Montesquieu’s Conception of Liberty
This is an old essay I wrote on Montesquieu, which may be of some small interest. Montesquieu's account of the English constitution seems to have been the single biggest influence on the framers of the American constitution. Perhaps this essay provides some insight into how they thought the constitution would serve to "secure the Blessings of Liberty to ourselves and our Posterity."
Montesquieu begins Book 11 of The Spirit of the Laws (entitled: “On the laws that form political liberty in its relation with the constitution”) with a discussion of the meaning of liberty. “No word,” Montesquieu says, “has received more different significations and has struck minds in so many ways.”1 Among other meanings, liberty has been taken to mean the right to remove the ruler, the right to elect the ruler, the right to be governed by one’s nation’s own laws, and “the usage of wearing a long beard” (in Russia).2 Montesquieu rejects all these definitions, along with the idea that, because “in democracies the people seem very nearly to do what they want,” liberty is especially likely to be found in a democracy.3 Montesquieu’s definition of political liberty is as follows:
Political liberty in no way consists of doing what one wants. In a state, that is in a society in which there are laws, liberty can consist only in having the power to do what one should want to do and in no way being constrained to do what one should not want to do. One must put oneself in mind of what independence is and what liberty is. Liberty is the right to do everything the laws permit; and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.4
Montesquieu’s use of “independence” here as the destructive, extreme alternative to liberty is a bit like the opposition between liberty and “license” in other political writing. Liberty only consists of doing what one should want to do, not doing whatever one may happen to want to do. The law differentiates what one should and should not want to do. By being bound by laws, the citizen loses the right to do what the laws forbid, but gains security against other citizens who might have wished to harm him in ways that the laws forbid.
If the benefit of liberty is assurance that one is free from the harm other citizens might do to oneself, does Montesquieu think, then, that liberty obtains if the law only forbids citizens from engaging in those act that harm other citizens? This question fails to get at what is important about Montesquieu’s conception of liberty because the nature of "harm" from a legal point of view is a question that different legal regimes might differ on. Is a writer harmed by copyright infringement? Even though any jurisdiction with a jurisprudence of copyright implicitly regards copyright infringement as harm, jurisdictions differ in what they consider to be copyright infringement as opposed to fair use. Whether harm has occurred in any particular case is, therefore, dependent on contingent legal history (at least partly).
If the notion of harm is too dependent on what laws are in place to be of much help in determining whether a given set of laws establishes liberty, does Montesquieu then hold to a definition of liberty under which liberty exists if all citizens enjoy legal equality? Such a reading of Montesquieu’s definition of liberty is closer to the mark than a reading that imputes to Montesquieu a definition of liberty as a state in which the law forbids citizens from harming one another, but is still underspecified. The modern notion of legal equality must be disaggregated into two component forms of equality. Call them equal assurance of legal protection and equality under the law. Equal assurance of legal protection consists in justified confidence that one is protected by the law, whatever the text of the law is. Equality under the law consists in being subject to the same written law as other citizens. The two forms of legal equality may in practice be mutually reinforcing but they are conceptually independent. One can imagine a society of orders in which the rights of the clergy, the nobility, and the commoners are intricately differentiated, but the text of the laws is applied consistently. If such a society gave lords different rights from serfs, but those rights that serfs had against the lords were protected with equal certainty as those rights that the lords had against the serfs, equal assurance of legal protection would obtain.
A society with equal protection under the law but without equal assurance of protection would provide uniform laws applying to all citizens, without any legal differentiation between castes. But such a society would not necessarily ensure that the legal protections that citizens are entitled to on paper obtain in practice. Perhaps those with connections to the judiciary would be able to commit crimes with impunity and rely on their contacts to get them off. Another possibility is that a general breakdown of social order would make the rate of punishment for any crime low, so criminals would run only a minimal risk of facing punishment.
