Charles-Louis de Secondat, Baron de La Brède et de Montesquieu: The Division of Powers

Portrait of Montesquieu, 1728, oil on canvas / Palace of Versailles, Wikimedia Commons

Lecture by Dr. Iván Szelényi / 0915.2008
Professor Emeritus of Sociology
Yale University

Montesquieu in a Historical Context

Emblem from the Palace of Versailles of Louis XIV as the “Sun King” / Wikimedia Commons

We move to eighteenth century France. We move from a situation which was dominated by civil war, chaos and a yearning for a clear sovereign, and we move in a century, you can call it of Enlightenment–that’s where the term Enlightenment comes from, the French context–and a century of decadence. Eventually it leads to a revolution, but before the revolution there is a lot of fairly juicy decadence.

British individualism: Hobbes and Locke were methodological individualists. They thought the analysis should start always with the individual. You remember Hobbes–individual drives and fears–and then he builds up that society is starting always from the individual. Not the French. The French are methodological collectivists. They believe there is such a thing as society which is more than the sum total of the individuals, and somehow they know how to grasp it. So these are the changes, what you will see today, Thursday and next Tuesday, when we will be discussing Montesquieu and Jean Jacques Rousseau, before we return to British individualism, Adam Smith and John Stuart Mill. Don’t ask me why this difference between the two cultures, but there is a lasting difference.

Today’s topic is Montesquieu, and I have a lot of fun stories to tell, but I’ll try to limit my anecdotes so I can focus enough on the text and do not run out of time by the end. Okay, so that was Montesquieu. He was born as Charles-Louis de Secondat, Baron de La Brède–was born in 1689 near Bordeaux. His father was from a noble family, but because he was a younger son he had to become a mercenary, and, in fact, he was fighting Turks in Hungary. He received a law degree nevertheless, from the University of Bordeaux, and in 1715 he did what many aristocrats did; he married a wealthy woman, Jeanne de Lartigue, which was helpful for him because he was not all that very wealthy, though he was a nobleman. His uncle was Baron de Montesquieu, and when he passed away Charles-Louis received his title, he became Montesquieu, and inherited his office, the presidency of the Parliament of Bordeaux. Don’t think about it, it was not a very big deal and certainly did not offer income for a luxurious life–was not particularly affluent stuff and was not particularly powerful stuff.

Now a bit about the times. Well here it is, Louis XIV, the heights of French absolutism. Well he was called the Sun King. And here is his emblem (shown above), the sun; he’s shining like the sun. Well he actually claimed–that’s a famous sentence, and important to understand Montesquieu–“L’état c’est moi,” I am the state. Well it was kind of an over-statement–not quite. He pretended to be more powerful than he actually was. The French absolutism did show already cracks, and the bourgeoisie was becoming already quite powerful under the times of Louis XIV. But he had the notion of French gloire, the glory, and he built this wonderful Palace of Versailles, showing what gloire or glory is. President de Gaulle also emphasized the French gloire. The French are very fond of it.

Okay, the eighteenth century was the Century of Enlightenment, called de Siècle of Lumière; lumière means the light. Well it was Descartes who transformed philosophy towards the cold view, cold look of reason–and that was the one which was spreading in eighteenth century England–culminating in the 1789 revolution. And we see two major steps in this direction: Montesquieu and Rousseau. Well one of the major accomplishment of the Enlightenment were the publications of Encyclopédie— the sort of predecessor of Encyclopedia Britannica— Diderot and d’Alembert edited, and which put together rationalistic scholarship of their time. Well here you have the First Edition of Encyclopédie.

Well as Louis XIV passed away, his five-year-old great-grandson, Louis XV, became the king and ruled for a very long time. Well the decade of absolutism and royal authority continued, and we are really entering now, with 1715, one–probably the longest in modern history–the longest epoch of decadence and sexual permissiveness. It’s an interesting kind of–seemed to recur in human history, right? Then you had a similar kind of permissiveness and sort of decadence–1890s until 1914; probably 1930. And then the 1960s, of course, when everything goes. Well this was a time of this kind.

Well he was not particularly interested in governing, but he was very interested in beautiful women. Well he was quite a good looking guy when he was young, as well. So I’m sure women were quite interested in him too. And you know the name; Madame Pompadour was the most famous and most influential of his mistresses. As I said, it was becoming a time of sexual permissiveness, promiscuity pretty widespread–also affected Montesquieu. Here is Madame Pompadour, indeed a very beautiful person. But not only beautiful; she was extremely smart as well, as far as we can tell.

