FRAMING THE DETERMINATION PROBLEM: PART 1, BOOK I

The determination problem comes to the fore in the first pages of Spirit. Of the wealth of issues Montesquieu raises in the opening book, the primary question that emerges is whether humans are truly free to follow the laws of the intelligent world. He identifies three dimensions to this problem: determination from the physical world, subrational determination within each person, and determination from the social world. In the first chapter, after some discussion of the definition of law and the role god played in creating and preserving the world according to laws, Montesquieu dwells on the distinction between the physical world and the intelligent world. Although the physical world is in itself “devoid of intelligence,” the laws of physics demonstrate that its motions, causes, and effects presuppose intelligible rules: “every diversity is uniformity, every change is consistency” (I.1, 4). However, the world of intelligent beings, although not lacking rules to govern their actions, does not behave in such clear and intelligible ways. This is because it is in the nature of intelligent beings “to act by themselves,” and because they are likely to err while trying to conform to their rules. Montesquieu highlights the paradox, then, that it is the material world devoid of reason that acts in highly rational ways and the intelligent world that does not.

Humans, however, are not simply intelligent beings, but also material beings, subject to the same physical and biological laws as the rest of physical creation (Courtney Reference Courtney, Carrithers, Mosher and Rahe2001, 60; Pangle Reference Pangle1973, 27; Zuckert Reference Zuckert, Paul, Miller and Paul2001, 232). The material aspects of man perform predictably, according to the laws of the material world. Those laws affect man by way of his physical body, senses, and emotions. “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. . . . As a feeling creature, he falls subject to a thousand passions” (I.1, 5). Thus, the question arises: to what degree is man free to act intelligently? It appears that he is liable to be determined by the laws of the physical world.

In the second chapter, Montesquieu dwells on the issue of subrational determination. Here he discusses man's nature and the five natural laws, which “derive uniquely from the constitution of our being.” The first natural law is for man to seek peace with those around him, a desire aroused by feelings of inferiority, weakness, and self-preservation. The second is a desire to seek nourishment, aroused by a feeling of need, presumably one of hunger. The third is a desire to approach other members of his species, especially of the opposite gender, a desire aroused by sense perceptions of mutual timidity as well as a feeling of pleasure and charm on seeing signs of gender difference. In time, men would gain knowledge and see marks of a shared intelligence with other men; thus, the fourth natural law would emerge as a desire to unite and live in society with other men. The fifth law would arise last. It would impress man with the idea of a creator, and move him to seek and know god (I.2, 6–7).

What is most significant about these laws is that they function instinctively, as if programmed into man's nature by the creator. The first three natural laws are shared with the other animals, and operate on the emotions or “feelings” to ensure the preservation of the self and species. With time, however, man gains knowledge, “which other animals do not have,” and this motive eventually serves to drive the third law as well, and finally the fourth and fifth laws, which specifically require knowledge, be it to create society, or to seek and know god.Footnote ¹⁰ Thus, we have a picture of subrational and rational natural laws that operate on man in tandem. But Montesquieu does not work out how or whether human intelligence has sovereignty over the passions and feelings that seem to drive the natural laws. He does not provide a psychology of freedom, and so the question from the first chapter remains. Is man free to act intelligently, or will he fall “subject to a thousand passions”?

The third chapter presents a new dimension of the problem. The first line reads: “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.” Social interaction brings about new limitations to human freedom. Although primitive man initially has feelings of attraction and weakness toward other members of his species that would lead him to organize socially, once that larger social organization is established, ideas of “empire” and “domination” enter men's minds (I.2). Self-interest drives some to improve their lot at the expense of others, producing quarrels, and eventually an internal state of war. Distinct groups come to feel the same disordered self-interest and strength toward other groups, which produces states of war among social groupings. Individual freedom is lost in such warfare, and so in an attempt to get out of this grave situation, men establish the first positive laws: the right of nations, the political law, and the civil law (I.3, 7). This establishment of positive law is man's first attempt to solve the tremendous social determination problems produced by the two states of war, wars against other societies (external warfare) and wars within one's own society (internal warfare).

Therefore, the opening book has three chapters, and each chapter highlights a different challenge to human freedom: physical determination, subrational determination, and social determination. The freedom and determination problem is the main metaphysical question with which Montesquieu's political theory must concern itself because the project of discovering a science of human laws is of no use if man is fully determined by his physical surroundings, subrational forces, or social circumstances—if he is unable to act as a free and intelligent being.Footnote ¹¹ This opening predicament guides the organization of the rest of Spirit, and the dilemma is not ameliorated until the middle of the work.Footnote ¹² In the subsequent books of Part 1, the determination problem continues to have an underlying, but constant, presence.

DETERMINATION IN THE GOVERNMENT FORMS: PART 1, BOOKS II–VIII

For the rest of Part 1, Montesquieu introduces his three main government forms and seeks to investigate to what degree the three main forms secure freedom for these societies. Do these regime forms ward off internal warfare and corruption? Montesquieu answers that the stable rule of law secures some measure of freedom for a people as compared to the state of war that exists when men have no laws, but as we will see, by the end of Part 1, Montesquieu also shows that the three main government types are still subject to considerable political and physical constraints, most notably by the size of their territory. At the conclusion of these books, Montesquieu still has not resolved the determination problem to his satisfaction.

To see properly how Montesquieu's discussion of the three main government types culminates in the freedom and determination problem, one should note that the principle (or “spring”) of each government form is derivative from the structure (or “nature”) of each government form—and that these political structures are quite rigid structurally. As Rahe (Reference Rahe, Carrithers, Mosher and Rahe2001) explains, Montesquieu abandons the typology of regimes of the ancients and medievalists and replaces it with a three-part scheme of his own consisting of republics (with democratic and aristocratic republics constituting subsets), monarchies, and despotisms (69)—from now on the three archetypes. The “nature” of each form is the constitutional structure or political law that creates the regime. The “spring” of each regime form is the human passion that sets and preserves the political structure in motion, and this term “spring” is a precise, technical term. Montesquieu argues that the spring of republics is virtue, the spring of monarchy is honor, and the spring of despotism is fear.

Montesquieu arrives at this spring theory by asking what will prevent each archetype from corruption, alteration, or damage.Footnote ¹³ The principle of each regime type serves as the emotional motor or “spring” that keeps the machinery of government in motion. It does so by motivating the vital social element of each archetype to preserve the rule of law or, in the case of despotism, the status quo. Therefore, in democratic republics, where all citizens play a part in maintaining political order, the necessary emotion has to be a universal and powerful love of the homeland and of equality. This love requires “a continuous preference of the public interest over one's own [interests]” and is a love “singularly connected with democracies” where “government is entrusted to each citizen” (IV.5, 36). Thus, the principle of the democracy is this feeling of love for the homeland, and Montesquieu calls it “virtue.”Footnote ¹⁴ What is important to note is that the laws of democracy must work to support this spring. It is a strict legal apparatus.

With aristocracies, virtue is not as universally required as it is in democracies because the vital social element there is the body of aristocrats. Whereas in democracies, everyone is responsible for executing the law, in aristocracies, the nobles are responsible for executing the law and holding the rest of the republic to the law (III.4, 24). However, because no higher authority exists to hold the nobles of the aristocracy to the rule of law, the nobles must exhibit that selfless love of the homeland that will move them to preserve political order—or at the very least—Montesquieu concedes, a moderate virtue that makes them feel equal to and checked by their fellow aristocrats. The principle of aristocracies, then, is rarely pure virtue, but is usually a moderation “founded on virtue.” Again, the spring of this government works to cause the vital social element to preserve the political structure, and all of the laws must support this spring.

In monarchies, the vital social element also resides with the nobles. However, whereas the nobles of aristocracies must lean toward selflessness, frugality, modesty, simplicity of manners, and moderation, the nobles of monarchies need to cultivate ambition, wealth, self-interest, ornamentation, and honor. This is due to the fact that the political structure of the monarchy is vertically three tiered, not two tiered, as is that of the aristocratic republic. Because the political structure of monarchical government assumes a monarch, an intermediary level of nobles, and subjects, the intermediary presence of the nobles is of the utmost importance because they preserve the monarchy from slipping into despotism. The nobles must systematically preserve their differences between the subjects and the monarch, their unique position in the social ladder; and this requires great love of self and class. Thus, the passion or ‘spring’ that preserves the nobles in their place is honor, which Montesquieu defines as “the prejudice of each person and each condition” (III.6, 26). Montesquieu says more about the operations of the monarchy, but the following simile is most telling for its emphasis on its mechanistic qualities: “it is like the system of the universe, where there is a force constantly repelling all bodies from the center and a force of gravitation attracting them to it. Honor makes all the parts of the body politic move; its very action binds them, and each person works for the common good, believing he works for his individual interests” (III.7, 27).