Montesquieu’s conception of liberty requires only equal assurance of legal protection and not equality under the law. In his discussion of why the English constitution provides so excellently for the preservation of liberty, Montesquieu mentions the ways in which the English constitution ensures the preservation of the hereditary privileges of the nobility. “The nobility should be hereditary. In the first place, it is so by its nature; and, besides, it must have a great interest in preserving its prerogatives, odious in themselves, and which, in a free state, must always be endangered.”5 If the prerogatives of the nobility were equivalent to the rights of Englishmen in general, it is hard to see what Montesquieu could have meant by describing them as “odious in themselves” and “in a free state… always endangered.”6 Therefore, Montesquieu provides directly for inequality under the law as a characteristic of a free state. Liberty means equal assurance of legal protection. A state with liberty is a state in which the laws, whatever their nature, always apply in practice.
Montesquieu’s equation of equal assurance of legal protection with liberty is the reason he says that “political liberty in a citizen is that tranquility of spirit which comes from the opinion each has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.”7 For Montesquieu, liberty has little to do with the precise bundle of legal rights that one was entitled to. It is consistent with, for example, censorship if censorship were required in practice to preserve a particular regime and thereby ensure that that regimes laws continue to be enforced.
Understanding Montesquieu’s definition of liberty clarifies his seemingly paradoxical discussion of detention for capital crimes:
If the legislative power leaves to the executive power the right to imprison citizens who can post bail for their conduct, there is no longer any liberty, unless the citizens are arrested in order to respond without delay to an accusation of a crime the law has rendered capital; in this case they are really free because they are subject only to the power of the law.8
How could it possibly be that citizens detained for capital offenses are really free “because they are subject only to the power of the law”?9 Being detained is, in ordinary language, the opposite of being “at liberty.” The paradox is resolved by Montesquieu’s definition of liberty as equal assurance of legal protection. Citizens subject only to law (as opposed to the capricious will of a judge or the sovereign) are assured that, though they may be punished for violating the legal rights of others, no one will violate their legal rights and escape punishment. In that sense they are free because they are as protected by law as anyone who might harm them would be.
For Montesquieu, a society that managed to perfectly realize liberty would erase some of the distance between the “intelligent world” and the “physical world,”
the intelligent world is far from being as well governed as the physical world. For, though the intelligent world also has laws that are invariable by their nature, unlike the physical world, it does not follow its laws consistently. The reason for this is that particular intelligent beings are limited by their nature and are consequently subject to error; furthermore, it is in their nature to act by themselves.10
Physical laws—given that The Spirit of the Laws was published in 1748 the paradigmatic description of the laws of the physical world for Montesquieu would have been Newton’s—obtain in every case. Human fallibility and free will prevent human laws from obtaining in every case, but in so far as a constitution institutes liberty, the roles played by human error and free will diminish. For Montesquieu the less one’s will is able to render one’s action unpredictable and the more one behaves like a physical body governed by exceptionless physical laws, the more one has liberty.
Liberty in the English Constitution
“All states have the same purpose in general, which is to maintain themselves, yet each state has a purpose that is peculiar to it… There is also one nation in the world whose constitution has liberty as its direct purpose.”11 That nation is England.12 Montesquieu’s basic explanation of the preservation of liberty in the English constitution is the separation of powers.
Political liberty can be secured if things are arranged “so that one cannot abuse power, power must check power by the arrangement of things. A constitution can be such that no one will be constrained to do the things the law does not oblige him to do or kept from doing the things the law permits him to do.”13 This is consistent with the opposition between liberty correctly defined as equal assurance of legal protection and liberty incorrectly defined as unimpeded exercise of one’s will. Montesquieu’s conception of liberty consists in the equal assurance of citizens of protection by the laws as they are written. In a state of perfect liberty, human laws would obtain just as surely as the laws of Newtonian physics, which describe a clockwork universe in which chance plays no role at all. Therefore, limitations on the wills of those tasked with interpreting and enforcing the laws are necessary as a support to liberty.