She was an intellectual of very distinguished taste. She knew all people of the Enlightenment; Voltaire, one of the big troublemakers of his time. She supported Diderot and the project of Encyclopédie, which was unusual because royal authority did not really like this one. Well let me just give you a little ethnography, if you are interested: Des Liaisons Dangereuses. Pierre Chordelos de Laclos wrote a novel about the sexual mores of this time, which is called The Dangerous Relationships, Les Liaisons Dangereuses. Well there was two movies made of it. And anybody watched any of these movies? Nobody watched it. Wonderful movie. Well there are two versions: one by Roger Vadim, and that puts the whole story in French society of its time. And the other one is an American one: Stephen Frears, and it is Glenn Close who features in it. Well this is the Pierre [correction: Roger] Vadim movie. You can borrow it; do, you will have fun, and you will have an understanding what mid-eighteenth century in France was, and where Montesquieu and Rousseau are coming from. And, of course, this is the American version with Glenn Close. She is already “rah”, the person what she likes to play: the vicious woman. Okay.

Now Montesquieu, well he lives in the century of Enlightenment and promiscuousness. He sells his office; though I mean he lives from the wealth of his wife. Starts a wine business, but then he leaves the wine business to the wife and he’s beginning to travel in Europe and in England. Then when he returns, he settles in Paris, leaves the wife back to run the wine business, and he’s beginning to write. He writes, publishes in 1721 already the Persian Letters–I talked about this before–and then he was elected on the basis of this to Académie Française, the French Academy of Sciences and Art–a very big accomplishment at this very early age.

And finally, 1748, he publishes the major book. This is really a very important book. I hope you did what I asked, you glanced at it. Not an easy read–a bit drier than some of the texts we read, but very important, fundamentally important stuff. Diderot asks him to write something for the Encyclopédie about democracy. But he’s bored with the question of democracy–he wrote enough about this–so he writes an article on taste. Okay, and he died in 1755 in Paris. So these are the times, and this is your author, Montesquieu. Now let me move on to the work. Yes, so here we go:

The Spirit of the Laws: Major Themes

Title page from Montesquieu’s first edition of The Spirit of Laws / Wikimedia Commons

The Spirit of the Laws. And here is the First Edition. So what is this book? The first part is law in general and different modes of governance–interesting, not path-breaking. This is not what he will be remembered for, though, I mean, he is opening some very important subject matters. The second one is law and politics, and separation of powers. We will see he builds on Locke and takes Locke in a big way forward–a great improvement in many–to the extent there is improvement. Of course, Locke has some insight which is missing from the Montesquieuian formulation of separation of powers.

Then he has this extraordinary section on law and climate. This is one of his big contributions. I will show you the way how he formulated it is extremely naïve, almost borders on the ridiculous. But, given the twenty-first century, there are very few people, with the exception of Ibn Khaldun–whom I named already in the introductory lecture–who was so sensitive that society lives in this globe, and how society is formed and structured, and how its laws are being shaped is actually greatly influenced by the nature of environmental and climactic conditions. So he is the first ecologist he is the first environmentalist who understand the interaction between social organizations–mores, ethics, ideas–and society.

And then there is a bit on law and commerce. I will very briefly talk about this, law and religion, and I will skip this section all together; and law and history I’ll also skip. So what are the main themes? First, you know, will be about classification of governments. Then I will talk about separation of powers, and then environment. Law and social structure, right–these are the issues we will be rushing through. There’s a lot of stuff to look at.

Well before Montesquieu, the question when they classified government was who rules, who is the sovereign? Montesquieu changes somewhat the discourse. He is interested in the manner of governments, how people who are in authority rule; the real basic distinction, whether a government is moderate or whether it is despotic. Well, what are the questions when you try to judge the nature of a government? One important question he said you should ask: Are the various powers separated or not? Irrespective who rules–whether it can be a king, it can be an elected president, it can be a prime minister–the question is: Are the powers separated? And the next question is–this is very important–why do people obey? The question why people obey orders is touched upon by Hobbes and Locke, but it’s not really elaborated. This is the issue what they will call the question of legitimacy. Right? What are the principles of why they obey orders? And we will see much later in this course that it will be Max Weber who elaborates on this issue at great lengths.

