Introduction
Comparisons to Jean-Jacques Rousseau constitute one major paradigm among Adam Smith scholars.Footnote 1 By comparison, Smith’s engagement with Montesquieu has received less attention. Recently, however, this situation has changed, and some attempts to compare Smith and Montesquieu have been revived.Footnote 2
The great influence of Montesquieu’s writings on the Scottish Enlightenment is well known.Footnote 3 In particular, comparisons have been made with David Hume, who was influenced by Montesquieu’s writings but also strengthened his own position through serious criticism of Montesquieu, and with Adam Ferguson, who was a passionate admirer of the French jurist and could be considered a good successor to his ideas.Footnote 4 In contrast to the two who explicitly mention Montesquieu (even when criticizing him), Smith’s direct references to Montesquieu are less numerous and less enthusiastic. Smith is also a good reader of Montesquieu’s The Spirit of the Laws and is particularly interested in its legal-historical approach, citing Montesquieu in his Lectures on Jurisprudence. However, references to him are mostly as a source, and direct commentary on his theory is rare, though not absent. The same is true of An Inquiry into the Nature and Causes of the Wealth of Nations, where Smith quotes Montesquieu and his works in only four places.Footnote 5 These four references are about the reason for the high rate of interest among Muslims (WN I.ix.17), the cause of the lowering of the rate of interest in Europe (WN II.iv.9), the demonstration that the labor of free men and women was more productive than that of slaves (WN IV.ix.47), and the positive role of music in ancient Greek education (WN V.i.f.40). These references are more source citations than theoretical commentary. There are apparent similarities between these two theorists, such as evaluation of the development of commerce, skepticism regarding policies that consider foreign trade as an aggressive zero-sum game in pursuit of national interests (a mercantilist policy, in Smith’s terminology), anti-slavery arguments, and a new perspective on society and history as a complex system in which the pursuit of self-interest in a society may unintentionally result in benefits for society as a whole. However, Smith does not mention his predecessor’s name in relation to these issues.
On the other hand, Smith and Montesquieu disagree sharply on some issues. The former criticizes feudal society, while the latter finds potential in it. Smith does not explicitly criticize Montesquieu on this point, but this relative modesty does not imply that Montesquieu’s social philosophy was of little importance to Smith. If Smith is a “scientific Whig,” as Duncan Forbes points out,Footnote 6 then the empirical and historical facts that support the theory would be of far greater value than empty ideologies that are not based on facts. Smith actively embraces the empirical and historical facts that Montesquieu had selectively gathered based on his own viewpoint and built on that foundation to support his own arguments. Both thinkers were engaged in the same theoretical task, which is why The Spirit of the Laws was a trustworthy source for Smith. Of course, the same facts do not always lead to the same conclusions. It is important to clarify what theories they each developed while working from the same factual perceptions. By examining Smith’s argument through the lens of Montesquieu, it will be possible to identify key characteristics of Montesquieu’s political theory as well as that of Smith.
What, then, is the common agenda between Smith (especially in the Wealth of Nations and Lectures on Jurisprudence) and Montesquieu? I take this to be the question of what political liberty means in modern Europe. Although there is the awkward problem of Hume’s interposition between Smith and Montesquieu, there is much to be gained from a direct comparison of their arguments on liberty, as we will see below. Although there is general agreement that Smith and Montesquieu belong to a current in political theory that can be called liberalism,Footnote 7 this essay compares their views on liberty rather than directly introduce the controversial and broad concept of liberalism. By starting there, we can deepen our understanding of the conditions that constitute a liberal society.
The structure of liberty in Montesquieu
First, I demonstrate how liberty is discussed in Montesquieu’s The Spirit of the Laws. It is important to note that, for Montesquieu, liberty is multidimensional and forms a structure as a whole. He distinguishes political liberty from philosophical liberty, regarding philosophical liberty as freedom of the will and defining political liberty as “security,” or “the opinion one has of one’s security.”Footnote 8 He further divides political liberty into two categories: liberty in relation to the constitution and liberty in relation to the citizen; the latter is also called “liberty of the citizen” or simply “civil liberty.” The former is discussed in Book 11, which is the most famous part, and examines the constitution in England, while the latter is explored in Book 12, which is relatively unexamined. Liberty in relation to the constitution is guaranteed by “a certain distribution of the three powers” (legislative, executive, judicial), while civil liberty “consists in security or in one’s opinion of one’s security.”Footnote 9 The latter is somewhat confusing because it is almost the same definition given to political liberty, defined in contrast to philosophical liberty. This problem will be discussed below.
