It seems unusual for someone, who lived and died prior to the American and French revolutions to write that “the strength of individuals can not be united without a conjunction of all their wills.” (p. 162) He seems to be leaning toward a phenomenon that was simply not available during his lifetime- a classless society. The very word “democracy” was unused by modern governments of his time, and only provided a reference back to the days of Athens. And yet, as we surely must known Athens was no more a democracy (except in Plato’s ideal Republic), since there was both a class of intelle3ctuals and one of politicians, and one of all the rest of the population.
In essence, Montesquieu sees a monarchy as a practical form of government. Practical in the sense that one man, an absolute monarch, has the power to “repair the evil…or to shake off this indolence” (p 163) Yet, in the same chapter he discusses the potential of corruption of a popular government. We almost need to look ahead to the writings of John Stuart Mill and his invention of the term “tyranny of the majority” to come to grips with this idea of corruption. One has to wonder whether the very idea of “corruption” is a human failing. Given too much power, whether as absolute monarch or the head of a majority “democracy” corruption is that carrot at the end of a very short stick. It is a lure as surely ass a purse of gold to a beggar.
The use of the word “virtue” is, of course, a direct reference to the philosophical dialogues of Athens’ intellectual leaders. They attempted to define it, but the definitions of truth and justice were largely ignored by the political leaders eager to make Athens a dominant power in Greece and the rest of the Western world of those times. But, for some reason, he still espouses the case of “democracy” which had not existed for several thousand years. He, of course, uses the monarchy (with which, as a Frenchman) he was more familiar with in terms of its absolutism, by claiming that “In monarchies, policy effects great things with as little virtue as possible” (p. 163) The reason is obvious: there is no need for popular approval of the policies of either a monarch or a despot. At the same time, when he brings up the subject of “freedom”- a term he surely wished was in use in his France, but at this point in time was no more than a glimmer- he comes to grips with what he calls “unlimited freedom” (p. 169). There really cannot be a democracy without the independent will of the people. However, he puts a restriction on his idea of freedom. “In countries where liberty is most esteemed, there are laws by which a single person is deprived of it, in order to preserve it for the whole community” (p. 172). This certainly can be seen in the U.S. today, where the Justice Department now has Congress’ permission to question and detain any “suspect” (i.e., anyone from the Near or Middle East) who might have a connection to the terrorists. To prove this point of the year 2001, Montesquieu also points out (p. 174) that there is a tyranny seated in opinion. This, surely, would not then fall under Montesquieu’s version of a “moderate” government. There is a limit to freedom. He makes that quite obvious when he states that “Democratic states and aristocratic states are not in their own nature free” (p. 169). And yet, he also states that “It is the business of the legislature to follow the spirit of the nation” (p. 175).
This causes a problem to anyone who sees “democracy” as a government of laws, of justice that is blind (and should be deaf as well). In assessing the current situation in America, therefore, it is true as Montesquieu points out, that it is the spirit of the people, not so much the spirit of the law (i.e. the Constitution) that is being followed. The real danger for a democracy, therefore, is the changing “spirit” of the governed, rather than the unchanging and stable progress of those who govern.
One must also comment on the fact that Montesquieu wrote during a time that the Church was still strongly influential in France. No wonder that he uses “divine law” (p. 176) as one of the laws by which men are governed. It should be the function of a true democracy to forego this sort of divine law, because, in a sense, it is highly restrictive. What happens to the people governed under “divine law” whose divine object of veneration is not a God, not Jesus or the Apostles, nor even Allah. Are they to be left out, or must they submit to this imposed divine law?
It is somewhat difficult to understand where Montesquieu got his ideas for what a democracy should and should not be. Surely, Switzerland, a country protected by nature and the xenophobia of its citizens cannot serve as a perfect model. Still, he writes some ideas that have meaning for us today. For example, if we wonder why the U.S. is hated by so many throughout the world, Montesquieu has the answer: “There is still another inconvenience in conquests made by democracies: their government is ever odious to the conquered states.” (p. 168) We are seen, as Montesquieu has foreseen, despised for imposing our way of life and government on others.
If there is one thing of which democracies, in fact, all states that serve the will of the people, need to understand it is, as he points out, the difference between independence and liberty. “Liberty is a right of doing whatever the law permits” (p. 169). Laws, it would seem if one reads Montesquieu correctly, restrict independence. Conformity in order to achieve liberty would be more like it. It goes without saying, therefore, that political liberty can only be found in moderate government, where a system of laws prevents individual independence outside, and unencumbered, by the law.
Citation:
Montesquieu, Baron de (1748): “The Spirit of Laws” The Great Legal Philosophers Chapter 7