And then the next question is okay, is the ruler an individual or is this an institution? You see, this is all very interesting enrichment of the idea what the nature of governments are. He himself supports a constitutional monarchy. He supports a monarchy in which there is a king or queen, but a king and queen which operates on the rule of law; that’s what constitutional monarchy is.

The second major theme is separation of powers. I’m still elaborating what will come. Well you have read Locke distinguished between legislative, executive and federative branches of government. Montesquieu distinguishes between legislative, executive and juridical. Well this is the one which has been so influential on the American Constitution–what we all believe now in this country–that these are the three branches which should be separated; though, of course, the federative remains to be an interesting issue. Who should exercise federative powers, the powers of war? Should it, the legislature, or should it be at the executive branch, as such? Well Montesquieu suggests that the three powers will have to be separated. The legislative power–and this is a departure from Hobbes and Locke–should be by elected representatives.

And then he makes an important new contribution. He said the right of minorities should be respected. Though he kind of foreshadows something like universal voting, though he is not quite explicit about this, but you can read into it. But then he said the minority’s rights should be reserved [correction: preserved]. And he said, well the legislative power cannot and should not be held by the monarchs, but it has to be limited; there must be a limitation on legislative powers. And the executive will exercise checks over the legislature–and we will again talk about this in more detail–but there must be some checks and balances over the executive branch as well. Well it comes, you know, who controls what? He puts more emphasis on the executive limiting the legislatives than the other way around. But we will see what the arguments are and what the rationale for this is, and how this affects, for instance, the functioning of the U.S. government today. I think it is not all that far away for the blueprint Montesquieu established way back in the mid-eighteenth century. And then the last issue will be environment–how social conditions are shaped by environmental conditions.

But he said, but there is also a general spirit, a spirit which is above the individuals. And this is a very French theme, right? You cannot explain it from the individual; there is some general idea. Durkheim will call it collective conscience; Rousseau will call it the general will. Right? The very French idea that there is some consciousness above the individual consciousnesses–this has formulated so powerfully the first time by Montesquieu. And he actually said as civilization is progressing, the influence of the natural conditions declines, and the importance of general spirits increases. Or to put it with Durkheim, the collective conscience becomes more and more important.

I’ll just foreshadow, that you have a sense that this course really hangs together. Right? We are not talking about separate authors; we are talking about a set of authors who are talking to each other, debating each other. Right? That’s, I think, what is so fascinating about the foundations of modern social thought. That cannot be said about twenty or twenty-first century social theorizing, where we are at each other’s throats and we ignore each other. Right? That’s more typical. Okay, as I said, he’s a methodological collectivist. Right? And I just explained this to you a little, right? A methodological individualist who begins–in order to develop a conception of society, you have to start with the individual; the only reality, what you can observe in individual action and individual consciousness. Everything else, what you suggest, is speculative. Right? This is British individualism and empiricism. Right? The French emphasizes there are stuff, like law. This is why the legal system, the law, is so important for Montesquieu. That’s why the major book is called The Spirit of Law because the law is not simply a sum total of individual consciousness. It stands over us, and we get into a society and the law, the legal system already does exist. We will see Durkheim does the same thing; this is why the legal system is so important for him.

Classification of Governments

Montesquieu’s classification of governments

Okay, now let’s move into the first theme and talk about the different forms of government. Well he makes a distinction between republican government, monarchy, and despotic state. Republican government, in his definition, means that either the people rule–democracy, or a subset of people. Aristocracy has the sovereign power–are the source of law. As we will see, he is not all that certain whether the people rule is all that good. He prefers sort of selected aristocracy. It will be even true for Rousseau; he’s much more radical than he is. Monarchy, in which one alone governs, but by fundamental laws. The monarchy itself is bound by laws. A despotic state, there are no fundamental rules. A despot exercises its power at its will. Adolph Hitler’s Germany, or Stalin’s Russia or Soviet Union, are despotic states where there is no proper rule of law.

Now about the republic. Well, as we said, there are two forms of it: the democratic and then the aristocratic one. In the democratic, you have a selection of people to office by lot. Well he’s not talking about elections, but by lot. And indeed, in Greek democracies, people were occasionally selected to major offices in Ancient Greece by lot, by a lottery. In aristocracy, people are selected by choice. Right? The best people get into the office where they have the best skills to perform. Well he said, well everyone can vote, but not everybody’s prepared to serve in the office. That speaks for aristocracy by choice. But whatever the republic is, there is a principle: legitimacy is based on virtue. The person who serves should be virtuous. Right? And if the virtuousness of the person is questioned then, you know, the legitimacy of the person is in some trouble; verbally, the virtuousness. Remember Bill Clinton? He ran into some trouble, you know, because people started to question his virtuousness in the very narrow sense of the term. Okay, anyway that’s the guiding principle.