Montesquieu’s basic framework, which contrasts the concepts of the political and the civil, is the background to this division of liberty into two categories. He divides society into a “political state” as a union of powers and a “civil state” as a union of wills.Footnote 10 Modifying the classification of law used by the standard Roman jurists of his time, namely, the division into law of nations, public law, and private law, Montesquieu designates what was commonly termed public law droit politique (political law) and what was termed private law droit civil (civil law). The former refers to “laws concerning the relation between those who govern and those who are governed,” and the latter refers to “laws concerning the relation that all citizens have with one another.”Footnote 11
Montesquieu’s unique theoretical innovation lies in his attention to the relationship not only between those who govern and those who are governed, but also between citizens themselves, assigning “political” to the former and “civil” to the latter. In fact, he explains that liberty in relation to the constitution is formed by “the disposition of law, especially the fundamental law,” while civil liberty is favored by “mores, manners, and received examples” as well as “certain civil laws,” particularly criminal law. Although it is anachronistic to consider the fundamental law of his time to be the same as the constitutional law of our time, it is not erroneous to consider the former to be heavily dependent on “political law” and the latter on “civil law.” His distinction between the two concepts of liberty corresponds to this fundamental distinction between the political and the civil. Given the above, we can offer a clear interpretation of the pending question. For Montesquieu, political liberty in general is closely related to security, or the “opinion one has of one’s security,” from which derives the distinction between security in the relationship between the ruler and the people and security in the relationship between citizens themselves. We must bear in mind this dual structure.
Book 12 of The Spirit of the Laws, which examines citizens’ liberty, is dedicated mainly to his suggestions for criminal law reform: “It is the triumph of liberty when criminal laws draw each penalty from the particular nature of the crime. All arbitrariness ends; the penalty does not ensue from the legislator’s capriciousness but from the nature of the thing.”Footnote 12 Montesquieu argues that there must be “just proportion between the penalties and the crime.”Footnote 13 Criminal laws deviating from this rational proportionality seriously undermine citizens’ security. Punishment that will deprive the life of a criminal should be applied only to crimes committed by “a citizen who deprived or has wanted to deprive another of it.” He simply calls this principle “a kind of retaliation.”Footnote 14 This is a very different argument from his main argument in The Spirit of the Laws, where he argues that there is a wide range of diversity among the laws of each society because they are determined by various factors in which they are situated. In contrast, when he deals with civil liberty, Montesquieu prefers relying on a universal principle common to all regimes rather than cultural diversity. Given that he believes that this principle derives from “the nature of things,” it is undeniable that a certain element of natural law theory remains with Montesquieu. Hume, who praises Montesquieu’s emphasis on social diversity and historicity, is keenly aware of this duality and criticizes the deplorable inconsistency of this “illustrious writer.”Footnote 15
Regarding Montesquieu’s structure of liberty, another crucial aspect remains. After having divided liberty into two categories, he makes the following enigmatic observation about the relationship between the two: “It can happen that the constitution is free and that the citizen is not. The citizen can be free and the constitution not. In these instances, the constitution will be free by right and not in fact; the citizen will be free in fact and not in right.”Footnote 16 This statement is somewhat puzzling to readers because Montesquieu does not provide a detailed explanation. It is important to note that for him, constitutional and civil liberties, as discussed above, are the two pillars of political liberty, both of which are necessary for the de facto and de jure realization of political liberty. Political liberty can only be realized when neither the government nor one’s fellow citizens threaten one’s security. Montesquieu’s two liberties are such that they are fully effective only when both are secured. As discussed below, Smith shares this belief. In other words, Montesquieu’s two liberties are not in dramatic tension, as later found by Benjamin Constant, between ancient (or political) liberty as democratic participation and modern (or civil) liberty as being free from governmental intervention in a private sphere.Footnote 17
However, Montesquieu points out that historical experience has shown that there have been incomplete cases in which one of the two liberties has dominated while the other has been forced to recede into the background. Put differently, in pursuing one, there is a possibility that the other will be negatively affected or even sacrificed. As will be shown below, Montesquieu and Smith each have their own perspective on how such difficult cases can be evaluated. Furthermore, this closely relates to the question of how to evaluate the history of the English and French constitutions. How should we interpret the relation between the two liberties under various conditions? The main objective of this essay is to answer this question.
Smith on the liberty of the citizen
Smith, unlike Montesquieu, does not offer a systematic theoretical account of what liberty is. He disperses the term liberty throughout his works without a sufficient definition, and its meaning seems to be multifaceted. In the Wealth of Nations, there are several ways in which he employs the term liberty or freedom. The one that has received the most attention has been what he discusses as a “system of natural liberty,” in which “[e]very man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men” (WN IV.ix.51). We can also find a puzzling expression, such as freedom “in our present sense of the word” (WN III.iii.5). Alongside those, arguments that employ liberty, coupled with the idea of security, frequently appear in this work, the most significant of which is:
But upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security. In order to make every individual feel himself perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. (WN V.i.b.25)
As Donald Winch and Paul Sagar point out,Footnote 18 individual liberty as security in this passage is strongly reminiscent of Montesquieu’s concept of liberty. I would add, however, to be more precise, that this is the liberty of the citizen, one of the two concepts of liberty formulated by Montesquieu. Smith considers the essential role of the administration of justice to be the role of “protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it” (WN V.i.b.1). Impartial management of the horizontal relationship between members of society is the objective of justice. It can be said that civil liberties, as strictly defined by Montesquieu, are at issue here. In addition, Smith, like Montesquieu, pays attention not only to the objective aspect of security, but also to its subjective aspect, despite differences in use of the terms “sense” and “opinion.” Moreover, Smith’s view that the separation of judicial power from executive power guarantees such liberty also appears, at first glance, to bear a strong resemblance to Montesquieu’s theory of the separation of powers.
