we’ve seen what happens when law and order break down. Anger and war are the results. The reader comes away with the feeling that there must be a better way to live than this. Here’s where Montesquieu steps in and helps guide us toward a solution. Americans have 250 years of practical experience living better under laws shaped by the United States Constitution. James Madison knew it wouldn’t be easy to convince people that life would be better living under laws that constrain them. In Federalist #15 he wrote: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint.” This isn’t a pessimistic view of mankind, just an honest appraisal of human nature. He goes on to ask in Federalist #51: “What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.” But government is necessary. Since we’re not angels, government is very necessary. The question then becomes: what kind of government?

Montesquieu begins his analysis of government by first examining the concept of law. In its simplest form laws are “the necessary relations arising from the nature of things.” Montesquieu believes that “all beings have their laws.” God, the material world, angels, beasts and men all have laws to guide and govern them. He agrees with Madison that “the dictates of reason and justice” are the backbone of law. In short, law guides all rational life. Montesquieu believes reason and justice guide the world. But Darwin believes natural selection is a better explanation. For Montesquieu the idea of natural selection is just “blind fatality.” He thinks this notion is absurd and says, “they who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can anything be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings?” Darwin says it’s perfectly reasonable for nature to produce intelligent beings because nature has its own laws.

Montesquieu agrees there are two kinds of laws: “intelligent beings may have laws of their own making, but they have some likewise which they never made.” The first kind (laws that we make ourselves) are Positive Laws. The second (laws we don’t make ourselves) are Natural Laws. A Positive Law is: thou shalt not kill. A Natural Law is: gravity. Montesquieu recognizes that man-made laws aren’t as perfect as the laws we find in nature. He acknowledges that “the intelligent world is far from being so well-governed as the physical.” That’s because people are fallible and make mistakes. In Sophocles’ story about Oedipus, for example, we read about a man who married a woman without knowing it was his own mother. That was an accident. But sometimes we do wrong because we’re “free agents.” We break the law even when we know it’s wrong. Cain killed his brother Abel. This was before the Ten Commandments but Cain still knew somehow that murder was wrong. So Montesquieu makes an important distinction between natural laws and man-made laws. Natural laws are impulses that we’re born with. We “naturally” want peace and safety, good food, and maybe a good sex partner. To achieve these goals we generally want to live in a society where we can interact freely with other people. Positive laws are the ones that guide us once we’re living in a free society. There are laws that apply between one society and another society; these Montesquieu calls the Law of Nations. There are laws which apply between a citizen and his government; these are Political Laws. And then there are laws that apply between one citizen and another citizen; these are our Civil Laws. We need laws because, as Madison said, we’re not angels. We need government then; but what kind? Next reading Montesquieu will give us three choices.