Then monarchy. Well here the prince has a sovereign power–is the source of law. But once the law is established, the prince has to follow that law. That’s monarchy. And the principle here is honor. The prince has to be honorable, in order to be obeyed. Again, the basis of legitimacy is honor.

And despotism, as we have seen, the one who governs can do whatever it wants to do, is above the law. Right? And what is the principle of despotic rule? Fear, right? You obey those in power because you fear them.

Separation of Powers

SlideShare, Creative Commons

Well the next theme is separation of power. And we see the three powers. Well there are the legislative power, executive power, and we will see, the power to judge later on– executive power over things, depending on the right of nations; executive power over things, depending on civil rights. He said the first power, legislative power, in fact, can be exercised by a king or a magistrate; it can be exercised by even an elected body. But the second one, executive power, well it has to be executed, he believed, usually by a monarch. And there is the last power, the power of judging, which has to be separated from both the legislative and executive power.

Let’s see the argument, what he puts forward. He said when the legislative power is united with the executive power in a single person, there is no liberty because one can fear that the same monarch who makes tyrannical rules will execute them in a tyrannical manner. So therefore you have to separate legislative and executive powers. Well this separation is not complete, because it takes time for the legislative body to pass laws, and therefore very often executives, even in the United States, operate with executive orders. Right? These executive orders kind of substitute for laws or legal regulations. So the separation, even in a modern society like a United States, is relative. And, in fact, many constitutional lawyers in the United States were concerned during the last two administrations that the executive branch too often operated by executive orders, rather than to ask the legislature to legislate about those things. Okay.

Now then he goes on and he said, look, this is not really a question of republic versus monarchy. He said, look–in his times–in most kingdoms of Europe the government is quite moderate. He said, well the prince who exercises the first two powers, well leaves a great deal of autonomy for its subjects. In the Italian republics–they are republics of his time, eighteenth century–the powers are united and there is less liberty actually in these Italian republics. Well it’s an interesting point.

Now about the legislative power. He said, well it’s better to be an elected body which exercises the legislative power, passes the laws, and–we come close to the idea of universal suffrage–in choosing the representative, all citizens should have the right to vote–and then comes the qualification–except whose estate is so humble that they are deemed to have no will of their own. In order to have a will you better be a property owner. Right? There is a suggestion here of property qualification which was quite dominant in the United States until the twentieth century. Right? But, on the other hand, he elaborates on it, people should not enter government, except to choose their representatives because in order to be in the executive, you need skills. Well you may know who could be the right person to run the office, but you may not be able to run the office. Right? That’s the fundamental idea. Well it’s also important that this representative body, the legislature, should be separated from actual action.

Now comes the idea, the right of minority. This is a novel idea, cast in a very conservative way. But though it is cast in a conservative, kind of feudal aristocratic manner–an aristocrat is speaking–he’s formulating a very important principle that we are still struggling with: how to defend the rights of minorities against a despotism of the majority? Just because 51% voted one way does not mean that 49% is wrong. Right? And the rights of that 49%, or even just 1%, in some ways has to be guaranteed, and that’s what he’s struggling with. Now here in this context–and we’ll put the citation on the Web; so I don’t want to read this very long citation–the argument is for the nobility. He said, well the nobility has more rights and therefore if they have more rights, more stakes in it, they have more than one voice.

Therefore the solution is a two chamber solution: a chamber for the aristocrats, an upper house, and a chamber popularly elected by everyone, a lower house–well not in the aristocratic sense, but in some ways representing the defense of small states, and agrarian states. This is why the Unites States Senate, every state sends two senators rather–irrespective of the size of the population. Right? And therefore, though not in a sort of feudalistic way, as Montesquieu meant it, but it is- the whole proposition is very much alive in our current political practices.

Okay, let me then move on and talk about the executive power. Well the executive power should be stable–that’s why he believes it better be in the hands of a monarch–because the government needs immediate action. It cannot leave to a messy congress to debate things all the time. The government has to act instantly, and therefore it has to be in one hand.