However, it is necessary to carefully examine both sides. Smith praises England’s judicial system as follows:
There seems to be no country in which the courts are more under regulation and the authority of the judge more restricted. The form of proceedings as well as the accuracy of the courts depends greatly on their standing. Now the courts of England are by far more regular than those of other countries, as well as more ancient. (LJA v.42)
The establishment of such a system occurred after the bold judicial reforms of King Edward I. Before that, “a grand judiciary,” who was a great lord himself, administered justice throughout the kingdom in the same way as a baron did in his own feudal jurisdiction.
Seeking to limit the authority of his feudal barons, Edward divided the existing courts into three and shifted judicial power away from the nobles (LJA v.21). Owing to these measures, a certain emulation arose among the courts. Judges endeavored to provide “the speediest and most effectual remedy” in order to acquire more lawsuits. This tendency contributed to the formation of the present-day admirable English judicial system (WN v.i.b.21; LJA v.25). Even if the king was considered the fountain of justice, his direct influence over the judiciary, such as the right to establish new courts and involvement in legal proceedings, gradually diminished (LJA v.41–42). Another decisive factor was the acquisition of lifetime tenure by the judges (LJA v.5). Smith also acknowledges as an important factor the development of common law rather than statutory law in England. The judges at common law, who respect custom and precedent “have less strength in explaining or correcting the law than any where else” (LJA v.31). As a result of these gradual and stable changes to its judicial system, England succeeded in establishing the rule of law.Footnote 19
In his Lectures on Rhetoric and Belles Lettres, Smith explains the introduction of the separation of the judiciary from the executive through a logic reminiscent of the division of labor, a central theme of the Wealth of Nations: “It was introduced only by chance and to ease the Supreme Magistrate of this the most Laborious and least Glorious part of his Power, and has never taken place untill the increase of Refinement and the Growth of Society have multiplied business immensely” (LRBL ii.203). This rule was not introduced by the intention of citizens seeking to establish civil liberties, but it is rather an unintended outcome achieved over a long period of social development in the pursuit of efficiency through the division of labor. This is a unique perspective of Smith’s that deserves emphasis.
In contrast, the description of English judiciary power in The Spirit of the Laws is sparse. In the chapter dedicated to liberty in relation to the constitution, Montesquieu focuses on the relationship between executive and legislative powers, providing only a brief account of its judicial system. He only mentions the jury system as the judicial branch in England. He argues against placing judicial authority in a permanent organization and instead advocates juries alone fulfilling this role. Consequently, he concludes that among the three powers, “that of judging is in some fashion, null. There remain only two.”Footnote 20 This conclusion is distorted as an analysis of the actual English judicial system. Smith filled the void left by Montesquieu, by elucidating the significance of the separation of judicial power from executive power.Footnote 21
Furthermore, it is noteworthy that by doing so, Smith introduces a new element to Montesquieu’s theory of the separation of powers. By showing that Edward I’s judicial reforms and their subsequent consequences provided a solid foundation for individual liberty, Smith succeeds in demonstrating that the separation of powers is not only crucial for achieving political liberty in relation to the constitution, but also that it is essential for realizing the liberty of the citizen. In this sense, Smith’s argument could be said to be suitable not only to Book 11 but also to Book 12 of The Spirit of the Laws. Moreover, the separation of powers to safeguard citizens’ liberty assumes a character distinct from the mechanism of the distribution of powers aimed at achieving political liberty under the constitution. The requirement of separation of powers for the latter stems from the need to ensure that no authority remains unchecked by others while maintaining a constant balance to prevent any one institution or group from monopolizing political power. In essence, the critique was directed at the nonrestraint of power by any other institution or group. However, Smith asserts that judicial power should remain entirely unrestrained by the executive authority, emphasizing the desirability of maximal independence. Impartial justice can only be effectively administered under this condition, thereby securing civil liberty. This represents another perspective on the distribution of powers that is somewhat distinct from the main argument presented by Montesquieu in Book 11.