Montesquieu divides the government into three parts: “In each state there are three sorts of powers: legislative power, executive power over the things depending on the right of nations, and executive power over the things depending on civil right.”14 The final power is later glossed as the “power of judging.”15 Most continental European monarchies are relatively free because, while the legislative and executive powers are united in the person of the king, the power of judging is left to the people.16 The Italian republics are less free because all three powers are united in a single assembly, but are still somewhat free because the different members of the assembly check each other. Oriental despotisms such as the Ottoman Empire are completely unfree because all three powers are united in a single person.17
The Judicial Power
Montesquieu does not leave his account of the English constitution at the observation that, because all three powers are separated and check each other’s excesses in England, the English enjoy a great deal of liberty. Rather, he explains the specific role that each power plays in maintaining English liberty. The exercise of judicial power, in England, is left to the people through a system of jury trials.18 This serves to guard against the risk that “if it were joined to the legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.”19 The function Montesquieu imputes to the English system of jury trials is of neutralizing the potentially tyrannical power of judging which, “being attached neither to a certain estate nor to a certain profession, becomes, so to speak, invisible and null.”20
Montesquieu does not find in England a self-conscious, organized judicial power that provides a permanent countervailing force to the legislature and executive. Montesquieu sees jurors, rather than professional judges or lawyers, as the essential element of the English judiciary. The judiciary preserves liberty by merely executing the instructions of the law, not by independently reflecting on how judicial matters might be handled in a way that is consistent with liberty or by striving consciously to check the excesses of the other powers. The judicial power, which would threaten to turn a legislature arbitrary or an executive into an oppressor, is simply done away with as a source of political power in the English state. In a state that preserves liberty, “Among the three powers of which we have spoken, that of judging is in some fashion, null.”21
The Legislative Power
The legislative branch of the English government, parliament, is partly checked by its own internal division into Commons and Lords. Montesquieu explains the necessity of this division: “In a state there are always some people who are distinguished by birth, wealth, or honors; but if they are mixed among the people and if they had only one voice like the others, the common liberty would be their enslavement and they would have no interest in defending it.”22 The assembly of representatives gives the common people a stake in the success of the government, but, if the common people were represented together with the nobility, the nobility would be swamped because it would be so outnumbered. Therefore, under a one-man-one-vote system of representation, the nobility would not exercise any power. In fact, it would be victimized by the jealousy of the common people. It would then become a danger to the state because the state would not protect the interests of the nobility as a class. “Therefore,” Montesquieu says “the part they [the nobility] have in legislation should be in proportion to the other advantages they have in the state, which will happen if they form a body that has the right to check the enterprises of the people, as the people have the right to check theirs.”23
The House of Lords, which meets and deliberates separately from the House of Commons, is less powerful than the House of Commons, but serves as a brake on abuses by the Commons. After the judicial power is rendered in "some fashion, null," “There remain only two [powers]; and, as they need a power whose regulations temper them, that part of the legislative body composed of the nobles is quite appropriate for producing this effect.”24 The function of the Lords in Montesquieu’s sketch of the English constitution is actually rather reminiscent of the function of the Supreme Court in the American constitution. The Lords have the right to veto laws, but not (at least not always) to enact them:
as a hereditary power could be induced to follow its particular interests and forget those of the people, in the things about which one has a sovereign interests in corrupting, for instance, in the laws about levying silver coin, it must take part in legislation only through its faculty of vetoing and not through its faculty of enacting.25
The institution of the House of Lords is not intended to ensure that the interests of the lords always prevail over the interests of the commons. Its role is to ensure that the lords have some stake in the common liberty by preventing the commons from egregiously oppressing of the lords out of jealousy so that the lords’ loyalty to the constitution is not broken and so that the lords can function as a check on the Commons and the monarch.