Well he elaborates a number of limits of legislative power. Some of it applies to the United States; others don’t, but may apply to Western democracies. It should convene at regular intervals, and that’s quite true for all democratic states, the legislature is called very often and with some regularity. Well it should not be in session without interruption. The U.S. Congress is virtually in session almost without interruption. But other parliaments in Continental Europe are not necessarily so. The reason is that they don’t want to make membership in the legislature the sole source of occupation and income–and there are things which speaks for this idea, that the legislature is not in permanent session. And then he said it should not have the right to convene itself. Well the U.S. Congress convenes itself, it doesn’t need the call of the executive. But in England, for instance, it is the queen who dissolves the parliament and calls the session of the parliament. Doesn’t give her much power, but nevertheless the idea, the Montesquieuian idea, is present in a number of Western democracies. Now regular intervals; that’s obvious, right? It should not be left to the executive, especially the executive has the right to call into session the legislature. Right? That may mean the executive will not call when new laws are needed and will become despotic. That’s why it has to be called by regular intervals. Now and it should not be in session without interruption because he said it would overburden the executive power as well. And it cannot convene itself, he said–and the arguments are known–because if it would have the right to decide whether it dissolves itself, it will never dissolve itself; that’s the fundamental argument here. As I said, in many countries this is exercised his way.

Now the executive, he said, should be able to check over the legislature. And in what way? Because it doesn’t want the legislature to paralyze the action of the government. And the main way how the executive exercises checks over the legislature is the veto right of the executive; exactly like it is done in the U.S. Constitution, right? The President can veto laws which are passed by Congress, has to send back to Congress, and the Congress has to overrule the veto of the President. There is a clear check of the executive over the legislature. Right? The executive has the possibility to remind the legislature, this may be a bad idea to pass this law; you better rethink it before it becomes a law. Well checks and balances over the executive branch. He is quite a conservative here. He said the executive power belongs to the legislative, only through its faculty of vetoing. The executive power–it’s very important–enacts the rising of public funds only with the consent of legislature. This is again a very important principle ruling all democracies–that the budgets have to be approved by the legislature. Just see the mess what we have seen in California recently, where the legislature was not giving the budget to the governor. But this is certainly a very important principle of democracy.

Environment and Law/Social Structure

And now let me come to the question of environment and society, and the whole idea that the physical conditions shape social conditions. And let me give you a couple of, as I said, quite silly notes. He said that “spirit and passion are extremely different in various climates, laws should be relative to the differences in these passions.” And now comes the real silly one. “In cold climate, the blood is pushed harder forward the heart. This produces confidence in oneself, and courage, and better knowledge.” So you are more courageous, more active and smarter if you live in cold climates, like in France or in England. People in hot countries are “timid, like old men.” I’m not all that timid. Okay. And then interestingly, you know, to sort of distance himself from racism–and that’s a term which did not exist in his time–he said even the children of Europeans born inside the Indies lose the courage of the European climate. Well, at least it is not based on a racial argument, but indeed based on an extremely naïve ecological argument. But let me emphasize, there is fantastic insight here, right? For another 200, nobody took the environment seriously; I mean, with the exception of Émile Durkheim.

We will talk about this when we talk about Durkheim, coming from Montesquieu. For Durkheim, Montesquieu and Rousseau were the gods. That’s where modern theory of society came from. It was Montesquieu and Rousseau, both of them.

So, and now about the “general spirit.” He said, well many things govern man: climate, religion, laws, the maxims of government, mores and manners–there is this all adds together, a general spirit, which is formed as a result. Right? I hope you get the idea of the general spirit that there is a set of ideas which is above our individual consciousness. In childhood we learn, we internalize those ideas. It is not coming from the individual; it is entering the individual in the process of education. Right? And therefore, the argument what Montesquieu makes, repeated by Rousseau and Durkheim, that we can have, and should have, an idea of society or collective consciousness extending over and above the individual.

This is a big debate which informs most of the debates in social sciences today. In economics, in political science, in sociology, in anthropology, you have some scholars who regard themselves–in an economics few–methodological collectivists and those who call themselves methodological individualists; rational choice people are the methodological individualists. The cultural analysts are methodological collectivists, right? We have that distinction virtually everywhere; as I said, the least in economics. But even in economics you have the institutionalists who are on the edge of between being methodological collectivists or being methodological individualists. And then well he says as civilization unfolds, the importance of the general spirit is increasing and the impact of climate is declining. Not that climate doesn’t matter, but over time its importance declines and the importance of general experience increases.