However, if judicial power were to achieve complete independence from the executive authority, would it not become an absolute power unchecked by any other authority? Is it sufficient to rely solely on the self-regulating mechanism of the common law tradition and judges’ high professional ethics? Smith offers a resolution to these plausible anxieties. This was the jury system in England, organized by Henry II, which Montesquieu had also noticed. Judges are subject to jury control, in which citizens participate in determining matters of fact. If, as Knud Haakonssen suggests, this serves as an impartial spectator, so the danger of judicial despotism can be avoided.Footnote 22
Montesquieu and Smith agree on the factors that significantly undermine citizens’ liberty. Both criticize arbitrary penal laws and the institution of slavery. However, there are certain differences in their rationales behind these criticisms. As seen above, Montesquieu advocates penal law based on correct proportionality between crime and punishment, viewing it as a form of retaliation. In contrast, Smith criticizes the idea of retaliation and develops a more refined psychological theory of penal laws.Footnote 23 Regarding slavery, Smith invokes Montesquieu’s name, as shown above, and reinforces his own argument using the example Montesquieu provides that productivity of Hungarian mines employing free labor is higher than those employing slave labor. While Montesquieu only mentions this fact, Smith further analyzes the mechanism of the low productivity of slave labor. According to him, slavery represses the natural sentiments of human beings to improve their own situations (WN IV.ix.47). If labor fails to result in commensurate compensation, motivation for work is subdued. In such circumstances, technological innovation is unattainable.
Thus, Montesquieu and Smith each fought for the value of the liberty of the citizen. Their relationship can be summarized as one in which Smith, while accepting Montesquieu’s ideas as a precursor, reinforces and develops them with new principles.
Smith on liberty in relation to the constitution
How does Smith address what Montesquieu considers liberty in relation to the constitution? Montesquieu maintains that political liberty under the constitution was realized in England after the Glorious Revolution. He particularly notes that the English constitution steadily maintained the basic structure of a mixed constitution, composed of monarchy, aristocracy, and democracy, and by developing it, established a system in which power was restrained by power. He focuses on the balance between the legislature and the executive, the former embodying democracy and aristocracy and the latter monarchy. Additionally, he emphasizes the equilibrium between the House of Lords, representing aristocratic elements, and the House of Commons, representing the democratic branch.Footnote 24
Setting aside Smith’s perspective on its historical origins, it can be asserted that his understanding of the English constitution after the Glorious Revolution is not significantly different from that of Montesquieu: “Here is a happy mixture of all the different forms of government properly restrained and a perfect security to liberty and property” (LJB 63). Smith, who evaluates England as having developed a mixed constitution and completed it as a constitutional monarchy, can be considered a Whig in this respect.Footnote 25 He proudly calls this a “system of liberty” (LJA iv.178). His assessment of this system is extensively addressed through a series of lectures held consecutively over three days commencing on March 9, 1763. Among notable elements he emphasizes in this context, one could list control over budgetary decisions by the Parliament, ministerial impeachment powers given to the legislature, the issuance of writs of habeas corpus, frequent elections, and the life tenure of judges.Footnote 26
If we were to compare Smith’s arguments with Montesquieu’s description, Smith’s notable inclination toward a low assessment of the House of Lords would be prominent. The parliament he appraises is one where the dominance of the House of Commons is realized, with its fundamental functions being carried out mainly by the Commons. The number of voices in the Commons not only outnumbers that of the Lords, but it also represents the whole body of the people in the boroughs and the country. They were “as it were the weight of the whole people.” While the Lords prefer parochial interests, the Commons rely on the voice of the people and the goodwill of their constituents as their foundation. What is particularly important for the system of liberty is that the Commons established the practice of initiating most money bills. Because almost all bills can be put into the form of money bills, this establishes the Commons’ overwhelming superiority over the Lords. Ironically, Smith states that there is hardly any business left to the Lords, except for diplomatic matters (LJA iv.178, LJA v.2–5).
Smith’s description of the English constitution entails a tripartite structure comprising the House of Commons as the nucleus of Parliament, alongside the king and an independent judiciary. In contrast, while Montesquieu examines the arrangements among the legislative and executive branches, his attention is predominantly drawn to the equilibrium between the House of Lords and the House of Commons. Deeply wary of the encroachment of legislative supremacy, Montesquieu believes that the legislative branch should not only be constrained by the executive, but it should also itself be divided into two separate Houses, each of which represents the interests of two distinct groups: nobility and commoners.