The Lords are tasked with checking the other branches in two other ways: judging cases involving their fellow noblemen, and moderating the law.26 “Important men,” Montesquieu says, “are always exposed to envy; and if they were judged by the people, they could be endangered and would not enjoy the privilege of the last citizen of a free state, of being judged by his peers.”27 In order to ensure that the law obtains in cases in which nobles are the defendants, it is necessary to try nobles before a tribunal of nobles. The Lords constitute such a tribunal. Furthermore, offering the nobles a guarantee of being tried before a jury of their peers also helps the state to obtain another of the benefits of the existence of the Lords: elite investment in the survival of the constitution. In addition to the above powers, the Lords also serve as the tribunal which judges cases involving crimes committed by magistrates.28
What does Montesquieu mean when he says that, because “the law, which is simultaneously clairvoyant and blind, might be too rigorous in certain cases” and the Lords “moderate the law in favor of the law itself by pronouncing less rigorously than the law”?2 9This line is very puzzling at first because Montesquieu’s conception of liberty requires only that the laws, whatever they may be, obtain in practice. It is hard to see how such a conception could accommodate unilateral “moderation” of the law by some branch of government in a regime—such as England—with liberty as its purpose. What sorts of changes count as moderation of the laws? How can any process, apart from legislation, allow for deviation between the laws as made and the laws enforced without destroying liberty as Montesquieu understands it? These paradoxes are resolved when one remembers that Montesquieu held that there were “relations of fairness prior to the positive law.”30 Positive laws, written by the Commons, might not be so bad as to be worth of the Lords’ veto, but they might still violate these pre-political laws (Montesquieu defines laws as “necessary relations deriving from the nature of things,”31 so any pre-political relation of fairness would count as a law). Therefore, to prevent the positive laws from violating the pre-political laws and thereby destroying the liberty by creating an inconsistent system of laws that logically cannot obtain even in principle, the Lords might “moderate the law in favor of the law itself.”32
Montesquieu distinguishes between “the right to order by oneself, or to correct what has been ordered by, another the faculty of enacting” and “the right render null a resolution taken by another” which is the “faculty of vetoing, which was the power of the tribunes of Rome.”33 The faculty of enacting ought to be thought of as an enhanced version of the faculty of vetoing. The faculty of vetoing consists in the right to forbid a new law or to (implicitly) approve a new law, “this approval” being “no more than a declaration that one does not make use of one’s faculty of vetoing.”34 The faculty of enacting is the faculty of vetoing plus the right to propose new laws (referred to below as “the faculty of proposing” for the sake of symmetry, this is my term and not Montesquieu’s). Neither the Lords, nor (as we will see below) the executive have this right. It is retained by the Commons.
The Executive Power
The power of the legislature is checked by the executive, that is to say, by the monarch: “If the executive power does not have the right to check the enterprises of the legislative body, the latter will be despotic, for it will wipe out all the other powers, since it will be able to give to itself all the power it can imagine.”35 There are two ways in which the executive checks the legislature: through the power to convene and through the royal veto. If the legislature were not convened for a long time, either “anarchy” (if no laws were made), or tyranny (if the power of legislating fell to the executive in the legislatures absence) would follow.36 If the legislature were convened continuously, it might start to replace its own members without elections and the faith of the people in the government would be broken, which would cause the people to “become furious or would sink into indolence.”37 Therefore, in order to secure the investment of the people in the government (a goal that would seem to be parallel to the goal of securing the investment of the nobility in the government discussed above), the legislature must not be always convened. “There are some times more suitable than others for convening the legislative body; therefore, it must be the executive power that regulates, in relation to the circumstances it knows, the time of the holding and duration of these assemblies.”38 The legislature, and, by extension, the whole English regime, can only hold on to the people’s loyalty if the legislature is periodically convened and dismissed. The executive has the power to ensure this is done properly.
The executive power also checks the legislative power through its faculty of vetoing: “Executive power as we have said should take part in legislation through its faculty of vetoing; otherwise it will soon be stripped of its prerogatives.”39 In order to prevent the legislature from writing laws that give it powers that rightly belong to the other two branches, it is necessary that the executive should have the faculty of vetoing. The judiciary, rendered null, cannot veto, and the House of Lords acts only as a check on the House of Commons. Only the executive could stop an action undertaken by the whole legislature working in concert.
