Montesquieu and the Concept of the Non-Arbitrary State

ABSTRACT

While Montesquieu (1689–1755) is often regarded as the thinker who discovered the importance of fundamental principles such as the rule of law and the separation of powers, systematic research of his theory of the state is surprisingly limited. In this article, I argue that his masterpiece, The Spirit of the Laws (1748), points to a theory of the non-arbitrary state. Montesquieu’s comparative study of various governments demonstrates that modern liberty depends on the rule of law. Since many states have laws but few of them guarantee liberty, he stressed that the rule of law requires the separation of the judicial from the legislative and executive powers. The constitution of an independent judicial branch separates the sphere of justice from the political sphere, which creates the basic structure of the non-arbitrary state. Depending on the distribution of power in either of the two spheres, non-arbitrary states can guarantee their citizens more or less liberty. The concept of the non-arbitrary state thus illuminates Montesquieu’s significance for the variety of political projects that emerged in the age of revolutions.

KEYWORDS:

• Montesquieu
• The Spirit of the Laws
• rule of law
• distribution of powers
• non-arbitrary state

Acknowledgments

I am thankful to Shlomit Stein, Vandad Neshati-Melikyans, Ilya Levin, Peter Giraudo, and Andrew Arato for their comments and feedback on earlier versions of the article. I also thank the editors of The European Legacy and two referees for their invaluable comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 For Montesquieu’s influence on the political thought of the American Revolution, see Lutz, “The Relative Influence of European Writers,” 189–97; Spurlin, Montesquieu in America.

2 Madison, “Federalist No. 47,” 240–41; Storing, The Anti-Federalist, 217–18.

3 Cobban, “The Parlements of France,” 74; Shklar, Montesquieu, 116.

4 Condorcet, “Observations,” 261–62, 274; Sieyès, “What is the Third Estate,” 147.

5 For the republican interpretation, see Strauss, What Is Political Philosophy, 49–50; Pangle, Montesquieu’s Philosophy of Liberalism, 48–160; Pocock, The Machiavellian Moment, 462–505; Rahe, Montesquieu and the Logic of Liberty, 63–146.

6 For the monarchist interpretation, see Krause, Liberalism with Honor, 32–66; Manin, “Montesquieu et la politique moderne,” 171–232; Spector, Montesquieu; Sonenscher, Before the Deluge, 95–172.

7 DeDijn, “Montesquieu’s Controversial Context,” 68.

8 Montesquieu, My Thoughts, 267. Hereafter abbreviated as MT with page numbers cited in the text.

9 Montesquieu, Spirit of the Laws, 8. Hereafter abbreviated as SL with page numbers cited in

the text.

10 Callanan, Montesquieu’s Liberalism, 1–30, 259–72, 12, 102–45.

11 For an overview of the debate on despotism in Montesquieu, see Sullivan, Montesquieu and the Despotic Ideas, 1–22; Krause, “Despotism in The Spirit of Laws,” 232–72.

12 Callanan, Montesquieu’s Liberalism, 105–6.

13 Richter, Political Theory of Montesquieu, 90 (original emphasis). Richter stresses that Montesquieu called the judicial function “the power of judging (la puissance de juger) rather than the judicial power (le pouvoir judiciaire).” In this article, both terms are used interchangeably.

14 On liberty in Montesquieu, see DeDijn, “On Political Liberty,” 181–204; Krause, “Two Concepts of Liberty in Montesquieu,” 88–96.

15 For positive and negative liberty, see Berlin, “Two Concepts of Liberty,” 118–72.

16 DeDijn, “On Political Liberty,” 181–204.

17 Neumann, The Democratic and The Authoritarian State, 132. In My Thoughts, Montesquieu argues that a “free people… is the one that enjoys the form of government established by Law” (MT, 255).

18 The other two “kinds of government” are monarchy and republic (Montesquieu, SL, 10).

19 In Notes on England, Montesquieu remarks that “good laws” exist “everywhere” (90), which implies that even despotic states probably have some good laws.

20 To this effect, Montesquieu establishes: “In despotic states, each household is a separate empire” (SL, 34).

21 In Book 19, Montesquieu analyses the role of mores and manners in maintaining society and government in different countries and under different regimes (SL, 308–36). On Montesquieu’s remarks regarding the influence of cultural factors, such as customs, mores, and manners, on politics and government, see Callanan, Montesquieu’s Liberalism, 146–74; Mosher, “Monarchy’s Paradox,” 159–230.

22 On a related note, Montesquieu argues regarding the despotic Republic of Venice that there all political bodies are dominated by the nobility, which makes the state “nearly a single power” (SL, 158).

23 In the early text Reflections on Universal Monarchy, Montesquieu argues that “the rule of law” is “so conducive to” the “preservation” of the European kingdoms that they would sink “into decline” without it (175).

24 Levy, Rationalism, Pluralism, and Freedom, 149 (original emphasis). For Montesquieu’s discussion of intermediate groups, see DeDijn, French Political Thought from Montesquieu to Tocqueville, 22–26; Richter, “Montesquieu and the Concept of Civil Society,” 33–41.