Montesquieu’s appreciation of the political role of the hereditary nobility stems from its status as an intermediate group. While his concerns about liberty in relation to the constitution primarily focus on the balance between legislative and executive powers, he also adds another important factor to the equation. He argues that both the legislative and the executive require “a power whose regulations temper them.”Footnote 27 This third power is situated between those who govern and the governed, which operates dually, being subject to the commands of the rulers while also wielding authority or exerting influence over the people. Simultaneously, it protects the interests of the people, safeguarding their benefits, while restraining the ruler’s despotic tendencies. In the British mixed constitution, this role is fulfilled by the House of Lords, while in France, it is the nobility and the Parlement that play that role. As long as intermediate bodies fulfill their proper functions, the French monarchy will not, in Montesquieu’s view, fall into despotism. A dramatic illustration of the role played by the aristocracy as an intermediate body in the French monarchy is the episode of the vicomte d’Orte, the governor of Bayonne, who refused the commands of the king to massacre the Huguenots in his territory in the name of his honor.Footnote 28
To make the discussion more precise, I introduce Jacob T. Levy’s three classifications of intermediate groups. According to Levy, there are three major types of group life: the competitive model, which emphasizes horizontal rivalry; the integrative model, which emphasizes harmonious vertical nonrivalry; and the oppositional model, which emphasizes vertical rivalry. As he correctly analyzes, Montesquieu’s nobility is precisely the oppositional intermediate group.Footnote 29
What Smith observes, on the contrary, in the English system of liberty could be summarized as a mixed constitution without aristocracy. Commons alone effectively controls executive power, and even though it is controlled by executive power, the disparity in power continues to widen, owing to the overwhelming strength of parliamentary authority. If neither the executive nor the House of Lords can effectively curb the Commons, what serves to restrain its power? Smith’s answer is frequent elections: “The frequency of the elections is also a great security for the liberty of the people, as the representative must be carefull to serve his country, at least his constituents, otherwise he will be in danger of losing his place at the next elections” (LJA v.8–9). According to Smith, as elections are held more frequently and the representatives become more subservient to the constituents, the democratic part of the constitution expands. Let us recall Smith’s interest in the jury system as a check against the potential despotism of the judiciary. This, too, constitutes a mechanism through which the people directly control governmental institutions.
Smith evaluates the historical role that the democratic part has played, at least in terms of curbing the absolute power of the Crown. However, this is not the end of the story. Smith discovered the corrupt politics in the House of Commons in his day, where merchants pursued their own interests based on a mercantile system of monopolies, privileges, and regulations. Consequently, he fiercely condemns this abuse: “The member of parliament who supports every proposal for strengthening this monopoly, is sure to acquire not only the reputation of understanding trade, but great popularity and influence with an order of men whose numbers and wealth render them of great importance” (WN IV.ii.43). The mercantilist laws, which, according to Smith, are “all written in blood” (WN IV.viii.17), often carry severe penalties for those who violate them, infringing not only on the economic freedom of citizens, but also on their basic civil rights.Footnote 30 The legislature thus becomes an instrument for enforcing these corrupt interests.
The balance between monarchy and democracy alone is insufficient to fully protect individual liberty. If, despite the corrupt state of the British constitution, Smith did not lose faith in it, it was because it succeeded in establishing a system that strongly safeguarded civil liberties through the independence of the judiciary. In this respect, the independence of the judiciary is of paramount importance for this system.
Smith and Montesquieu on feudal society
Smith’s harsh criticism of feudal society is closely intertwined with his view on the English constitution. He divides it into three historical stages: the allodial government in which the allodial lords possessed great estates, established in post-Roman Empire Europe; the feudal government, established after the introduction of feudal law, which he also refers to as feudal aristocracy; and the decline of feudal government owing to the expansion of royal authority (LJA iv.114–65). According to Smith, even before the establishment of the feudal government, barons, who were large landowners, already wielded jurisdiction over both civil and criminal law as well as the power of levying troops, of coining money, and even of making bylaws in their territory. Smith believes that the king introduced feudal law to stabilize the chaotic order. However, even after the introduction of feudal law, the king was unable to restrain the violence of the great lords: “They still continued to make war according to their own discretion, almost continually upon one another, and very frequently upon the king; and the open country still continued to be a scene of violence, rapine, and disorder” (WN III.iv.9).
For Smith, feudal society was nothing but a dismal state of anarchy.Footnote 31 He critiques the arbitrary judgments of the barons that undermined the security of their subjects. He also attacks the law of primogeniture and entails as a feudal vestige, asserting that it infringes upon citizens’ liberty by restricting their ability to engage in free transactions of property. It suppresses their natural desire to improve the land. It is evident that his criticism of hereditary nobility is directly related to issues concerning the liberty of the citizen.
However, Smith was not simply an advocate of an anti-aristocratic ideology. Like Montesquieu and other proponents of the “Gothic government,” he does not disregard the fact that the nobility served a function in safeguarding liberty against royal despotism. He states that polygamy, widely observed in non-Western societies, is prejudicial to the existence of a hereditary nobility, so polygamy should not be admitted in Europe. In this context, he argues that a hereditary nobility “chiefly supports the liberty and freedom of the people,” because it can “make head against the oppressions of the king” (LJA iii.43; LJB 116). He also suggests that the decline of the nobility in France contributed to the rise of absolute monarchy that continues to this day (LJA iv.165). However, one should not overestimate the significance of these evaluations of hereditary nobility.Footnote 32 Two examples only serve to demonstrate that in highly repressive societies, such as those in the Orient and France, the hereditary nobility might play a positive role, but it is, as it were, a lesser evil. Smith’s ultimate conclusion regarding this issue can be discerned in the following provocative proposition: “[T]he nobility are the greatest opposers and oppressors of liberty that we can imagine. They hurt the liberty of the people even more than an absolute monarchy” (LJA iv.165). After having examined various instances and acknowledged a certain role that this intermediate body had played in maintaining liberty in relation to the constitution, he likely regards the nobility as “oppressors of liberty” because of their significant threat to the liberty of the citizen.