Montesquieu however delimited the area in which the executive would have freedom of action to foreign and military affairs. “The legislative power must not have the reciprocal faculty of checking the executive power. For, as execution has the limits of its own nature, it is useless to restrict it.”40 The executive controls “things depending on the right of nations,”41 which presumably end where the state’s borders begin. in all other matters the executive is to ensure that laws passed by the legislature are enforced consistently. If the executive began making laws, liberty would be destroyed.
The executive’s limitation to the faculty of vetoing in legislative matters extends, as per Montesquieu’s composition of the faculty of enacting out of the faculty of vetoing and the faculty of proposing, onto an interdiction against the executive “enter[ing] into the discussion of public business. It is not even necessary for it to propose, because, as it can always disapprove of resolutions, it can reject decisions on propositions it would have left unmade.”42
The Origins of English Liberty
It is necessary but not sufficient for the realization of liberty that a constitution be moderate as opposed, in Montesquieu’s typology, to despotic. “Democracy and Aristocracy are not free states by their nature. Political liberty is found only in moderate governments. But it is not always in moderate states.”43 In fact, Montesquieu identifies three conditions that must be met for a state to attain the highest degree of possible liberty:
1. Liberty must be the “peculiar purpose” of the state.44
2. The principles of the state’s constitution, which aim at liberty, must be well founded.45 That is to say, it is not enough for the constitution to be well intentioned, a law giver aiming to establish liberty might, with the very best intentions, write a constitution which fails to create mechanisms that block the ambitions of men seeking to expand their personal power at the expense of equal assurance of legal protection.
3. Well-founded laws aimed at securing liberty must obtain in practice, the possibility that they will not, despite Montesquieu’s focus in his analysis of laws promoting liberty on institutions that ensure that law as opposed to will prevails, is raised when Montesquieu says “It is not for me to examine whether the English currently enjoy this liberty or not. It suffices for me to say that it is established by their laws and I seek no further.”46
The resemblance between the laws of the physical world and the laws of a state with liberty is potentially deceptive: it might be read as a suggestion that Montesquieu thought there was something inevitable about liberty. “If one wants to read the admirable work by Tacitus,On the Mores of the Germans,” Montesquieu says, “one will see that the English have taken their idea of political government from the Germans. This fine system was found in the forests.”47 English liberty only arose because of the conquest of the Roman Empire by barbarian tribes speaking Germanic languages in Late Antiquity. Furthermore, this fortunate combination of intelligent law making and random historical chance (likely along with pre-historical climactic chance, based on certain other sections of The Spirit of the Laws) was not enough to establish English liberty once and for all. “Since all human things have an end, the state of which we are speaking will lose its liberty; it will perish.”48
Liberty and Legal Change
If laws are duly proposed and passed by the Commons, accepted by the Lords, and not vetoed by the monarch, liberty requires that they be enforced. Does this mean that the Commons, if it is willing to leave the enforcement of laws and the judgement of cases to the other branches, can make any law it likes, and liberty requires that these laws be enforced? Is the Commons free to enact the Anti-Decalogue if it can persuade the Lords and the monarch to acquiesce?
There are two checks on the power of the Commons to make laws beyond the requirement that the Lords and the executive consent. First, there are the pre-political laws of fairness discussed above in connection with the power of the Lords to moderate the law.
