BOOKI On laws in generalCHAPTER I On laws in their relation with the various beings Laws, taken in the broadest meaning, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: the divinityl has its laws, the material world has its laws, the intelligences superior to man have their laws, the beasts have their laws, man has his laws. Those who have said that a blindfate has produced all the effects that we see in the world have said a great absurdity; for what greater absurdity is there than a blind fate that could have produced intelligent beings? There is, then, a primitivea reason; and laws are both the relations that exist between it and the different beings, and the relations of these various beings to each other. God is related to the universe, as creator and preserver; the laws according to which he created are those according to which he preserves; he acts according to these rules because he knows them; he knows them because he made them; he made them because they are related to his wisdomb and his power. As we see that the world, formed by the motion ofmatter and devoid ofintelligence, still continues to exist, its motions must have invariable laws; and, if one could imagine another world than this, it would have consistent' rules or it would be destroyed. 1 "The law," Plutarch says in [Moralia] Ad principem ineruditum [78oc], "is the queen of all, mortal and immortal." [Plutarch is quoting Pindar, fragment 169 (151).] 'We have rendered Montesquieu's primitive as "primitive," thus retaining the distinction between that term and premier, "first," which is used repeatedly in 1.2. bWe have translated sage and its various forms with "wise" and its various forms. The meaning is generally prudence, calm, sobriety. 'Montesquieu uses constant, constamment, and constance to refer both to a fixed rule and 3 Part I Thus creation, which appears to be an arbitrary act, presupposes rules as invariable as the fate claimed by atheists. It would be absurd to say that the creator, without these rules, could govern the world, since the world would not continue to exist without them. These rules are a consistently established relation. Between one moving body and another moving body, it is in accord with relations of mass and velocity that all motions are received, increased, diminished, or lost; every diversity is unifimnity, every change is consistency.d Particular intelligent beings can have laws that they have made, but they also have some that they have not made. Before there were intelligent beings, they were possible; therefore, they had possible relations and consequently possible laws. Before laws were made, there were possible relations of justice.' To say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that before a circle was drawn, all its radii were not equal. Therefore, one must admit that there are relations of fairness! prior to the positive law that establishes them, so that, for example, assuming that there were societies of men, it would be just to conform to their laws; so that, if there were intelligent beings that had received some kindness from another being, they ought to be grateful for it;K so that, if one intelligent being had created another intelligent being, the created one ought to remain in its original dependency; so that one intelligent being who has done harm to another intelligent being deserves the same harm in return, and so forth. But the intelligent world is far from being as well governed as the physical world. For, though the intelligent world also has laws that are invariable by their nature, unlike the physical world, it does not follow its laws consistently. The reason for this is that particular intelligent beings are limited by their nature and are consequently subject to error; furthermore, it is in their nature to act by themselves. Therefore, they to multiple actions that conform to the rule. We have chosen to translate them by "consistent" and "consistency," which have both of these implications. dHere translating constance as "consistency" conveys the meaning ofchanging according to a rule, as "constancy" with its static implication would not. See note b, above. 'Here Montesquieu takes advantage ofthe range ofmeaning ofthe French}uste, which includes both the notion of"correct" and that of"just." It leads him to the arithmetic notion of justice in the next paragraph. f Equiti is translated throughout as "fairness," because it implies a much wider sphere than the English term "equity" with its almost exclusively legal implications. Here Montesquieu's equite reminds the reader of the egal, "equal," at the end of the preceding sentence and of the arithmetic relation. gavoir de la reconnais,ance, See 31.33 (note', bk. 3 I). 4 On laws in general do not consistently follow their primitive laws or even always follow the laws they give themselves. It is not known whether beasts are governed by the general laws of motion or by a movement particular to themselves. Be that as it may, they do not have a more intimate relation with god h than the rest of the material world has, and feeling is useful to them only in their relation to one another, either with other particular beings, or with themselves/ By the attraction of pleasure they preserve their particular being; by the same attraction they preserve their species. They have natural laws because they are united by feeling; they have no positive laws because they are not united by knowledge. Still, they do not invariably follow their naturallawsj plants, in which we observe neither knowledge nor feeling, better follow their natural laws. Beasts do not have the supreme advantages that we have; they have some that we do not have. They do not have our expectations; but they do not have our fears; they suffer death as we do, but without recognizing it; most even preserve themselves better than we do and do not make such bad use of their passions. Man, as a physical being, is governed by invariable laws like other bodies. As an intelligent being, he constantly violates the laws god has established and changes those he himself establishes; he must guide himself, and yet he is a limited being; he is subject to ignorance and error, as are all finite intelligences; he loses even the imperfect knowledge he has. As a feeling creature, he falls subject to a thousand passions. Such a being could at any moment forget his creator; god has called him back to him by the laws ofreligion. Such a being could at any moment forget himself; philosophers have reminded him of himselfby the laws of morality. Made for living in society, he could forget his fellows; legislators have returned him to his duties by political and civil laws. hMontesquieu never capitalizes dieu, "god." i dans [erapport qu 'elles ont entreelles, ou avecd'autres itres particuliers, ou avec elles-memes. The middle term was added after 1748. This addition suggests that the meaning is that relations among animals may be either with members of other species or with other members of their own species. iWhether men's having purposes beyond those of the animals leads to hopes or expectations is, of course, not clear from the French. (See note a in Preface.) 