In despotisms, fear is the only passion that can keep the vizir(s) loyal to the despot and the political status quo. And although it is primarily the vizirs who need to fear the despot for stability's sake, widespread fear and obedience is more effective (III.9, 28). Thus, the laws of the despotism must be uniform in purpose and function, like those of the other archetypes.

Montesquieu believes he has found the way to ensure the preservation of each archetype by assigning a principle to each regime that is grounded in the human passions accessible to the vital social element of each. The upshot of this solution, however, is that the remaining laws must work to preserve the necessary spring, so that it can preserve the political law. This chain of reasoning is detailed in Books IV, V, and VI. A strict legal machinery is involved in the operation of the archetypes, and the stakes are high: regime preservation or corruption. As Montesquieu argues in Book VIII, if the civil and criminal laws of the archetypes are not in strict harmony and accordance with the principle of each regime, the regime will be imperfect, and over time the political law will corrupt and expire, or change into something else, most likely despotism (III.11, 30; VIII.6, 116; Krause Reference Krause2002, 34–5).

It turns out, then, that the inner workings of the archetypes must endeavor to function like the physical world: all the springs must be in place, and all the laws must support and be derived from the spring and the spring from the nature of the government (III.1–2, 21). Although Montesquieu set out after the descent into war of chapter one to discover what political space there is for human freedom, in the course of explaining the traditional solutions he shows there is little room for legislative creativity or flexibility or freedom in the way these three regimes can be run internally (fn. III.1, 21; Courtney Reference Courtney, Carrithers, Mosher and Rahe2001, 54; Rosso Reference Rosso and Regaldo1971, 147). Certainly, these regimes secure a degree of freedom (and, in the case of monarchy, a good measure of freedom) as compared to the loss of freedom in the absence of law. However, Montesquieu has not solved the problem to his satisfaction, for he has only lessened somewhat the degree of social and political determination.

Montesquieu delivers a major deterministic blow to the archetypes, however, at the end of Part 1 when he argues that the initial selection of what regime a people should have is not up to the free decision of a people or its founders. If a legislator wants to know what sort of regime should exist in his home, the thing he must look at is the space of the place, the size of the territory, and its physical characteristics: “It is in the nature of a republic to have only a small territory; otherwise, it can scarcely continue to exist” (VIII.16, 124). “A monarchical state should be of medium size. If it were small, it would form itself into a republic; if it were quite extensive, the principle men of the state . . . could cease to obey” (VIII.17, 125). “A large empire presupposes a despotic authority in the one who governs” (VIII.19, 126) (see also Aron Reference Aron1968, 22–3, 57). Ultimately, the size of the territory determines what kind of political law a people should have, which determines what kind of spring must operate there, which determines what kinds of civil and criminal laws should govern (V.1, 42). Not only are the archetypes constrained legislatively, requiring that the laws operate like clockwork, but they are also physically constrained, suitable only for certain sizes.Footnote ¹⁵ Thus, in the course of trying to lessen the social dimension of the determination problem, Montesquieu has run into the physical dimension of the problem, without providing a fully satisfying solution for either. Therefore, Part 1 does not resolve the determination problem, but heightens its difficulty. It is not until Part 2 that Montesquieu makes significant inroads into the solution, forging the way for greater human liberty with new forms of political society. With Part 2, then, the dialectical structure of the work will begin to surface because the theme of human freedom will be more dominant than that of determination.

FREEDOM IN THE NEW GOVERNMENT FORMS: PART 2, BOOKS IX–XIII

In Part 2, Montesquieu takes up the social determination problem from the beginning again, going back to the central problems societies must face when they first form: internal and external warfare. This time he approaches the problem from a new angle, dealing first with the issue of external warfare, rather than the problem of internal warfare, as the discussion of the archetypes had tried to solve, and further separating the matter into the topics of defensive and offensive force. In this part, Montesquieu asks what regime forms excel at defensive and offensive force before he renews his inquiry into internal warfare, and he later provides more promising solutions to the social dimensions of the problem. The theme of this part is freedom.

Montesquieu begins with a consideration of defensive force and the federal republic. The federal republic does not fit into any one of the three archetypes. It is an anomaly, a union of many republics, and it is said to overcome internal and external political threats because of its form because it is not so small that it can be easily conquered (hence, its defensive power), but not so large that it can be destroyed by internal vices (thereby maintaining domestic control). The federal republic, in other words, is able to hold these forces at bay—forces that restrict republics and monarchies to their particular sizes. “This sort of republic, able to resist external force, can be maintained at its size without internal corruption; the form of this society curbs every drawback” (IX.1, 132).

In Book X, Montesquieu discusses how the different archetypes do offensively, honing in on monarchy, which is the only archetype with real offensive possibilities. He dismisses republics, federations, and despotisms as unable to carry out proper wars or conquests, either out of physical weakness, incompatibility with internal principles, or disrespect for the right of nations. Monarchies are the only ones that can wage proper wars and run conquests successfully, with Alexander the Great as the quintessential example of how it ought to be done. Montesquieu devotes several pages to Alexander, emphasizing how wisely he fought, how swiftly he conquered, and how much he improved the lot of the peoples he vanquished. It is fitting for Montesquieu to dwell on him in Part 2 because Alexander was able to manipulate outcomes by conquering natural and social forces (X.14, 148).

The conclusion one can draw from Book X is that although monarchies are determined internally like the other archetypes, externally, or vis-à-vis other nations, they can enjoy some power and freedom to determine the events surrounding them. Although Montesquieu stresses that monarchies must take care to treat vanquished peoples with great diplomacy—according to the right of nations—and to conquer within limits so that they do not go beyond their proper size (X.9, 145), in the area of offensive force monarchies manifest a freedom that the other archetypes do not enjoy.

The free regime, however, that Montesquieu introduces in Book XI is able to match this power and more. The constitution of the free regime is the only regime form with liberty as its direct purpose. And it, too, is an anomaly, but rather than a union of many uniform regimes, as was the federal republic, it is the division of one, a divided monarchy. It embodies Montesquieu's famous separation of powers, and employs the mechanics of checks and balances to preserve the separation. Other scholars have described the way in which its political mechanics secure Montesquieu's unique conception of political liberty (Zuckert Reference Zuckert2004, 9–15). I highlight the way in which the structure and movement of the free regime best overcomes two dimensions of the determination problem.

Whereas the archetypes were dependent first on the size of the territory, which determined what political law a people would have and which made obligatory a particular spring to move the vital social class to support the political law, and to permeate all civil legislation there, the free regime depends on none of these things. Nowhere does Montesquieu indicate that the free regime would have to be of a particular size. His suggestion is that the political and civil laws of this regime preserve their effectiveness over whatever size territory. This is likely due to the fact that all citizens and classes are represented in and divide the powers of this government, and because, as Montesquieu reveals in Part 4, the commercial activity of this regime makes it particularly friendly with other states, lessening the need to intimidate by its size or be prepared to fight or conquer other formidable territories. The latter feature makes the free regime the best in the area of offensive and defensive force because it works to eliminate the very causes of war (XX.2, 338).