Particular intelligent beings can have laws that they have made, but they also have some that they have not made. Before there were intelligent beings, they were possible; therefore, they had possible relations and consequently possible laws. Before the laws were made, there were possible relations of justice. To say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that before a circle was drawn, all its radii were not equal. Therefore one must admit that there are relations of fairness prior to the positive law that establishes them, so that, assuming that there were societies of men, it would be just to conform to their laws; so that, if there were intelligent beings that had received some kindness from another being, they ought to be grateful for it; so that if one intelligent being had created another intelligent being, the created one ought to remain in its original dependency; so that one intelligent being who has done harm to another intelligent being deserves the same harm in return, and so forth.49
This provides certain obvious obstacles to the enactment of the Anti-Decalogue: a law stipulating “thou shalt not honor thy father and mother” would seem to be barred by the provision that “if one intelligent being had created another it ought to remain in its original dependency.”50 The above quotation would also seem to prohibit laws that rewarded or prevented the punishment of injuries that citizens did to one another.
Unlike ordinary positive laws, the pre-political laws of fairness could not simply be legislated away by a diligent legislature removing one law at a time. Montesquieu’s argument that “to say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that before a circle was drawn, all its radii were not equal,”51 is instructive. A circle is defined as that shape whose center is equidistant from every point on its perimeter. It would be impossible to produce a coherent system of laws that mandated that the pre-social requirements of fairness be violated, because such relations are, on Montesquieu’s view, requirements of logic. Therefore they are unabolishable. Attempting to enact laws contrary to the pre-political laws of fairness would create an incoherent legal system whose contradictory requirements could not be followed, even in principle.
The second constraint on the proposing power of the Commons is Montesquieu’s definition of liberty in relation to the citizen. “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security.”52 Tranquility would be undermined if the laws changed so quickly that citizens’ plans were constantly being ruined. Therefore, the speed at which the Commons could propose the abolition of old laws is limited by the reliance interest that the citizens have in the existing laws. It cannot propose legal change too quickly. Outside of these two constraints, the Commons would have very broad power to propose any legislation it felt was appropriate.
1Montesquieu, The Spirit of the Laws [SL], Cambridge University Press translation, 154.
2Montesquieu, SL, 154.
3Montesquieu, SL, 154-155.
4Montesquieu, SL, 155.
5Montesquieu, SL, 160.
6Montesquieu, SL, 160.
7Montesquieu, SL, 157.
8Montesquieu, SL, 159.
9Montesquieu, SL, 159.
10Montesquieu, SL, 4.
11Montesquieu, SL, 156.
12Montesquieu, SL, 156.
13Montesquieu, SL, 156.
14Montesquieu, SL, 156.
15Montesquieu, SL, 157.
16Montesquieu, SL, 157.
17Montesquieu, SL, 157-158.
18Montesquieu, SL, 158.
19Montesquieu, SL, 157.
20Montesquieu, SL, 157; The translation has "state" instead of "estate" but I think estate (in the sense of "the estates of the realm" or "the third estate") is probably a more accurate rendering of état here.
21Montesquieu, SL, 160.
22Montesquieu, SL, 160.
23Montesquieu, SL, 160.
24Montesquieu, SL, 160.
25Montesquieu, SL, 161.
26Montesquieu, SL, 163.
27Montesquieu, SL, 163.
28Montesquieu, SL, 163.
29Montesquieu, SL, 163.
30Montesquieu, SL, 4.
31Montesquieu, SL, 3.
32Montesquieu, SL, 163
33Montesquieu, SL, 161.
34Montesquieu, SL, 161.
35Montesquieu, SL, 162.
36Montesquieu, SL, 161.
37Montesquieu, SL, 162.
38Montesquieu, SL, 164
39Montesquieu, SL, 164.
40Montesquieu, SL, 162.
41Montesquieu, SL, 156.
42Montesquieu, SL, 164.
43Montesquieu, SL, 155.
44Montesquieu, SL, 156.
45Montesquieu, SL, 156.
46Montesquieu, SL, 166.
47Montesquieu, SL, 165-166.
48Montesquieu, SL, 166
49Montesquieu, SL, 3.
50Montesquieu, SL, 3.
51Montesquieu, SL, 3.
52Montesquieu, SL, 157.
53Montesquieu, SL,159
54Montesquieu, SL, 155.
55Montesquieu, SL, 164.