On the Spirit of the Laws (Upper and Lower)

Author: (French) Montesquieu Sun Lijian
Publisher:
Publishing Date: 2002-12-01
Features: Montesquieu was a prominent political philosopher and Enlightenment thinker of eighteenth-century France, as well as the founder and pioneer of bourgeois theory. His work The Spirit of the Laws is not only one of the most important political philosophy texts in the West since Aristotle but also the earliest classical masterpiece of bourgeois jurisprudence, exerting a profound influence on the development of modern bourgeois political science.
I. The Theories Expounded in This Work
In this work, the theories primarily interpreted are as follows:
(1) Political Theory
1. On the Classification of Regimes The Spirit of the Laws divides regimes into three types: republics, monarchies, and autocracies. He regarded the republican regime as a good one and praised it highly, while he mercilessly criticized autocratic regimes and the church. The tyrannical rule of France and the alliance with the church were his targets of attack. He believed that the rotten feudalism and tyrannical governance then existed must be abolished, while democracy and freedom were the practical goals pursued by his theory. Montesquieu further proposed the principles or driving forces of various regimes. He stated that the principle of a republic is virtue, that of a monarchy is honor, and that of an autocracy is fear. Although his views had significant flaws, we cannot deny that his arguments contained many insightful and enlightening conclusions. At the same time, he launched a fierce attack on autocratic regimes and feudal evils, which was of great value in burying the feudalism and tyrannical governance of the time.
2. Separation of Powers and Constitutional Monarchy
In The Spirit of the Laws, Montesquieu lauded the constitutional monarchy of England, believing that the separation of executive, legislative, and judicial powers, with checks and balances, was the guarantee of civil liberties. Whether the English system was truly like this is another question, but the importance lies in the theory praising the constitutional government that succeeded the bourgeois revolution, which in turn criticized the feudal autocratic regime of France. Thus, the advocacy of constitutional monarchy carried progressive significance at the time.
At the same time, Montesquieu’s theory of separation of powers was not a hollow political theory but a living political program for the era. Essentially, it was "classical separation of powers," representing the specific demands of the emerging bourgeoisie to participate in governance. It called for France to achieve a compromise between the aristocracy and the bourgeoisie, similar to England, where the bourgeoisie would gain legislative and financial control, while the aristocracy retained executive power. This political program was clearly "compromising," but even so, without intense political struggles, it could not have been realized. Therefore, this advocacy was revolutionary and progressive at the time.
3. "Geographical" Theory
This is also one of the famous theories in The Spirit of the Laws. It posits that geographical factors, particularly climate, soil, and the like, are related to the character and sentiments of the people, and laws should take these into account. It is well known that geographical environment is not the determinant of society and regime. Montesquieu was aware of this point; the basic spirit of The Causes of the Decline and Fall of the Roman Empire and The Spirit of the Laws, as well as the examples cited, prove it. He believed that the "spirit" of law, in addition to geographical factors, also included education, customs, and many other elements. The geographical factors he referred to were not absolute.
(2) Legal Theory
The Spirit of the Laws proposed many theories on law, such as opposing torture, advocating proportionate sentencing, insisting that punishment must have educational significance, using public opinion as a tool against crime, advocating for punishment of actions rather than thoughts or words, attacking the church’s so-called crime of desecration and irrational punishments, and offering a series of arguments on trial, evidence, torture, and the like. All these theories were critiques of the savage feudal criminal law of the time, responses to the tightening legal oppression and brutal suppression of the bourgeoisie and common people by the dying feudal ruling class, and legal justifications for the demands of the emerging bourgeoisie for personal safety, property security, and freedom of speech and publication. These demands were necessary conditions for the bourgeoisie’s victory.
(3) Economic Theory
The Spirit of the Laws contains many economic theories.
1. The most important one is the advocacy of private property as a natural right of humans. This stance was directed against the church and feudal ruling class’s seizure of private property. It fully demonstrated that Montesquieu was the spokesperson of the bourgeoisie.
2. He advocated the development of industry and commerce and opposed excessive taxation, believing that this could enrich people, develop culture, promote international understanding, and advance world peace. Regarding the vast estates concentrated in the hands of feudal lords and the church, he advocated small-scale farming.
3. He believed that labor was the source of wealth. This represented the enterprising spirit of the emerging bourgeoisie and was a progressive theory opposing the feudal parasitic system.
4. He strongly opposed slavery, citing civic rights, natural rights, and economic reasons as grounds for his opposition. This was because the expansion of feudal colonialism had greatly developed slavery at the time.