Whereas the archetypes were dependent on predictable internal activity (as “in physical motion, an action is always followed by a reaction” (V.I, 42)), Montesquieu shows that the free regime is in a constant state of “internal agitation” and is marked by an almost chaotic, unpredictable “changeableness” of its government (XIX.27 329). Rather than depend on a single principle of motion, buttressed by a lattice of civil laws, the free regime's system of separation of powers and checks and balances employs competition as the method of protecting its own political form, by way of a combination of springs and social elements. This is seen in Book XIX.27, (329) where Montesquieu describes the mechanism of ‘internal agitation’ by which the political structure of the free regime would preserve itself. Citizens would manifest many emotions there (“hatred, envy, jealousy, and the ardor for enriching oneself . . . .” XIX.27, 325), all of which would support the competitive balance and separation of the two main powers in this regime. The people would be “uneasy {inquiète} about their situation” and believe themselves “in danger even at the safest moments.” Those of the legislative party, in particular, would feel “terror” toward the executive power and feel temporary “calm” only when the legislative power pacified their fears. Montesquieu stresses that even “empty clamors” and bickering among citizens and social classes would have the “good effect of stretching all the springs of the government and making all of the citizens attentive” (XIX.27, 326). It is not inconsequential that Montesquieu uses the precise, technical term “spring” in its plural while explaining the operations of the free regime. There are several springs here, and all are related to this feeling of unease, or “inquiètude,” that helps the social classes (all of them vital social elements) to stay on watch, constantly uneasy about the safety of their liberties, and ready to do what it takes to preserve the balance of power when an imbalance is perceived (Rahe Reference Rahe, Carrithers, Mosher and Rahe2001, 84–90). What is unique about the political law of the free regime, therefore, is that it generates the emotional energy that it needs to keep itself going. In an important sense, it is self-sustaining.

Because the political law preserves itself in motion, it frees up the civil and criminal code, no longer bound to the sole task of sustaining the constitutional structure. There is more room for justice and fairness in the crafting of legislation. The civil and criminal code is free to follow principles of justice and laws of morality in a way that the legislators of the archetypes were not always as free to do, due to their more pressing task of preserving the fundamental order. In Book XIII, Montesquieu begins to lay out such details, discussing how public monies should be gathered in a way that respects justice and liberty, when the discussion stops abruptly. Montesquieu takes up this conversation again in Parts 4 and 5 of the work, showing how the civil and criminal legislation should be crafted in such a way that it advances natural rights and freedom of citizens.Footnote ¹⁶ At this juncture, however, and just when Montesquieu has begun to gain ground on the social dimension of the determination problem, he returns to the physical dimension of the determination problem, and this time more forcefully. Whereas the books of Part 2 focus on the range of social freedoms possible to a few political forms—the defensive freedom of republics; the offensive freedom of monarchies; the defensive, offensive, and internal freedom of the English constitution—the books of Part 3 return to the multifaceted problem of physical determination, thus establishing the dialectical structure of the work.

PHYSICAL DETERMINATION BY THE CLIMATE AND TERRAIN: PART 3, BOOKS XIV–XVIII

Part 3 studies in detail various kinds of servitude, including the causes of climactic servitude (Book XIV), civil slavery (Book XV), domestic slavery (Book XVI), political slavery (Book XVII), and terrestrial servitude (Book XVIII). In Book XIV, Montesquieu traces the root cause of physical determinism to the climate, arguing that different temperatures exert powerful influences on the body. He submits his memorable laboratory results of a sheep's tongue under different temperatures to show that the movement of skin cells is determined by temperature and surroundings, which in turn determines the work habits of the mammal (XIV.2, 233). Cold air, he argues, contracts the skin, thereby increasing the spring of the body's surface fibers, making the blood flow more quickly, which strengthens the heart. He infers that people who live in cold climates will be stronger, more confident, and courageous. They will not be insecure, nor have a desire for vengeance, making them more peaceful and apt for self-government and laws that permit liberty (XIV.2, 231). In contrast, people who live in hot climates will experience a weakening of their surface fibers and springs, making them feeble, less confident in themselves, and more sensitive to pain and pleasure, including sexual pleasure, which according to Montesquieu moves the soul sovereignly in hot countries (XIV.2, 234). Thus, he revisits the materialist perspective of Part 1, Book I, and contends that human agency is severely inhibited in hot climates.

The theme of physical and social determination over freedom continues in Book XV, where Montesquieu turns to civil servitude. From the very beginning, he makes plain his aversion for slavery, arguing that it is always opposed to natural right (XV.1–2, 247–8). He rebuts various well-known justifications for slavery, arguing that the alleged right of slavery arises out of prejudice, religious zeal, or ignorance (XV.5, 250). There are, however, two cases where Montesquieu concedes that slavery is understandable and even natural, and both are ultimately caused by the climate. The first concerns cases when a person freely chooses to become the slave of a civilian who opposes a ruling despot. Slavery under a just household master is deemed preferable to freedom under a tyrant, making slavery a sensible life choice under such unfortunate circumstances (XV.6, 251). The second concerns labor. Montesquieu hypothesizes that if people are not forced to work in hot places, work will not be accomplished: “the heat enervates the body and weakens the courage so much that men come to perform an arduous duty only from fear of chastisement; slavery there runs less counter to reason. . .” (XV.7, 251). Both of Montesquieu's explanations for natural slavery, then, can be traced back to the determinism of heat, which either predisposes people to despotic government or makes them resistant to labor.

Book XVI turns to another aspect of social and physical determination, domestic slavery, or the servitude of women found in polygamous households of the East, where multiple wives are held in bondage by eunuchs, who run the household for them (XVI.14, 273). As with civil slavery, Montesquieu tracks down the natural causes of polygamy, and he finds them demeaning to women, who are by natural right the equals of men. Once again, the climate is the ultimate source of this slavish phenomenon. In hot climates, women become nubile at a young age (8–10 years) and lose their beauty young (at about 20 years): “thus, childhood and marriage almost always go together there” (XVI.2, 264). The problem is that girls can be married off when they are beautiful but not when they are intelligent because reason does not develop in them until later, when they are no longer attractive. So, little girls become wives and are treated as children in marriage, making a natural inequality between husband and wife unavoidable, perhaps necessary. Thus, “it is very simple there for a man to leave his wife to take another and for polygamy to be introduced” (Ibid.).

As with his explanations for natural slavery, Montesquieu reminds his readers that in all this he does not “justify usages” but only “gives reasons for them” (XVI.4, 267). There are rational, natural explanations for why polygamy is understandable in these hot countries, and yet, Montesquieu does not hesitate to refute polygamy's utility, or deny its morality (XVI.6, 268). The tension between the laws of nature (or scientific, natural reasons) and natural right (or upright moral reasons) looms again. But Montesquieu here emphasizes the supremacy of the natural realm over the moral realm: “Human reasons are always subordinate to that supreme cause that does all that it wants and makes use of whatever it wants” (XVI.2, 265). In the area of sexual domination, the climate exerts a force over human reason and will that seems quite insurmountable. It is the most radical of the climactic effects Montesquieu describes (XVI.8, 269), and it also shows how closely linked social determinism can be to physical determinism.

The brief Book XVII deals again with the topic of political servitude, which Montesquieu already discussed extensively in his chapters on despotism, Part 1. Here Montesquieu mainly emphasizes that “political servitude depends no less on the nature of the climate than do civil and domestic servitude” (XVI.1, 278). The general rule is that peoples of hot climates will be particularly susceptible to despotism because of the cowardice and sloth instilled in the people by the heat. Montesquieu dwells on a case, though, which seems to run counter to his rule: that of northern Asia, including Russia (Muscovy) and China, which being tremendously cold, were still subject to brutally despotic governments. He shows that these apparent exceptions, however, only confirm his rule.Footnote ¹⁷

Book XVIII outlines the determining forces that the terrain can exert. Unlike the previous determinants of Part 3, this is the only one that is not ultimately tied to the climate, and it proves to be the least forceful as well. The general rule that Montesquieu sketches is that people who live in fertile countries will tend to live under despotic rule and care less about liberty than people who live on “inhospitable” lands. He gives several reasons for this. “The fertility of a country gives, along with ease, softness and a certain love for the preservation of life” (XVIII.4, 287). In fertile territories, men would rather submit to the stronger who want to enslave them than stand up and fight, risking their lives (XVIII.2, 286). The second reason these terrains do not nurture liberty is that the very desirability of living in them makes them highly prone to invasions and destruction, conditions that do not favor peace and freedom (XVIII.3, 287). People who live in barren territories, in contrast, must work hard to survive (XVIII.4, 287). Such places will give rise to moderate government because they will nurture moderate, hard-working citizens, accustomed to actively participate in the good of their homeland (XVIII.7, 289). The connection between physical and social determinism persists again.

