Montesquieu`s Definition Of Law
The following was completed for a Political
Thought and Theory Class in my
Senior Year of Highschool..my grade was an
85 Montesquieu: Definition of Law
Into the first three chapters of Book
1, The Spirit of Laws, Montesquieu
condensed a lifetime of thinking, not so
much on law as what law is, (after all,
the work by Montesquieu is entitled
The Spirit of Laws, not The Laws of the
Spirit). The definition of law
provided to us by Montesquieu can be most clearly
identified as a series of
relationships which are derived from the nature of
things; relationships
varying not only among human beings, but animals and
thought. Background:
Montesquieu, Charles-Louis de Secondatbaron de la Brède et
de Born January
18, 1689, Montesquieu (Caption 1-1) belonged to an old family of
modest
wealth that had been ennobled in the 16th century for services to the
crown.
Charles-Louis studied at the faculty of law at the University
of
Bordeaux, was graduated, and ventured out for experience in law. He
married
Jeanne de Lartique and through marriage he became socially and
financially
secure. He wrote many works pertaining to the lawfield
(Encarta).
Montesquieu’s Definitions of Law "Laws, in their most general
signification,
are the necessary relations arising from the nature of
things." (Spirit)
Montesquieu in the first book would seem to be
collating all that has been said
on the law into some complex equation,
eliminating the common and arriving at
some simple solution. Thus, laws in
the most general sense are the relationships
between things (all things) as
the nature of things shows: the nature of things
seen, heard, and read. God
isn’t seen nor heard, or read; still, he must have
his place, but not first
in the order of the nature of things (Catholic).
"There is, then, a prime
reason; and laws are the relations subsisting between
it and different
beings, and the relations of these to one another." (Spirit)
But we have
overlooked a key word kept by Montesquieu in his most
concentrated
definition: laws are not only relationships, they are necessary
relationships.
Here grows a somewhat ambiguous question. Why are they
necessary? They are not
necessary due to a decree of some sort, but become
natural; thus the term
"Prime Reason. (Loy 89)" "God is related to the
universe, as Creator and
Preserver; the laws by which He created all
things are those by which He
preserves them. He acts according to these
rules, because He knows them; He
knows them, because He made them; and He
made them, because they are in relation
to His wisdom and power." (Spirit) It
is true that Montesquieu seems to waver
between "natural law" and "laws of
nature" as expressions. It is also
true that he defines laws of nature as
those that derive solely from our beings
(Loy 90). "By the allurement of
pleasure they preserve the individual, and by
the same allurement they
preserve their species. They have natural laws, because
they are united by
sensation; positive laws they have none, because they are not
connected by
knowledge." (Spirit) Animals however, are without knowledge but
have some
natural laws. Although Montesquieu does spare us the
seventeenth-century
discussion of pre-social man, he has not escaped certain
confusions in
regards to human reason and Prime Reason (Chan). "Before there
were
intelligent beings, laws were possible; they had therefore
possible
relations, and consequently possible laws. Before laws were made,
there were
relations of possible justice. To say that there is nothing just
or unjust but
what is commanded or forbidden by positive laws, is the same as
saying that
before the describing of a circle all the radii were not equal."
(Spirit) It
is also in his discussion of natural law that Montesquieu comes
to the
conclusion that after God comes first a state of peace. For
Montesquieu, peace
is the first law of nature. Following natural laws are
nourishment, sex, and
society (Chan). "But the intelligent world is far from
being so well governed
as the physical. For though the former has also its
laws, which of their own
nature are invariable, it does not conform to them
so exactly as the physical
world." (Spirit) Once the natural law is done with
(and Montesquieu started
there for many reasons), one is on relatively
clearer, emperic grounds with the
positive laws. International law, political
law, civil law: nothing in
Montesquieu’s estimation could be more easily
grasped from looking at man’s
past. When Montesquieu makes his famous
statement that law is human reason, one
takes note he is writing under the
heading "positive law. (Loy 91)" "Law,
in general, is human reason insofar as
it governs all the nations of earth."
Conclusion: All of this, although
not original, is Montesquieu’s obvious
contribution to his science of laws.
His whole attraction to his subject
(whether conscious or not), his role in
intellectual history, his genius, were
involved with seeing everything
through both kinds of Nature (Loy 92). Through
metaphysics and science,
through moral and physical causes, through Philosophy
and History, through
absolute and relative, through what ought to be and what is
the spirit
guiding human social life on this earth is, its existence and its
essence,
his goal was simply his honesty and seen in historical perspective, his
great
contribution to the Enlightenment and the Social Sciences. The Spirit
of
Laws gives us the ability to share in Montesquieu’s most logical and
awarded
analysis of what laws are; a series of relationships which are
derived from the
nature of things; relationships varying not only among human
beings, but animals
and thought. By understanding first what law is, we may
better strive towards
improved legal systems and society’s
perfection.
Bibliography
The Catholic Encyclopedia.
"Charles-Louise de Secondat, Baron de
Montesquieu."
http://www.newadvent.org/Cathen/10536a.htm (retrieved 27 April
2000)
Chan, Jannie C. "Montesquieu’s Political Theory: Truth or
Fiction?"
http://www.nassaulib.org/professors/JannieChanSOL.htm (retrieved 3
May 2000)
Encarta Learning Zone. "Montesquieu, Charles Louis de Secondat,
Baron de la
Brede et de."
http://encarta.masn.com/find/concise.asp?z=2&+i03BF9000
(retrieved 3 May
2000) Loy, Robert J. Montesquieu. New York: Twayne Publishers,
1968
Montesquieu, Charles-Louis de Secondat. The Spirit of Laws.
http://www.taxexemptlaw.com/library/sol-01.shtml
(retrieved 24 May 2000)