Montesquieu: Definition Of Law Essay, Research Paper

The following was completed for a Political Thought and Theory Class in my Senior Year of Highschool..my grade was an 85

Montesquieu:

Definition of Law

Into the first three chapters of Book 1, The Spirit of Laws, Montesquieu

condensed a lifetime of thinking, not so much on law as what law is, (after all, the

work by Montesquieu is entitled The Spirit of Laws, not The Laws of the Spirit).

The definition of law provided to us by Montesquieu can be most clearly

identified as a series of relationships which are derived from the nature of things;

relationships varying not only among human beings, but animals and thought.

Background: Montesquieu, Charles-Louis de Secondatbaron de la Br?de et de

Born January 18, 1689, Montesquieu (Caption 1-1) belonged to an old

family of modest wealth that had been ennobled in the 16th century for services

to the crown. Charles-Louis studied at the faculty of law at the University of

Bordeaux, was graduated, and ventured out for experience in law. He married

Jeanne de Lartique and through marriage he became socially and financially

secure. He wrote many works pertaining to the lawfield (Encarta).

Montesquieu?s Definitions of Law

?Laws, in their most general signification, are the necessary relations arising from

the nature of things.? (Spirit)

Montesquieu in the first book would seem to be collating all that has been

said on the law into some complex equation, eliminating the common and

arriving at some simple solution. Thus, laws in the most general sense are the

relationships between things (all things) as the nature of things shows: the nature

of things seen, heard, and read. God isn?t seen nor heard, or read; still, he must

have his place, but not first in the order of the nature of things (Catholic).

?There is, then, a prime reason; and laws are the relations subsisting between it

and different beings, and the relations of these to one another.? (Spirit)

But we have overlooked a key word kept by Montesquieu in his most

concentrated definition: laws are not only relationships, they are necessary

relationships. Here grows a somewhat ambiguous question. Why are they

necessary? They are not necessary due to a decree of some sort, but become

natural; thus the term ?Prime Reason. (Loy 89)?

?God is related to the universe, as Creator and Preserver; the laws by which He

created all things are those by which He preserves them. He acts according to

these rules, because He knows them; He knows them, because He made them;

and He made them, because they are in relation to His wisdom and power.?

(Spirit)

It is true that Montesquieu seems to waver between ?natural law? and

?laws of nature? as expressions. It is also true that he defines laws of nature as

those that derive solely from our beings (Loy 90).

?By the allurement of pleasure they preserve the individual, and by the same

allurement they preserve their species. They have natural laws, because they are

united by sensation; positive laws they have none, because they are not connected

by knowledge.? (Spirit)

Animals however, are without knowledge but have some natural laws.

Although Montesquieu does spare us the seventeenth-century discussion of

pre-social man, he has not escaped certain confusions in regards to human reason

and Prime Reason (Chan).

?Before there were intelligent beings, laws were possible; they had therefore

possible relations, and consequently possible laws. Before laws were made, there

were relations of possible justice. To say that there is nothing just or unjust but

what is commanded or forbidden by positive laws, is the same as saying that

before the describing of a circle all the radii were not equal.? (Spirit)

It is also in his discussion of natural law that Montesquieu comes to the

conclusion that after God comes first a state of peace. For Montesquieu, peace is

the first law of nature. Following natural laws are nourishment, sex, and society

(Chan).

?But the intelligent world is far from being so well governed as the physical. For

though the former has also its laws, which of their own nature are invariable, it

does not conform to them so exactly as the physical world.? (Spirit)

Once the natural law is done with (and Montesquieu started there for

many reasons), one is on relatively clearer, emperic grounds with the positive

laws. International law, political law, civil law: nothing in Montesquieu?s

estimation could be more easily grasped from looking at man?s past. When

Montesquieu makes his famous statement that law is human reason, one takes

note he is writing under the heading ?positive law. (Loy 91)?

?Law, in general, is human reason insofar as it governs all the nations of earth.?

Conclusion:

All of this, although not original, is Montesquieu?s obvious contribution to

his science of laws. His whole attraction to his subject (whether conscious or

not), his role in intellectual history, his genius, were involved with seeing

everything through both kinds of Nature (Loy 92). Through metaphysics and

science, through moral and physical causes, through Philosophy and History,

through absolute and relative, through what ought to be and what is the spirit

guiding human social life on this earth is, its existence and its essence, his goal

was simply his honesty and seen in historical perspective, his great contribution

to the Enlightenment and the Social Sciences.

The Spirit of Laws gives us the ability to share in Montesquieu?s most

logical and awarded analysis of what laws are; a series of relationships which are

derived from the nature of things; relationships varying not only among human

beings, but animals and thought. By understanding first what law is, we may

better strive towards improved legal systems and society?s perfection.

The Catholic Encyclopedia. ?Charles-Louise de Secondat, Baron de

Montesquieu.? http://www.newadvent.org/Cathen/10536a.htm (retrieved

27 April 2000)

Chan, Jannie C. ?Montesquieu?s Political Theory: Truth or Fiction??

http://www.nassaulib.org/professors/JannieChanSOL.htm (retrieved 3

May 2000)

Encarta Learning Zone. ?Montesquieu, Charles Louis de Secondat, Baron de la

Brede et de.? http://encarta.masn.com/find/concise.asp?z=2&+i03BF9000

(retrieved 3 May 2000)

Loy, Robert J. Montesquieu. New York: Twayne Publishers, 1968

Montesquieu, Charles-Louis de Secondat. The Spirit of Laws.

http://www.taxexemptlaw.com/library/sol-01.shtml (retrieved 24 May

2000)