In the first dozen chapters of Book XVIII, then, Montesquieu continues with the original, guiding theme of Part 3. Unlike the effects that extreme heat has on a people (civil, political, and domestic servitude) (Books XV–XVII), the terrain does not exert such a powerful determining force on human freedom. This is because, unlike the climate, men can have an effect on the terrain and alter it to some degree. Montesquieu praises the hard work that can be put into such an endeavor and notes that it is often likely that men will be forced to work on infertile land because of the frequency with which people will be forced to leave fertile areas (by invasions). However, one might say that it is ultimately the hostile condition of the terrain itself that causes and enables men to change it; and Montesquieu leaves little room for doubt that those who remain in fertile territories will experience political and civil slavery, though the women of such places may be spared sexual domination if the land has a temperate climate. Therefore, the terrain can wield its own particular force over human freedom, but not as radical as that of the climate.

For the rest of Book XVIII, Montesquieu turns to a topic that at first seems quite unrelated to the main thread of Part 3 and to this organizational thesis. The subject is the lifestyle and liberty of the barbarians and savages, those wandering tribes of peoples. This study culminates in an analysis of the Germanic and Frankish barbarians, who, as one learns in Part 2, played a pivotal role in setting the precedent for political liberty (“one will see that the English have taken their idea of political government from the Germans. This fine system was found in the forests” (XI.6, 166).) However, this study is related to the main inquiry of Book XVIII in an important, although negative way: because these barbarians and savages did not constrain themselves to a “limited or circumscribed terrain.” Montesquieu inquires whether these peoples escape political determination by the land by not being attached to it, and the answer is yes. After looking at the effects that the wandering lifestyle had on these societies, Montesquieu shows how the Germanic tribes, in particular, who in many ways were far from civilized and free political government, forged the way toward it.Footnote ¹⁸ Here, human agency promotes social freedom by avoiding one aspect of physical determinism.

So far, I argue that Montesquieu's main theme for Part 3 is the way in which the natural world exerts a determining force over human freedom. So, why does Montesquieu recommend, throughout Part 3, legislative measures aimed to counteract the effects of the natural world? For instance, he recommends that legislators in hot climates encourage activity and work by bestowing honors on the best farmers and awards to those who do their work well (XIV.9, 238). He indicates that citizens should be discouraged from entering the monastic life because there would be a great tendency to turn away from the active life to this lifestyle already (XIV.7, 237); and the last nine chapters of XV discuss what a legislator can do to ameliorate the pernicious effects of slavery.Footnote ¹⁹ Even in XVI, where human freedom looks so feeble in the face of sexual determination by the heat, Montesquieu still insists that the natural laws of defense and modesty be proclaimed loudly by the civil laws (XVI.12, 273). It is true that Montesquieu advocates human intervention throughout Spirit. However, in Part 3, the overall force of physical nature is insurmountable. On closer examination, these measures at best lessen the harsh effects of the climate or terrain, but they do not, in Part 3, allege to overcome them or claim to eradicate the various sorts of slavery involved. The empire of the climate remains “the first of all empires.”

With Part 3, then, Montesquieu shows the great difficulty of the project of securing human freedom from physical determination. At this point, the dialectic between Parts 1, 2, and 3 is most clear. Montesquieu switches from an emphasis on the determining forces of human life to an emphasis on its possible freedoms, and then back to the problem of determination, most forcefully in Part 3. The last chapter of Part 3, however, marks the middle, and turning point, of the work. It is where Montesquieu introduces the “general spirit of the nation,” and it is the place where the deadlock between freedom and determination ceases, and human freedom begins to prevail.

TURNING POINT: PROMOTING FREEDOM WITH MORES, MANNERS, LAWS, AND MAXIMS OF GOVERNMENT: PART 3, BOOK XIX

The breadth of topics Montesquieu covers in Book XIX provides enough material for a number of different levels of interpretation. On one level, however, this book is about initiating cultural and legal change. It is the message most relevant to the organizational thread of the work, and it is the message Montesquieu wants to convey to legislators in particular; in this book, Montesquieu writes more markedly than before for and from the legislative point of view.Footnote ²⁰

Concretely, Montesquieu wants to help legislators bring about cultural and legal changes in the direction of freedom, where possible (Pangle Reference Pangle1973, 192). This is apparent from the general progression of topics. He opens the book on the subject of tyranny and ends on the topic of political freedom, on the effects that free laws have on the mores of the people (XIX.27). The chapters in between these two provide scattered insights into the psychology and legality of social change: when it can be undertaken and how. This general order of topics might have been insignificant if Montesquieu had not stated in the first chapter that “[t]his material is very extensive. In this crowd of ideas that present themselves in my spirit, I shall be more attentive to the order of things than to the things themselves.” Therefore, one can infer that the book is about the transformation political leaders can initiate from tyranny (or traces of tyranny) to greater freedom.

A legislator might believe that the proper way to initiate cultural transformation is by passing new legislation. Montesquieu disavows any such idea. The key to cultural and legal change is to be aware of the general spirit of the nation. “Many things govern men,” he says, “climate, religion, laws, the maxims of government, examples of past things, mores and manners; a general spirit is formed as a result” (XIX.4, 310). Some countries typify a sociable spirit, marked by “an openness of heart, a joy in life; a taste, an ease for communicating its thoughts; which is lively, agreeable, playful, sometimes imprudent, often indiscreet, and which had with all that, courage, generosity, frankness, and a certain point of honor. . . [Athens and France] (XIX.5, my translation).” Other countries have a pedantic general spirit, which is “grave, serious, dry, taciturn” [Sparta and England] (XIX.7, 311).

A legislator is to take his or her cues from the general spirit. When the spirit is not harmful to the principles of government, one must respect and preserve this spirit as part of the very liberty of the people, for we “do nothing better than what we do freely and by following our natural genius” (XIX.5, 310). When the spirit goes contrary to the principles of government, however, a legislator may intervene and try to alter elements of the matrix, always aware of the fact that “to the extent that, in each nation, one of these causes acts more forcefully, the others yield to it” (XIX.4, 310). This last statement is the first and most important guideline for social change. Suppose, for instance, that in a hot climate a legislator worked to harmonize all elements within human control (the religion, the laws, maxims, mores, and manners of a people) so that they all worked collectively against the influence of the climate, in counterreaction to it. The climate would have a more formidable opponent, and it would, by Montesquieu's prediction, “yield” more to the influence of the other forces than when these acted independently or in discord. Montesquieu begins to reveal the formula for freedom in a determined world: there is a kind of metasystem of powers, checks, and balances, at work in the realm of human causes and laws. A number of causes and laws govern men —not just physical causes—but also social, moral, political, and historical causes. The key is for men to heighten the role that these other causes (or orders of law) have in human life, so as to downplay or check the force of the physical laws, establish a new equilibrium of forces, and thereby promote human freedom. This is the ultimate purpose of understanding the spirit of the laws, and it helps explain the title of the work.

Montesquieu continues to lay down the cardinal rules that guide cultural and legal change, including the norm that the laws of society must always follow the mores (XIX.21–26, 321–5), that the mores of the citizenry should encourage human activity and initiative (XIX.9, 312), that mores and manners should be changed by other mores and manners (not by laws), and that mores are changed quite effectively by women (XIX.8, 12, 14, 311–16), among others. Once social reform has been brought about to manners and mores, legislators finally may pass laws that better fit the new manners and mores, which now better support political freedom (XIX.21–26).

All in all, Montesquieu shows in Book XIX how a legislator can affect half the forces that form the general spirit of the nation: manners, mores, laws, and maxims of government. The positive response a people can have toward the climate and terrain is forthcoming (Part 4); the influence that the legislator can have on religion comes in Part 5; and although examples of past things are out of the legislator's hands, Montesquieu shows by his constant return to the example of the Romans, and to the origins and history of France's own laws in Part 6, that a legislator must be attune to his or her country's heritage before proposing changes. Therefore, in Book XIX, Montesquieu reveals his strategy: other forces can make the climate yield to their influence so as to promote human freedom. So, from now until the end of the work, Montesquieu will work out the way in which those other forces and orders of law can be garnered to do so.Footnote ²¹

It is at the end of this important book that Montesquieu suddenly returns to the topic of the free regime, which he had abruptly suspended at the end of Part 2 in order to revisit the problem of physical determination. Here at the end of Part 3, he focuses on the character of the free nation (XIX.27, 325), and on how the laws of the free regime influence the mores and manners of its people. It seems that Montesquieu has reserved this discussion of the free regime for the very end of Part 3 so that its extreme freedom might be more drastically juxtaposed to the deterministic point of view of the rest of Part 3, in accordance with his dialectical pattern.Footnote ²² Furthermore, Montesquieu hyperemphasizes the free character of the political institutions, the laws, mores, and manners of the free regime by organizing the paragraphs of chapter 27 in a way that mirrors each part of Spirit.