5 Part I CHAPTER 2 On the laws ofnature Prior to aU these laws are the laws of nature, so named because they derive uniquely from the cf,nstitution ofour being. To know them well, one must consider a man before the establishment of societies. The laws he would receive in such a state will be the laws of nature. The law that impresses on us the idea of a creator and thereby leads us toward him is the first of the natural laws in importance, though not first in the order ofthese laws. A man in the state of nature would have the faculty of knowing rather than knowledge. It is clear that his first ideas would not be speculative ones; he would think ofthe preservation ofhis being before seeking the origin ofhis being. Such a man would at first feel only his weakness; his timidity would be extreme: and as for evidence, if it is needed on this point, savages have been found in forests;Z everything makes them tremble, everything makes them flee. In this state, each feels himself inferior; he scarcely feels himself an equal. Such men would not seek to attack one another, and peace would be the first natural law. Hobbes gives men first the desire to subjugate one another, but this is not reasonable. The idea of empire and domination is so complex and depends on so many other ideas, that it would not be the one they would first have. Hobbes asks, If men are not naturally in a state of war, why do they always carry arms and why do they have keys to lock their doors?k But one feels that what can happen to men only after the establishment of societies, which induced them to find motives for attacking others and for defending themselves, is attributed to them before that establishment. Man would add the feeling of his needs to the feeling of his weakness. Thus another natural law would be the one inspiring him to seek nourishment. I have said that fear would lead men to flee one another, but the marks of mutual fear would soon persuade them to approach one 2 Witness the savage who was found in the forests of Hanover and who lived in England in the reign of George I. kS ee Thomas Hobbes, Leviathan, bk. I, chap. 13. 6 On laws in general another. They would also be so inclined by the pleasure one animal feels at the approach of an animal of its own kind. In addition, the charm that the two sexes inspire in each other by their difference would increase this pleasure, and the natural entreaty' they always make to one another would be a third law. Besides feelings, which belong to men from the outset, they also succeed in gaining knowledge; thus they have a second bond, which other animals do not have. Therefore, they have another motive for uniting, and the desire to live in society is a fourth natural law. /priere. CHAPTER 3 On positive laws As soon as men are in society, they lose their feeling of weakness; the equality that was among them ceases, and the state of war begins. Each particular society comes to feel its strength, producing a state ofwar among nations. The individuals within each society begin to feel their strength; they seek to tum their favor the principal advantages of this society, which brings about a state of war among them. These two sorts ofstates ofwar bring about the establishment oflaws among men. Considered as inhabitants of a planet so large that different peoples are necessary, they have laws bearing on the relation that these peoples have with one another, and this is the RIG H T 0 F NAT ION S.'" Considered as living in a society that must be maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the POLl TI CAL RIG H To" Further, they have laws concerning the relation that alI citizens have with one another, and this is the CIVIL RIGHT. The right of nations is by nature founded on the principle that the various nations should do to one another in times of peace the most good possible, and in times ofwar the least ill possible, without harming their true interests. mIe droi/ des gens is translated "right of nations" throughout. "We have translated droit as "right" and loi as "law." Although the French droit is usually closer to the meaning of "law" in English, we have kept Montesquieu's usage so that his distinction and his version of the changes in meaning would nOl be obscured. 7 Part I The object of war is victory; of victory, conquest; of conquest, preservation. All the laws that form the right of nations should derive from this principle and the preceding one. All nations have a right of nations; and even the Iroquois, who eat their prisoners, have one. They send and receive embassies; they know rights ofwar and peace: the trouble is that their right of nations is not founded on true principles. In addition to the right of nations, which concerns all societies, there is a political right for each one. A society could not continue to exist without a government. "The union ofall individual strengths," as Gravina aptly says, "forms what is called the POL I TIC A L S TAT E. "0 The strength ofthe whole society may be put in the hands of one alone or in the hands of many.P Since nature has established paternal power, some have thought that government by one alone is most in conformity with nature. But the example ofpaternal power proves nothing. For, if the power ofthe father is related to government by one alone, then after the death of the father, the power of the brothers, or after the death of the brothers, the power of the first cousins, is related to government by many. Political power necessarily includes the union of many families. It is better to say that the government most in conformity with nature is the one whose particular arrangement best relates to the disposition of the people for whom it is established. q Individual strengths cannot be united unless all wills are united. The union of these wills, as Gravina again aptly says, is what is called the CIVIL STA TE: Law in general is human reason insofar as it governs aU the peoples of the earth; and the political and civil laws of each nation should be only the particular cases to which human reason is applied. Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another. Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws. °Giovanni Vincenzo Gravina, Origine RomtJni juris (1739), bk. z, chap. 18, p. 160. PThe eighteenth-century meaning ofplusieurs was "many." The opposition is between "one" and "many," as between monarchies or despotisms and republics in Book z. q II vaut mieux dire que Ie gouvemement Ie plus conforme a/a nature est eelui dont /a disposition particulitre se rapporte mieux a /a disposition du peuple pour lequel il est ctab/i. No English word covers all the disparate topics Montesquieu joins with the word disposition. 'Giovanni Vincenzo Gravina, Origine RomtJnijuris (1739), bk. 3, chap. 7, foomote, p. 3". 8 On laws in general They should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way oflife of the peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners; finally, the laws are related to one another, to their origin, to the purpose of the legislator, and to the order ofthings on which they are established. They must be considered from all these points of view. This is what I undertake to do in this work. I shall examine all these relations; together they form what is called THE SPIRIT OF THE LAWS.' I have made no attempt to separate political from civi/laws, for, as I do not treat laws but the spirit of the laws, and as this spirit consists in the various relations that laws may have with various things, I have had to follow the natural order of laws less than that of these relations and of these things. I shall first examine the relations that laws have with the nature and the principle of each government, and, as this principle has a supreme influence on the laws, I shall apply myselfto understanding it well; and if I can once establish it, the laws will be seen to flow from it as from their source. I shall then proceed to other relations that seem to be more particular. SL 'ESP RIT DES LOIX. Whenver possible, we translate esprit as "spirit," but "mind" and "wit" also appear. 9
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