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
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 Brde 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).
Montesquieus 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 isnt 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
Montesquieus estimation could be more easily grasped from looking at mans
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 Montesquieus 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).
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 Montesquieus 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 societys perfection.
The Catholic Encyclopedia.
"Charles-Louise de Secondat, Baron de
Montesquieu." http://www.newadvent.org/Cathen/10536a.htm (retrieved 27 April
2000) Chan, Jannie C. "Montesquieus Political Theory: Truth or Fiction?"
nassaulib.org/professors/JannieChanSOL.htm (retrieved 3 May 2000)
Encarta Learning Zone. "Montesquieu, Charles Louis de Secondat, Baron de la
Brede et de.
(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)