After a brief introduction, Montesquieu dedicates paragraphs 4 to 20 to the topic of the passions (or principles) that the political laws of the free regime would bring about. This echoes his account of the structure and principles of the archetypes in Part 1. Paragraphs 21 to 28 turn to the liberties enjoyed by citizens of the free regime, the financial sacrifices they would make to preserve such liberty, and the freedom from war that these people would be likely to cherish. These paragraphs mirror Part 2, on political, civic, and financial liberty, as well as offensive and defensive force internationally. Paragraphs 29 to 44 discuss the commercial activities typical of the free regime. These foreshadow Montesquieu's discussion of commerce in Part 4. Paragraphs 45 to 51 turn to the role of religion in the free regime, reflecting the forthcoming Part 5, which deals with the topic of religion broadly, including the relationship between church and state that societies ought to have. Montesquieu devotes the final 20 paragraphs of chapter 27, however, to the task of reminding his readers just how different the English (Spartan) spirit and manners would be from the happy, sociable ones of France (and Athens). Book XIX ends, then, with a bittersweet appraisal of the spirit of the free nation. Montesquieu appears to have his French readership particularly in mind here. For he has gestured toward the steps that can be taken to bring about greater political and civil liberty, but he also suggests that if the French choose the extreme English spirit of freedom, they would pay the price of losing their gay and sociable humor, among other qualities.Footnote ²³ The politics of liberty would both create and require that its citizens have the passions of the English: self-centered, fearful, uneasy, satirical, and proud. Unlike the social and easygoing, comical and chivalrous French, the citizens of the free regime would tend toward cynicism and satire: “one would see many Juvenals among them before finding a Horace” (XIX.27, 333). The final paragraphs raise the question whether the French are not better off in their traditional monarchical form than in the English form, which foreshadows the theme of Part 6.

Notably, in these paragraph clusters, Montesquieu skips over the theme of Part 3 (determination by the climate and terrain) of which Book XIX is a part. This suggests that chapter 27 is the metaphorical epicenter of the work. Up to now, the parts of Spirit have been organized dialectically, or antithetically.Footnote ²⁴ This chapter incorporates all parts and passes over the threat of physical determination, as if to reclaim the previous parts for the advancement of freedom. The significance of the mores and manners of a free people is highlighted in this way because it is the practical starting point for the transformation of a society toward freedom, and because it is the most important set of factors to preserve and result from political liberty.

Book XIX marks the end of a dialectical tension, and it is, as Schaub (Reference Schaub1995) argues, a transitional book: it “occupies a very crucial position in Spirit. Coming at the end of Part 3, it serves as the link or fulcrum between nature and commerce. Somehow the subject of book XIX, the general spirit, is the key to the successful movement from despotism to liberty” (138). After XIX, Spirit follows a different path. No longer a back and forth between two antitheses, the force of the climate has been taken into account and incorporated into the project of advancing human freedom, which continues until the end of the book. From this point forward, everything has to do with promoting liberty. Montesquieu seems to assume that we have followed the dialectical conflict that has been going on. The goal from Part 4 onward is to work out the particular ways in which liberty can be enhanced in and by other spheres, in economic, reproductive, and religious spheres. Although Montesquieu continues to speak about the other archetypes after Book XIX, it is to offer advice on how to promote the conditions and effects of liberty to the extent they are capable.

PROMOTING FREEDOM WITH COMMERCE: PART 4, BOOKS XX–XXIII

Part 4 can be understood as the start of a new beginning. There are two poetic gestures to signal this. In the last lines of XIX.27, Montesquieu explains what kind of poets would exist in free regimes as opposed to those in monarchies: “[The free regime's] poets would more often have an original bluntness of invention, than a certain delicacy of taste; one would find there something closer to Michelangelo's strength than to Raphael's grace” (333). Although a comparison between English and French poets, this is likely a self-reference as well. It is similar to the end of Montesquieu's prefatory remarks, where he had compared himself to Corregio, who, on seeing Raphael's graceful St. Cecilia, had declared, “And I too am a painter”(Preface, xlv). In writing Spirit, Montesquieu has tried to imitate Raphael. Perhaps it is no coincidence that these veiled self-references to Raphael occur just twice in the work, each time just before the start of a new beginning.Footnote ²⁵

The second gesture is the quotation from Virgil at the start of Book XX: “That which great Atlas taught.” The Titan Atlas was forced to bear the weight of the sky on his shoulders, but he was also the god responsible for instructing mankind in the art of astronomy, which sailors used for navigation, and farmers used to calculate the seasons. This reference evokes the idea that nature itself will be a source of human understanding and liberation from the forces of the climate and the terrain. It reaffirms that Spirit takes on a new attitude toward the physical world from this point on. It is also noteworthy that Virgil is the only other figure, besides Raphael, cited by Montesquieu in his prefatory remarks, and that Montesquieu closes Spirit with a quotation from Virgil. That Montesquieu has placed references to Virgil at the beginning, middle, and very end of the work is highly suggestive. He may see himself as a modern Virgil, one who writes about the origins and greatness of the Romans, while leaving them behind so as to forge the way toward a new era of political greatness (Gay Reference Gay1973, 94–126).Footnote ²⁶

The conquest of water and land by the art of sailing are major themes of Part 4. Montesquieu invokes the theme of water throughout, first in chapter 1 (“I should like to glide on a tranquil river; I am dragged along by a torrent”). Commerce is not possible without trade, which requires domination of the seas, as well as the reaching of new continents by human initiative and skill. The various books of Part 4 argue that commerce is a rational science that follows its own laws and principles, and also an endeavor that can advance the three dimensions of human freedom (physical, social, and intellectual freedom) when properly engaged.

In Book XX, one sees the positive effect commerce can have on social freedoms. Montesquieu explains the nature of commerce; distinguishes between its two main types, economic commerce and the commerce of luxury; and argues that commerce promotes domestic and foreign (“internal and external”) peace and freedom. First, citizens who engage in commerce increase their regard for exact justice (XX.1, 2, 338–9), and so are much less likely to steal from each other and fight internally. Second, nations that trade with each other are less likely to go to war because they become mutually dependent (XXI.1, 2, 338). Thus, commerce responds to the challenges to social freedom in Book I: war within society, and war with other societies.

Book XXI is a history of the ebbs and flows of commerce, and of “the revolutions” it had on the world. Here Montesquieu shows how commerce promotes freedom from physical determination. He begins with the ancient commercial history of the Assyrian, Mede, Persian, Egyptian, and Greek empires, and argues that the exchange developed slowly in their hands because trade routes were usually on land, and when sailing was employed, techniques and tools were relatively poor. Alexander the Great was the first to unleash the real power of commerce in the ancient world. He explored not simply for the sake of conquest or discovery, but for establishing communication and commerce, connecting countries, and enriching homelands. He cleared out rivers to make them fit for passage, established ports, and set out to connect the East and the West by linking the Mediterranean Sea, Tigris, Euphrates Rivers, and Persian Gulf together (XXI.8, 365–6) (Volpilhac-Auger Reference Volpilhac-Auger2002). Alexander exemplifies the way to advance commerce and show command over the physical world. And Montesquieu shows that commerce provides powerful incentives for mankind to surmount the physical barriers that surround them because men must be resourceful and cunning to reach foreign lands. They must invent new tools and techniques to dominate rivers and oceans (compasses, superior boats, sailing techniques) to overcome nature and increase their freedom from physical constraints.Footnote ²⁷

Finally, Montesquieu shows how commerce promotes intellectual freedom, or freedom from subrational determination and prejudice. He continues his history with the commercialization of Egypt, Africa, and the lost commercial opportunities of the Carthaginians, and then dwells on the Roman Empire. As opposed to Alexander, the Romans’ penchant for conquest and destruction rather than preservation for the sake of gain was a mark of their dim intelligence toward commerce in general. Montesquieu devotes two chapters to the “genius” of the Romans for sailing and commerce.Footnote ²⁸ Because the Romans did not care for the art of sailing, which they considered to be inferior to fighting firmly and courageously on land (XXI.13, 380), they also cared little for commerce. Therefore, with the Roman conquest, history saw a pause in the advancement of commerce, and after the fall of Rome, commerce virtually died out.