Along with the barons, it was the Christian Church that violated the rights of citizens in feudal society. Smith criticizes the Church, which enjoys enormous wealth from donations from kings and nobles and from the right of tithes, in much the same way as he criticizes barons:
[B]efore the establishment of arts and manufactures, the wealth of the clergy gave them the same sort of influence over the common people, which that of the great barons gave them over their respective vassals, tenants, and retainers. In the great landed estates, which the mistaken piety both of princes and private persons had bestowed upon the church, jurisdictions were established of the same kind with those of the great barons; and for the same reason. (WN V.i.g.22)
However, Smith’s criticism is directed at centralized, hierarchical religious organizations, such as the Anglican Church and the Catholic Church. Notably, Smith holds a positive view of societies whereby multiple religious sects operating independently of state intervention compete and coexist peacefully: “In a country where the law [does not favor any one] religion [over] another,” none of the religious teachers
should have any particular or immediate dependency upon the sovereign or executive power. … In such a situation he would have no occasion to give himself any concern about them, further than to keep the peace among them, in the same manner as among the rest of his subjects; that is, to hinder them from persecuting, abusing, or oppressing one another. (WN V.i.g.16)
Compared to Smith, Montesquieu’s attitude toward the Church is restrained. He limits himself to briefly describing the introduction of the tithe tax despite popular reluctance and the conversion of ecclesiastical goods into fief.Footnote 33 He implies a modest criticism of the vast wealth and power of the Church, but he does not develop it further as Smith does. He rather points out that the power of the clergy is “suitable to monarchies,”Footnote 34 if there is nothing else to restrain the arbitrary power of the king. Smith criticizes the Church with the same arguments he uses to criticize the nobility, while Montesquieu defends it using the same arguments he uses to defend the nobility.
Montesquieu’s views on medieval Europe, although not dramatically different, yet diverge from Smith’s view. Essentially, Montesquieu’s position suggests that both the “nobility thesis” advocated by Henri de Boulanvilliers and the “royal thesis” advocated by Jean-Baptiste Dubos have their flaws, and that an attempt should be made to find a middle ground between the two.Footnote 35 Overall, however, his criticism of the royal thesis is stronger. Like Smith, he also remarks that the Franks in early times were characterized by military and civil despotism: “The government of the Franks was that time very harsh because the offices had simultaneously military power, civil power and even fiscal power over the subjects.”Footnote 36 However, he defends this by arguing that seigneurial jurisdiction was not actually as despotic as it might seem, and that fiscal power was scarcely abused. He views the arguments of the proponent of the nobility thesis as a “conspiracy against the third estate” and criticizes the oppression of serfs under feudalism. Nonetheless, he regards French succession law, such as “substitutions,” which aims to prevent the division of the nobility’s assets, as crucial for monarchy, as without it, maintaining the nobility would be impossible.Footnote 37 Based on these considerations, he arrives at the following conclusion, regarding the “Gothic government”:
It [Gothic government] was at first a mixture of aristocracy and monarchy. Its drawback was that the common people were slaves; it was a good government that had within itself the capacity to become better. Giving letters of emancipation became the custom, and soon the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings, were in such concert that there has never been, I believe, a government on earth as well tempered as that of each part of Europe during the time that this government continued to exist; and it is remarkable that the corruption of the government of a conquering people should have formed the best kind of government men have been able to devise.Footnote 38
It is undeniable that Smith’s perspective leans more toward the royal thesis than the nobility thesis. However, for Smith, the very interest of these French historians in exploring the mythical origins of history had become, perhaps, meaningless. Certainly, he too adapts the common explanation that the king, being jealous of the power of the nobility, sought to weaken it by freeing their slaves from their authority (LJA iv.143). Nonetheless, what he pays more attention to is the following fact: the decline of the hereditary nobility had already begun before the king attempted to usurp their power.
The feudal nobility declined due to multiple and long-term causes, and Smith’s analysis of that in the Wealth of Nations has fascinated Smith scholars (WN III.iii–iv).Footnote 39 While the countryside, dominated by feudal anarchy, was living under stagnant poverty, changes began to occur in the cities. The catalyst for this change was the convergence of mutual interests between the burghers, who were suffering from exploitation by the lords, and the king, who hated and feared the lords. For the king, the burghers were “the enemies of his enemies, and it was [in] his interest to render them as secure and independent of those enemies as he could” (WN III.iii.8). This convergence of interests yielded remarkable consequences: “Order and good government, and along with them the liberty and security of individuals, were, in this manner, established in cities at a time when the occupiers of land in the country were exposed to every sort of violence” (WN III.iii.12). In the cities, the townspeople were able to safely enjoy the fruits of their industry, and they “naturally exert it to better their condition.” Consequently, cities experienced stable growth in commerce, particularly in foreign trade.