25 DeDijn, “Montesquieu’s Controversial Context,” 82; Keohane, Philosophy and the State in France, 407.

26 Mousnier, The Institutions of France, 253.

27 On power and functions of parlement, see Cobban, “The Parlements of France,” 64–80.

28 Mousnier, The Institutions of France, 259. On the procedures guiding registration and remonstrance, see Hurt, Louis XIV and the Parlements, 1–3; Swann, Politics and the Parlement of Paris, 68–70.

29 For a similar assessment, see DeDijn, “Montesquieu’s Controversial Context,” 86.

30 On the lit de justice, see Holt, “The King in Parlement,” 507–23. On additional powers of the king to force parlement to register laws, see Cobban, “The Parlements of France,” 66–67.

31 Montesquieu argues in My Thoughts that “the laws of a monarchy are the wills of all the monarchs who have reigned” (MT, 678).

32 On the relevance of the judicial power for Montesquieu, see Vile, Constitutionalism and the Separation of Powers, 96; Mosher, “What Montesquieu Taught,” 12.

33 Regarding honor, see Krause, Liberalism with Honor, 32–66; Mosher, “Monarchy’s Paradox,” 159–230.

34 Cohler, “Introduction,” xxiii.

35 Mousnier, The Institutions of France, 77.

36 Mettam, France, 57.

37 Campbell, Power and Politics in Old Regime France, 228; Miller, State and Society in Eighteenth-Century France, 57, 63–64.

38 Montesquieu, “Discourse on the Equity,” 141, 143.

39 DeDijn, “Montesquieu’s Controversial Context,” 66–88; Krause, Liberalism with Honor, 32–66; Mosher, “Monarchy’s Paradox,” 159–230.

40 Breen, “Law, Society, and the State in Early Modern France,” 379–80. Scholars estimate that “twenty to thirty thousand royal bailiwick and seigneurial benches” were “dispensing justice to more than 85 percent of the French population” during the seventeenth and eighteenth centuries (Schneider, The King’s Bench, 1).

41 On this subject, see Hardwick, Family Business, 85; Hayhoe, Enlightened Feudalism, 211.

42 On the French system of appeals, see Mousnier, The Institutions of France, 253, 261–63.

43 In Notes on England, written before Spirit of the Laws, Montesquieu makes the bold statement that England was “the freest country in the world” because “the prince” lacked the power “to do any imaginable harm to anyone at all, for the reason that his power” was “regulated and limited by law” (94).

44 For an overview of the debate around this chapter, see Shackleton, “Montesquieu, Bolingbroke, and the Separation of Powers,” 25–38; Courtney, “Montesquieu and English Liberty,” 273–90.

45 Actually, noblemen were only tried by a jury of peers when indicted for a felony or treason (Brooks, Law, Politics and Society, 291). Thus “the jury of peers was not an important phenomenon in the general administration of the criminal law” (Hay, “The Courts of Westminster Hall,” 23).

46 Green, “A Retrospective on the Criminal Trial Jury,” 359.

47 Langbein in “The English Criminal Trial Jury,” 27–28, explains that defendants had the right to reject up to 20 jurors without giving reasons. He also stresses that this right was seldom exercised in eighteenth-century England, because defendants did not understand their rights, had them not properly explained, or were afraid that challenging the jury could have negative consequences.

48 Regarding Montesquieu’s ideas about juries, see Lerner, The Surprising Views of Montesquieu and Tocqueville about Juries, 1–55.

49 Langbein, “The English Criminal Trial Jury,” 34–36.

50 On justices of the peace, see Emsley, “The English Magistracy,” 28–38; Lemmings, Law and Government in England, 26–40; Hay, “Dread of the Crown Office,” 19–45.

51 Lemmings, Law and Government in England, 32–33.

52 Ibid., 37; also see Hay, “Patronage, Paternalism, and Welfare,” 29.

53 On jury selection, see Langbein, “The English Criminal Trial Jury,” 24–28.

54 Ibid., 24–25.

55 Green, “A Retrospective on the Criminal Trial Jury,” 386.

56 Morgan, Inventing the People, 58.

57 On the second chapter about the English regime, see Courtney, “Morals and Manners in Montesquieu’s Analysis,” 36–48.

58 Hay, “Crime and Justice,” 46.

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Felix Petersen

Felix Petersen, PhD, is lecturer and faculty member at the Institute of Political Science, at the University of Münster, Germany. His research focuses on democratic and autocratic theory, the relationship of political ideas and practices, the politics of constitution-making, and comparative constitutional theory. His publications include two volumes on constitutional theory, The Failure of Popular Constitution-Making in Turkey (Cambridge, 2020) and Die Grenzen der Verfassung, Zeitschrift für Politik (2018); one volume on pragmatist political theory, Pragmatistische Sozialforschung (Metzler, 2021), as well as several peer-reviewed articles and book chapters.