Then, when during this dark period of European commercial history, the philosophy of Aristotle arrived—with its criticism of money-making through interest—it confirmed in the Scholastics’ minds that the Gospel was right about usury, thereby further eliciting condemnation by the Christian world. However, commerce found a way to survive and develop in the hands of the Jews living in Europe. As a result, the Jews were persecuted for their views on money-making and were forced to develop the tools of their trade clandestinely, inventing letters of exchange and saving their money privately in a variety of different countries (XXI.20, 389). By such ingenuity, commerce was able to reestablish itself slowly, and its reputation and popularity grew, which eventually forced the theologians to “curb their principles” (Ibid.). Commerce not only survived, but also moderated the theological teachings that had persecuted it and the Jews. The rules of the exchange were established around Europe and served as suprapolitical checks on national power. Thus, Montesquieu shows how the development of commerce can promote intellectual freedom, curb irrational prejudice, and advance international peace and freedom.

Montesquieu ends his history with a discussion of the universal commerce established after the discovery of the Americas (XXI.21, 390–3). On the whole, Montesquieu sees this as a positive development because it brought about the establishment of rules and laws to govern the exchange among more nations of the world. His optimism toward universal commerce is tempered, however, by what he calls “a problem” in the last chapter, namely, the downfall of Spain. The sudden abundance of gold and silver brought to Spain from the New World caused inflation at home, the devaluation of money, and, eventually, great poverty. The Spanish case poses a challenge for Montesquieu's theory of commerce because of his emphasis that nations will enjoy great freedom by advancing the exchange. His rejoinder is that Spain mismanaged her wealth. Her demise could have been avoided had her leadership been aware of the rules of economics. This launches Montesquieu into a new book (XXII), where he explains those laws and principles. The intricate economic theories of Book XXII are Montesquieu's effort to defend his theory of commerce from the challenge Spain poses.

In Book XXIII, Montesquieu turns to the subject of procreation and the institutions of sexuality. Montesquieu deals with sexual commerce here, at the end of Part 4, because advanced commercial societies foster social ideas and economic conditions that directly influence, and raise problems for, sexual behavior and reproduction (XXIII.10–11,15, 433–6; VII.14, 109).Footnote ²⁹ In this book, Montesquieu diagnoses the challenges to reproduction and outlines what steps might be taken to promote it, so as to advance an ordered sexual freedom.

He opens with the first lines of Lucretius's De Rerum Natura, invoking the goddess of love and praising the force of sexuality in nature. It is noteworthy that Montesquieu cites Lucretius, one of the first in the history of philosophy to defend physical determinism. Lucretius' poem declares that Venus, and Venus alone, “rules the world of nature” and that her force is particularly evident in the animal kingdom, where propagation follows its natural course, according to predictable rules and patterns. Montesquieu points out, however, that among humans, reproduction is not so simple. Men and women add their own ideas and desires to the mix of forces that propel them to reproduce: “the way of thinking, character, passions, fantasies, caprices, the idea of preserving one's beauty, the encumbrances of pregnancy, [and] that of too numerous a family, disturb propagation in a thousand ways” (XXIII.1, 427).Footnote ³⁰ Moreover, because each society has reproductive needs, a legislator cannot allow citizens to act as Venus and the passions bid. Rationality and science must replace passion and poetry. Lucretius is left behind.

Subsequently, Montesquieu outlines what one might call his sociology of reproduction, identifying the various factors that encourage or deter a people from marrying and having children. These include religious teachings (XXIII.16, 437), political conditions (XXIII.11, 28; 433, 454), demographic factors (XXIII.12, 434), work conditions (XXIII.14, 435), and socioeconomic factors (XXIII.10–11, 15). The most significant of these is the last. As a general rule, those who live in primitive societies and conditions do not usually regard having many children as an encumbrance because they do not live in luxury, and mostly can provide what they need through the family's work (XXIII.11, 15, 433, 436). In commercially advanced societies, however, where the market and the arts are developed, higher standards of living and luxuries are made more available to the wealthy and the wider population. Work is divided and becomes specialized, making it difficult for individual families to provide what they need, thus making the prospects of having many children unappealing. This is why Montesquieu tackles the issue of reproduction on the heels of his books on commerce. If the advancement of commerce significantly discourages reproduction, then it destabilizes the society it seeks to serve, threatening its survival, a basic condition for freedom. Montesquieu is manifestly concerned about the depopulation of Europe, and stresses that legislators and leaders must take swift action when reproduction rates are low (XXIII.16, 19–20, 437, 439–40).Footnote ³¹ Thus, his sociology of reproduction aims to promote social stability and liberty within the context of commercial affairs.

PROMOTING FREEDOM WITH RELIGION: PART 5, BOOKS XXIV–XXV

Books XXIV and XXV turn to the subject of religion. Of the variety of topics Montesquieu will touch on, two main themes emerge as salient to the organization of Spirit. The first theme defends the place of religion in politics for the promotion of freedom, and the second is a study of the ways in which religion should be regulated to fit political circumstances and state needs. The first theme strikes a more friendly note toward religion, and the second, a more regulatory one. By these two themes, Books XXIV and XXV show how a state's religion(s) should be made to harmonize with the needs of the state, and thereby advance the liberty of the citizens rather than obstruct it.

In Book XXIV, Montesquieu rejects the idea that it is preferable for a state to advance no religion, or even atheism, than to advance a false religion. Instead, he lists two primary reasons why “it is quite useful for one to believe that god is” (XXIV.2, 460). First, religion offers despotic princes and hot-headed citizens motives for restraint out of the fear of repercussions in an afterlife. Second, moderate religions encourage their followers to be sensitive to the natural rights and obligations of their fellow neighbors, so that they have supralegal incentives to be good citizens. Christianity stands out in this regard (XXIV.3, 6–7), but Montesquieu also highlights the Pegu people (XXIV.8, 465), the Essenes (XXIV.9, 465), the Gherbers (XXIV.11, 467), and his personal pagan favorites, the Stoics (XXIV.10, 465), as all having advanced teachings in accordance with the fundamental natural law, natural right, and morality, which he sees as necessary for advancing the fullness of ordered liberty. Therefore, Montesquieu is not anti-Christian nor is he against religion generally in Spirit.Footnote ³² The first theme of Book XXIV is a defense of the way in which religion, and especially Christianity, advances political order. The second theme builds on that defense, noting the more specific ways in which religion should be adapted and regulated to fit political needs. So, although the second theme does strike a more regulatory note toward religion, it should be taken in light of his general approval of the role religion plays in politics and how it promotes internal peace and social freedom.

Among the many ways in which Montesquieu believes religions should fit their political place, he specifies that the religion of Islam is suitable for despotic governments, whereas the Christian religions are appropriate for moderate regimes (XXIV.3, 461), with monarchies most suited to Catholicism and republics (democracies and aristocracies) better suited for Protestantism (XXIV.5, 463). In addition, religions should conform to local needs. They should encourage people to live active, not overly contemplative, lives (XXIV.11, 466); the number of holidays and days of rest should be different in hot and cold climates (XXIV.23, 475); and views about the afterlife should encourage citizens to behave well in this one, so that beliefs in heaven and hell are preferable to teachings about predestination or divine determinism (XXIV.19, 21, 472–4). With recommendations such as these, Montesquieu tries to garner the power of religion against the forces which undermine human freedom.

In Book XXV, Montesquieu looks at religion itself as a possible source of disregard for human freedom, in particular, the external conduct, or “police,” of religions, the way in which they deal with nonmembers. Because of the common tenet that god favors believers and rejects those who reject him and his true religion, people of faith often have a vexed relationship with those outside their flock. Therefore, Montesquieu studies the ways of proselytism. His most noteworthy exhortation is for religions to conform to the standards of natural law and natural right as they proselytize, especially the duty of toleration (XXV.13, 490). Persecutions, threats to life, sexual modesty, confiscations of private property, and forced conversions are all unacceptable means for converting others (XXI.20, 387; XXIV.13–15, 490–2). Here Montesquieu imposes rules and regulations on religion to ensure it respects and promotes social and intellectual freedom.