Owing to the development of cities and the consequent expansion of foreign trade, the nobility was tempted into luxury and extravagant spending, ceasing to expend much on maintaining their tenants and retainers. Smith casts a sarcastic glance at the nobility seduced by luxury: “[F]or the gratification of the most childish, the meanest and the most sordid of all vanities, they gradually bartered their whole power and authority” (WN III.iv.10). According to Smith, driven by economic and psychological factors, the hereditary nobility was already on the path to self-destruction before losing the power struggles with the king.
This is a severe blow to Montesquieu’s system. He asserts that a monarchy is a system that encourages citizens’ desires for extravagant consumption and aims for economic prosperity through the production and exchange of luxury goods. In his view, modern monarchy, unlike the ancient republic, is an unequal society. However, Montesquieu considered only one aspect of this situation. A society that tolerates luxury, as Smith discovered, embodies a moment of equalization in the sense of eradicating traditional distinction of rank, which will be further discussed in the next section. By indulging in luxury, nobility undermines its own foundation of superiority. As noted above, Montesquieu evaluates the “concert that there has never been” between political and civil liberties in the Gothic government. However, it is not so straightforward for modern monarchy to inherit this idealistic harmony.
Honor, rank, and opposition
Montesquieu’s expectations of the nobility are not confined to its social role as an oppositional intermediate body. For him, the nobility should embody honor. To understand this issue better, we first compare how Montesquieu and Smith discuss the distinction of rank in society.
Analyzing monarchical government in The Spirit of the Laws reflects the reality of the monarchy in modern commercial society and significantly influences subsequent generations. He points out that while a republic based on the principle of virtue pursues equality, a monarchy based on the principle of honor, which he defines as the pursuit of “preferences and distinctions,” presupposes inequality. In other words, it is a society maintained by “preeminence, ranks, and even a hereditary nobility.”Footnote 40 Wealth is distributed unequally, and luxury becomes necessary because “unless the rich consume their wealth in proportion to its inequality, the poor will die of hunger.”Footnote 41 Everyone constantly competes to pursue superiority: “The people of the lower condition desire to quit those conditions only in order to be masters of the others.”Footnote 42 He approves of the venality of offices on the grounds that it encourages social mobility from the lower to the upper ranks.Footnote 43 The inequality of wealth and rank stimulates citizens’ ambition to rise up the social ladder; consequently, the monarchy prospers as a whole. He formulates the essence of this mechanism as follows: “Each person works for the common good, believing that he works for his individual interests.”Footnote 44
In The Theory of Moral Sentiments, Smith addresses the distinctions of rank, or the “difference of birth and fortune,” presenting a mechanism similar to Montesquieu’s monarchy. Smith’s distinct contribution is his psychological analysis of this mechanism. According to Smith, humans are more sympathetic to joy than to sorrow. The distinction of ranks is founded “[u]pon this disposition of mankind, to go along with all the passions of the rich and the powerful” (TMS I.iii.2.3). Smith, like Montesquieu, believes such dispositions encourage social development. Striving for higher social status stimulates human industry, fosters progress, and advances societal refinement. Smith, like Montesquieu, emphasizes the role of luxury, noting that landlords’ extravagant consumption distributes wealth to impoverished luxury goods producers, providing them with necessities they would not receive through “his [the landlord’s] humanity or his justice” (TMS IV.i.10).
Although their views are remarkably similar, significant differences cannot be ignored. Montesquieu supports dérogeance (derogation of the nobility), laws and customs prohibiting the nobility from engaging in commerce in France: “People who are struck by what is practiced in some states think there should be laws in France engaging the nobles to carry on commerce. This would be the way to destroy the nobility, without being of any utility to commerce.”Footnote 45 He supports upward social mobility, but he opposes downward movement. He believes pursuing self-interest inherent in commerce would undermine the dignity of the nobility, whose primary duty was to engage in public service, particularly in defending the Kingdom.
It is difficult to find passages in the Wealth of Nations or Lectures on Jurisprudence where Smith mentions derogation, as adopted in France and Germany. The absence of such laws in Britain likely explains Smith’s lack of interest in this issue.Footnote 46 Imagining that he would have supported derogation is not easy, considering his strong criticism of the aristocracy in Scotland, which lacked industry before their union with England. Smith harshly criticizes them for their idleness: “The idleness of the greater part of the people who are maintained by the expence of revenue, corrupts, it is probable, the industry of those who ought to be maintained by the employment of capital” (WN II.iii.12). He argues that the advantages created by the union include the departure of outdated elites from Edinburgh, which consequently led to trade and industry in this city. The privileges of the corrupt nobility need not be legally or institutionally protected.Footnote 47 For Smith, the distinction of rank was based on a much higher level of mobility than for Montesquieu.
Having discussed the distinction of rank for both thinkers, we now return to honor.