In summary, Montesquieu’s theories broadly touch upon the fundamental issues of human society and its core interests. His theories had both a destructive and constructive aspect: destructive of the church, feudalism, and tyranny; constructive of capitalism. For his time, these pointed the way for the development of human society.
II. The Theory of Separation of Powers and Its Significance
As a law student, I am particularly interested in Montesquieu’s theory of the separation of powers in this book. Below, I will briefly elaborate on this theory.
The principle of separation of powers, as a theory, was first proposed by the British bourgeois thinker John Locke. Under feudal autocratic rule, the emperor or king held supreme power, overseeing legislative, executive, and judicial authority. In the 17th century, England experienced a bourgeois revolution. In 1689, King William accepted the Bill of Rights, and in June 1701, he signed the Act of Succession. These two acts established the constitutional monarchy in England based on the principle of separation of powers.
Locke proposed the separation of legislative and executive powers (government power) on the basis of the existing political reality, stating that the legislative power was higher than the executive power. The legislative and executive powers he referred to were the House of Commons and the King, respectively. Thus, the separation of powers proposed by Locke meant the division of the king’s privileges representing the feudal aristocracy, with legislative and judicial powers gradually seized. Under the historical conditions of the time, his theory of separation of powers had significant progressive political significance.
Montesquieu further developed and refined Locke’s theory of separation of powers, advocating the establishment of a state with three powers separated and checked. He stated, "To prevent the abuse of power, it must be constrained by power." "When the legislative and executive powers are concentrated in the same hands, freedom no longer exists, because people will fear this king or parliament enacting tyrannical laws and executing them tyrannically." He further explained the checks and balances between various powers based on the British political system, pointing out that the legislative body consisted of two parts that could mutually restrain each other through opposing rights. Both parts of the legislative body were subject to the constraints of the executive power, while the executive power was also constrained by the legislative power, all moving forward in coordination. Compared to Locke’s theory of separation of powers, Montesquieu’s theory had significant developments. Montesquieu’s division of powers was clearer and more reasonable, and most importantly, he not only explained the separation of powers but also further elaborated on how to resolve conflicts and contradictions in the exercise of power. This not only inspired the bourgeois revolution in politics but also provided a reference model for how future states could prevent the abuse of power and effectively control it.
The book is the main work of Montesquieu (Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, 1689–1755), a prominent Enlightenment thinker in the mid-18th century, one of the main founders of modern political and legal thought, and the founder of the modern historical school. It is called "the most comprehensive political work since Aristotle; the most progressive political theory up to his time."
The legal, political freedom, and power separation advocated by the book were a powerful critique of theology and feudal autocracy, becoming the political program of the subsequent bourgeois revolution. Especially the power separation and checks and balances theory formally proposed by Montesquieu had a direct and far-reaching impact on modern bourgeois political practice and thought. Through the practice of bourgeois revolutions in France and the United States, it has become the organizational principle for establishing democratic systems and state power structures in bourgeois states.
Montesquieu focused not on specific legal norms themselves but on the "spirit of law"—the inevitability and patterns of law aligning with human reason. Therefore, he placed law in a decisive position, believing that only law could guarantee people’s freedom of rights, while autocracy was a disregard for human nature and a trampling of freedom. He further explored the institutional conditions for the existence of freedom and thereby found the basic means to restore freedom—separation of powers, where power constrained power to prevent abuse. He advocated a political system of power separation and checks and balances under constitutional supremacy, combining law, freedom, and the constitution to lay the basic framework for constitutional theory. This was also Montesquieu’s most outstanding contribution to political theory.
His contributions were also reflected in the historicalist and holistic research methods he employed. His entire theory was based on the analysis of historical facts and the political, social, and legal practices of various countries throughout history. He grasped the laws of change in a country’s regime and legal development by examining the dynamic relationships and influences among social-historical-cultural factors and the living environment of the people. This surpassed traditional methods of political and legal research and, during the "pre-scientific" period of social theory, advanced the study of political and legal science by a significant step.
The complete Chinese translation of the book is divided into two volumes and six volumes, with thirty-one chapters. The main content can be summarized as follows:
① The definition of law, the relationship between law and regimes, the types of regimes and their respective principles (Chapters 1–10).
② Political freedom and the theory of separation of powers, the British example (Chapters 11–13).
③ The theory of the relationship between geography and politics and various deductions (Chapters 14–19).
④ Issues such as industry, commerce, population, and religion (Chapters 20–25).
⑤ Changes in Roman and French law, and feudal legal doctrines (Chapters 27–28, 30–31).
⑥ General conclusions (Chapters 26 and 29).