Taking both themes together, Montesquieu advises that religion(s) and the state should work together because both have a shared end, “to make good citizens of men,” even if the scope of that end is more far reaching for religion than it is for the state. When one or the other is not working cooperatively, the other must make up for the deficiency (XXIV.14, 15, 468). Working in tandem in this way will simplify the civil code, eliminate redundancy in areas where religion already exerts an effective influence, and facilitate political rule (XIX.22, 322, XXIV.16, 470).Footnote ³³ Therefore, as Rebecca Kingston (Reference Kingston, Carrithers, Mosher and Rahe2001) argues, Montesquieu sees the ideal to lie in a regulated harmony between church and state, not a separation or antagonism between them. It is also true that Montesquieu believes religion should be put into the service of the state—but if the state is properly ordered, he believes that this should not be a threat to a properly ordered religion (i.e., those that observe the basic tenets of morality). Montesquieu aims to put into harmony the institutions of religion, the requirements of natural law, natural right, and the needs of each particular state to advance physical, social, and intellectual freedom.

With the conclusion of the books on religion, Montesquieu accomplishes what he set out to do in Book XIX, namely, to show how a society and its statesmen can influence the forces that form the general spirit of the nation. He has shown how to inspire mores, manners, new laws, and maxims of government; how to gain some measure of sovereignty over the climate and terrain by means of navigation and commercial activity; and how to organize religious behavior and institutions to promote liberty. At this juncture, therefore, Montesquieu can conclude his main theoretical project, and turn subsequently, in Part 6, to the task of applying his theory of liberty to the case of France.

A CONCLUSION: PART 5, BOOK XXVI

With Book XXVI, Montesquieu brings closure to the universal project of Spirit, although it is not the end of the work. Whereas the first 26 books outline a political theory applicable to all peoples and nations, the last five books are written primarily for his French audience, and will aim to apply the teachings and mission of Spirit to his home country (Cox Reference Cox1983, Preface, 4). Moreover, Book XXVI reads like a conclusion. It has the tone of an architectonic synopsis and hearkens back to the opening theme of Book I, the different orders of law by which men are governed.

In Book XXVI, as in Book I, Montesquieu takes a step back to summarize the different orders of law that govern men, although there are important differences between the two summaries.Footnote ³⁴ The difference most relevant to this design thesis is that in Book I, Montesquieu emphasizes the consistency and strength of the physical laws of creation, whereas in Book XXVI, he does not even mention these laws. The reason is that, by this point in the work, Montesquieu has achieved his strategic plan from Book XIX. He has shown that men do not have to be governed so strictly by the physical laws, but can govern themselves by moral, religious, sociopolitical, and positive laws, which are elaborated in the new list of Book XXVI. This is the ultimate purpose of understanding the spirit of the laws, to learn how to heighten the role that these other orders of law play in human life, so as to promote freedom. Therefore, Montesquieu focuses on these orders and advances two main theses: that legislators and statesmen must understand what kinds of matters belong to which order of law, and closely related to this, that statesmen must not govern by one order of law the things that should be governed by a different order, or ruling principle (XXVI.1, 494). Thus, he provides a synopsis and draws conclusions about the relationships these orders of law ought to have with each other, all topics appropriate for a conclusion. The last lines of this book, however, are not meant to be the final words of the work. Montesquieu turns next to the task of applying his theory to the particular historical circumstances of France.

PROMOTING FREEDOM IN FRANCE: PART 6, BOOKS XXVII–XXXI

There has been much debate over the last five books of Spirit, Books XXVII to XXXI.Footnote ³⁵ As Cox, Carrese, and Rahe suggest, however, the most reasonable approach is to read Part 6 at face value, as an integral part of the work, reading the books in the order in which they appear and taking the last lines of Book XXXI as the last lines of the work.Footnote ³⁶ Reading Part 6 in this way is compatible with the macrodesign of Spirit. In addition, I argue that Part 6 has its own discernible substructure, or microdesign.

Part 6 fits into the macrodesign of Spirit because it is reformist in aim. Montesquieu hopes to inspire liberal reforms in France: away from the absolutist monarchy of his day and toward a moderate monarchy. Footnote ³⁷ This part is often referred to as the “historical books” because XXVII, XXVIII, XXX, and XXXI trace the historical origins and evolution of various customs and laws. However, these historical studies are actually reformist in purpose because Montesquieu believes proper legal reform can take place only after a legislator understands the history and origins of his own laws, which Montesquieu undertakes in these four books. The one book that is not a historical study (Book XXIX) is also reformist in motive, insofar as it aims to show legislators how to properly interpret and compose the laws.

As for the structure of Part 6 itself, there is an implied symmetry to the five books, which puts the role of the legislator at the center of change (2 books on civil law, 1 book on the composition of laws, and 2 books on political law). Moreover, I argue that the order of the topics communicates the main thesis: that there is a connection between land distribution practices, civil law, and political law. The main message of Part 6 is that if French legislators want to bring about liberal reforms to the French monarchy, then they must first bring about civil reforms in land distribution practices between the sovereign and the nobles.

The first of the two books on civil law, Book XXVII, is a history of Rome's inheritance laws and land distributions, but Montesquieu draws an important connection to France. The main argument is that the civil laws pertaining to land distributions had an effect on the political form of government there, and vice versa. Montesquieu explains that when Rome was a republic, it was proper for the laws to enforce an equal division of lands. The Voconian law, in particular, disqualified women from inheriting lands in an effort to prevent excessive wealth. “These laws were very much in conformity with the spirit of a good republic, where one should make it so that this sex cannot avail itself, for the sake of luxury, either of its wealth or of the expectation of wealth” (XXVII.1, 531) Over time, however, mores and legal practices changed, unequal divisions of land were made, and opulence entered the city, making monarchy the appropriate form of government there. This, in turn, required complete reform of land distribution laws. “Thus, when the monarchy was established in Rome, the whole system of inheritances was changed” (XXVII.1, 531). His thesis is that there is a connection between land distribution practices, civil laws, and political law. The Romans had exemplified this principle, and Montesquieu confirms it later in French history.

The second book on civil law, Book XXVIII, describes three periods in the evolution of French civil law. What is most relevant to highlight is that the two principle causes of transition from one period to another were land distribution practices and legislative actions. In the first period, during early French society, there were two main sources of law: the German conquerors, who brought to France a variety of customs and codes, and the vanquished Romans, who lived by Roman right. Montesquieu describes the great variety of Germanic laws in circulation at the time and explains that these conquerors were “far from even dreaming . . . of putting uniformity into the laws” (XXVIII.2, 535). During this first stage, then, there was a heterogeneous rule of Germanic and Roman laws throughout the kingdom (XXVIII.1–8, 532–43).

The turning point, or revolution, came at the end of the Carolignian reign, when fiefs became hereditary. “As fiefs became hereditary and under-fiefs were extended, many usages were introduced to which these laws no longer applied . . . [and] France was divided into an infinity of small lordships . . .” (XXXVIII.9, 543–4). Thus, during a time in which there was no unified rule of law, there developed a disunity of jurisdictions, which further disintegrated the rule of law. The Norman invasions worsened the situation by bringing illiteracy to France, so that “written laws returned to unwritten usages” (XXXVIII.11, 545). At this point the second period began, during which customs reigned in place of laws.

Montesquieu describes the rise of judicial combat during this time, a method used to settle disputes by fighting or by providing proof of courage or honor. Although this system arose from the spirit of the Germans, it further developed its own method and technique, which Montesquieu describes in great detail (XXXVIII.13–29, 548–77). The essential point is that with the domination of this system, there was no perceived need to return to the rule of law. “Such a nation had no need of written laws, and its written laws were quite easily eclipsed” (XXXVIII.19, 558). The revolution came with Saint Louis, who abolished judicial combat within his courts (XXXVIII.29, 578). This triggered a number of changes: proceedings began to be written down, deliberations became secret, appeals became more frequent, and public prosecutors came into existence, among other changes (XXXVIII.29–36, 578–88). Then, Justinian's Digest resurfaced in Italy; enthusiasm for Roman law spread to France, and “Roman right appeared to be reborn” (XXXVIII.42, 596). Schools began to teach Roman law, and an art of procedure and jurisprudence developed. Thus, judicial combat was replaced by written proceedings, and the various different customs of France began to be written down, which “served well the rebirth of our French right” (XXVIII.44–5, 599–600).