Montesquieu not only examines honor as “preferences and distinctions,” but he also explores the traditional honor of the nobility stemming from feudal society.Footnote 48 As an ambition that supports the modern monarchy, honor includes the desire for wealth and a higher social rank, as discussed above. However, traditional honor derived from feudalism is the ethos to which the aristocracy, as an oppositional intermediate body, inherently aspires. Honor is supported by the sense that the aristocracy is responsible for protecting the rights of the people under its influence. It has a duty, when necessary, to resist the sovereign, its superior. Due to this sense of honor, Vicomte d’Orte refused the King’s unjust commands.
How did Smith perceive honor? In the sixth edition of The Theory of Moral Sentiments, Smith describes the foolish spectacle of court society more acerbically than does Montesquieu. The court is a space “where success and preferment depend, not upon the esteem of intelligent and well-informed equals, but upon the fanciful and foolish favour of ignorant, presumptuous, and proud superiors; flattery and falsehood too often prevail over merit” (TMS I.iii.3.6). This is a skillful caricature of the modern monarchy, as described by Montesquieu. Montesquieu considers the system of court society to be useful for the public and he defends it, albeit with the suspicion that it might conflict with the morality of the individual.Footnote 49 However, Smith extends his suspicion, seeing it as the sinister corruption of morality in modern society that could lead to subjugation to superiors.
Interestingly, Smith suggests a possibility that a certain sense of honor may restrain such moral degradation. In the same edition of The Theory of Moral Sentiments, he evaluates the sentiment of honor that is described as “the love of what is honourable and noble, of the grandeur, and dignity, and superiority of our own characters” (TMS III.3.4).Footnote 50 Smith believes that this affection differs from altruistic sentiments, such as “the love of our neighbor” or “the love of mankind,” and is, in a sense, another form of self-love. In this regard, Smith aligns with Montesquieu’s perspective that honor differs from “virtue,” which demands self-sacrifice. While Montesquieu and Smith (particularly in his later years) hold fairly similar notions of honor, differences exist. Montesquieu perceives honor as stemming from one’s identity within a specific subset of society, whereas Smith envisions an individual seeking honor to gain recognition from “the world.” The world is where the judgments of well-informed equals, mentioned in the above quotation, prevail over the fanciful favors of ignorant and proud superiors.
Here as well, Smith’s egalitarian inclinations become apparent. Smith does not outright reject aristocratic elements, at least in terms of morality. However, while for Montesquieu honor is firmly tied to a substantial intermediate body with a legal status derived from the German forest, Smith advances in a direction that sought to liberate honor from such constraints. For Smith, honor is morality that anyone can acquire, regardless of their social rank.
Preserving the ethos of traditional honor by the nobility as an oppositional intermediate body is a fundamental condition for Montesquieu to ensure liberty in relation to the constitution. Smith casts various doubts on these conditions from different angles, and as mentioned above, these doubts were never unfounded or unproductive. Smith was a worthy successor to Montesquieu in defending civil liberties. However, regarding the other liberty, liberty in relation to the constitution, Smith was a sharp, though constructive, critic of Montesquieu.
Concluding remarks
Let us revisit our original question: How are we to understand Montesquieu’s enigmatic proposition that “liberty in its relation with the constitution” and “civil liberty” are not always in harmony.
Montesquieu and Smith both consider liberty of the citizen and liberty in relation to the constitution as important issues. However, their positions are divided on the assessment of oppositional intermediate groups. According to Smith, the nobility’s oppression of the common people was more severe than that of the king because it significantly oppressed their civil liberty. If ensuring liberty of the citizen is a priority, Montesquieu’s reliance on intermediate groups to achieve constitutional liberty could be considered reckless in Smith’s view. Montesquieu recognizes the potential for reconciling the two liberties in the Gothic government, but he accepts that the preservation of liberty in relation to the constitution would require some sacrifice of civil liberty, as seen in the restriction of property rights. For him, the primary concern is the violation of liberty by the sovereign’s absolute power.
Smith and Montesquieu both envision a scenario in which civil liberty and constitutional liberty coexist. However, if the two were incompatible, Smith would prioritize the former, while Montesquieu would prioritize the latter.
Determining which of these two positions is more persuasive is not an easy task. The question of whether the intermediate group that mediates between those who govern and those who are governed is a cornerstone of a free society—or is an oppressor—is a complex one. If this group plays a positive role, what conditions must it meet to do so? If the state (or judiciary) adequately guarantees citizens’ security, will there be no need to limit their power? Besides the mechanism of one power restraining another, are there any other methods for limiting power? Which of the two poses a greater threat to individual liberty: the state with its monopoly on coercive power or the powerful citizens exempt from state control? The presumed intellectual dialogue between Montesquieu and Smith offers significant insights when considering these complex issues in contemporary society.
Acknowledgments
I am deeply appreciative of the valuable feedback and constructive criticism from an anonymous reviewer and the other contributors to this volume.
Competing interests
The author declares none.