“Next came the great period” or the third stage, during which Charles VII put into writing the various local customs of the kingdom and prescribed general rules for their observation (XXXVIII.45, 601). The eventual product was a unified code of French civil law, a system that combined both Germanic and Roman mores and laws. At this point, Montesquieu closes his civil history book. He summarizes the origins and history of French civil laws and identifies the two main causes of transition: (1) the division of lands into independent feudal jurisdictions, which played a key role in the decline from the first to the second periods; and (2) the legislative actions of Saint Louis, Charles VII, and other legislators, who played a key role in unifying the civil law system. The first cause repeats a theme from the previous book: that there is a connection between the division of lands and the rule of civil law. The second cause introduces a new theme: that the role legislators play in promoting legal changes is an important one. This topic launches Montesquieu on the next and middle book of Part 6, showing there is a logical order of the books so far.

Book XXIX, “On the Way to Compose Laws,” is on one level a continuation of the previous book. Montesquieu has just shown the way in which a national jurisprudence arose out of a heterogeneous, piecemeal mix of German and Roman customs and laws. Now he offers straightforward advice on how to continue the historical work of developing a coherent legal system for France. This book is also the midpoint of Part 6, and as Montesquieu did in the midpoint of Spirit (Book XIX), he emphasizes the importance of the role of the legislator. Concretely, the legislator must have a “comprehensive genius” in three areas. He must embody the correct spirit: one of moderation and prudence, of awareness of personal prejudice and bias (XXIX.1–2, 16, 18); and he must understand how to interpret and understand standing law: by paying attention to the motives and intent of previous lawmakers, of the ends, means, and circumstances of the law, and the relationship each law has with other laws (XXIX.3–6, 8–15); and he must understand how to properly craft new laws: with simple, concise, and precise language, among a number of other considerations (XXIX.7, 16). All in all, Montesquieu calls legislators to understand the importance of their art and role to encourage them to bring about legal reforms in France. Next, Montesquieu turns to the two books on French political law.

As Cox (Reference Cox1983) argues, Book XXX proves that historically France was an example of the moderate monarchy put forward in Part I, a monarchy that shared power between the monarch and the nobles (29–33). What I highlight is how central land distribution practices were, once again, for this political outcome. Montesquieu describes how during the origins of French society, each German prince was surrounded by a troupe of loyal soldiers, whom he rewarded with gifts, such as horses, weapons, and food (XXX.3, 16, 620, 640). Eventually, when these princes acquired land from the Romans, they began to give their soldiers gifts of land, or fiefs. At first, these lands were only temporary gifts, revocable to the prince after some time, but eventually they were given for life (XXX.16, 641). By such gifts, the soldiers became lords, or leudes, and Montesquieu shows that with the gift of royal lands came important powers.

First, these lords enjoyed military power because they were responsible for leading their undervassals to war (XXX.17, 641). But because this duty involved collecting material provisions for war from freemen, it entailed the power to collect payments and to judge whether they had been made. Thus, each lord enjoyed judicial power, or civil jurisdiction, over his fief as well (XXX.18, 644). The power to render justice in turn gave the lords a right to collect the fredum, or tax that criminals paid to receive protection from the offended parties (XXX.19–20, 646–54). Altogether, the lords enjoyed military, judicial, and fiscal power over their territory—and Montesquieu emphasizes that the king's officers and justices did not have jurisdiction over these fiefs (XXX.20, 652). The king held power to the extent that he held royal lands, allowing him to enjoy military, judicial, and civil power over his domains (XXX.13, 635). Therefore, the system of government that came to dominate among the Franks, a monarchical form of government that shared power between the king and the nobles, hinged on the division of lands. Power over land meant political power.

In the last book of the work, Book XXXI, Montesquieu takes this thesis further, showing that not only was political power shared between the king and the lords, but also that there was a competition, or balance of power between them, with the divisions of land once again at the center of these power struggles. To prove this, Montesquieu highlights three periods of French political history when the balance was disturbed, triggering a revolution (Cox Reference Cox1983, 33–40). The first disbalance took place during the rule of Queen Brunhilda, who arbitrarily revoked the fiefs of the lords in an attempt to redistribute them at her will. “[T]he leudes and the great officers believed themselves ruined; they brought about her ruin” (XXXI.1, 669–71). The nobles reacted violently, killing Brunhilda, and reform was brought to the kingdom by way of Clotaire, who returned to the nobles their lands and issued reforms to redress their grievances (XXXI.1, 672–4). The first revolution bolstered the power of the nobles by securing their lands.

A stable balance of power was not achieved, however, and during the next period, too much power was ceded to the nobles. One of Clotaire's reforms had been to allow the lords to select the person who would administer the palace. Over time, this mayor came to have great power, serving as the real head of the monarchy, with the king serving only a ceremonial role (XXXI.3–5, 675–9). The mayor, who was beholden to the lords for his election, bestowed them favors, most notably the granting of their fiefs for life. Then, the king began to follow suit, and with such actions, a number of fiefs became hereditary, so that lands were alienated from the domains of the monarchy. With this loss of royal land, to which were attached state offices, the monarchs relinquished great powers to the nobles (XXXI.7, 681). Thus, the monarchy was weakened, both by the office of the mayor of the palace and by the alienating of lands from the monarchy. The moment of revolution came when Duke Pepin, mayor of the palace for Austrasia, defeated King Theuderic III in battle. This resulted in Pepin's mayorship over the entire realm and the transfer of power from the Merovignian to the Carolignian family.

During the third period, Montesquieu describes in detail how Charlemagne strengthened the power of the monarchy for a time, but that in general, the Carolingians oversaw the weakening of the monarchy by a number of successive actions: freemen were offered rewards for changing their allods into fiefs, increasing the number of lords and extending feudal government at the expense of political monarchy (XXXI.8, 682–3); the church was given lands and property that once belonged to the ruling house (XXXI.9, 684); Louis the Pious divided the lands of the kingdom among his sons (XXXI.20, 699), gave fiefs to nonnobles, and “dissipated its domains” (XXXI.22, 702); and Charles the Bald declared that lands of counts, and fiefs, could be passed to heirs (XXXI.25–8, 707–13). The net effect of this alienation of land was a decentralization of power that verged on anarchy: “The inheritance of fiefs and the general establishment of under-fiefs extinguished political government and formed feudal government . . . . The kings, deprived of their domains . . . were at [the nobles'] mercy” (XXXI.32, 716). The third revolution took place when the crown went to Hugh Capet, who possessed the two greatest fiefs of Orleans and Paris. “When Hugh Capet was crowned king, things changed, because a great fief, united with the crown, brought an end to anarchy” (XXXI.16, 695).

Therefore, Book XXXI teaches that all three political revolutions were set off by periods of major inequality in the divisions of lands and property. Montesquieu's message to his contemporary French legislators seems to be to focus on property law reforms, as the first step toward preventing revolution, promoting political reform, and ensuring a more moderate monarchy. Montesquieu stresses this message in the last two chapters of the book (XXXI.33–4), where he repeats the thesis that civil law trends affect political law trends, the lesson he drew in Book XXVII. This shows that all five books of Part 6 are connected logically, and together convey his message to French legislators and statesmen: to keep their eyes on land and property reforms as a means toward political reforms.

This final message also helps explain the last line of the work, “‘Italiam, Italiam,. . . .’ I close the treatise on fiefs where most authors have begun it” (XXXI.34, 722). The quotation is from Book III of the Aeneid, when Aeneas and his shipmates first catch sight of land, one of them yells for Italy. Although Aeneas and his crew still have a long way to go before settling in Latium, they have seen the desired destination with excitement. Montesquieu has also seen the desired destination, a moderate monarchy for France, and although the journey is far from over, and Montesquieu stops the work in medias res, he hopes French legislators will continue this journey, keeping their eyes on the land, and seeking a course of moderate power sharing between the monarch and the nobles, so as to bring about greater civil and political liberty to France. Thus, Part 6 also promotes the project of liberty that organizes the second half of this dialectical work.