A Brief Primer on Montesquieu
and Laws
Christopher
Cocca
At the heart of every kind of human political system is a foundation of codified standards that govern the individual behavior and mutual interaction of the system’s members. We call these standards “laws,” and they reach us at almost every level of daily life. What, if anything, besides the common consent of the members of the political unit give these laws their legitimacy and make them worth obeying in the first place? The political philosopher Montesquieu argued that, contrary to the views of Hobbes and Locke, certain common factors apart from the instinct of self-preservation exist in all men by virtue of their shared humanity, factors which comprise the core of their being, determine their innate response to laws that govern the affairs of men and states, and compel both to act accordingly.
While it is clear that there are certain physical laws (gravity) and certain biological laws (a living creature must be nourished) that none can escape from, the extent to which commitment to laws or codes of conduct in a certain regime can be defined as universal is a matter of much more lively philosophic debate. Apart from the given laws of nature and physics, what, if any laws are followed by all men? If no such laws do exist, what compels man to follow any laws besides the ones he must (the laws of nature and physics)? Fear? Timidity? A desire to civilize himself into societies, colleges, and police departments?
Are there any sets of overarching laws besides the precepts dictated by the physical word and our own biology, precepts that apply equally in all instances to all mankind, or are most laws simply the moral constructs of men at war and societies in search of order or religion? If there do indeed exist overarching laws of conduct, are they merely the cold ordinances of self-preservation, or are there certain laws that all humans, by the simple virtue of their common humanity, innately share and strive to abide by?
The extent to which what Montesquieu calls positive (as opposed to natural) laws can be said to apply to all men is a matter of debate, but one set of laws which all men must follow and most men do are the natural or biological laws upon which survival on this planet depends. From this basic set of laws, which are largely taken for granted and ratified simply by man's desire to survive, other, more complex laws begin to develop.
Laws against theft, murder, rape and others are laws that most members of most societies throughout human history have agreed upon. As human beings, we almost universally believe that murder and theft and rape are deviant actions deserving of some sort of punishment, but why? Some would say that man outlawed murder in the interests of self preservation and, in the vein of Hobbes, that man by and large made the initial choice that murder was "bad" not out of any kind of moral aversion to the act, but out of a fear of retaliation from either an avenging relative or a government intent on maintaining order. This argument holds that men follow the laws of self-preservation instinctually and that all other laws are followed simply because they further ensure the protection of life or the property (food stuffs, clothing, shelter) necessary to maintaining life. In this view, moralities, religions, and all the laws derived thereof are further tools mankind uses to set his mind at ease, and they offer no true basis for any kind of legitimate law because the only law with any true basis whatsoever is the ultimate law of survival at any cost. In fact, Hobbes went so far as to argue against religious devotion and dedication to beliefs for the reason that such fervor tended to make man forget his obedience to the primal law of survival and would enjoin him to take unnecessary risks with his life, i.e., fighting for his political or religious beliefs. Thus for Hobbes, laws as well as rights come from the fact that men will agree to establish civic codes based on the protection of the freedom to follow the only true overarching law of the universe: man is born in a state of war and will do all he can to survive in it. Any semblance of any kind of morality is motivated by the fear of death or retribution, and the law of self preservation is the only common tie among men that would otherwise kill each other at the first chance.
The argument offered by Montesquieu, in direct opposition to philosophers like Hobbes and Locke, is that it is not out of fear or self preservation that men follow laws, but that something else motivates them to follow the international, public, and civic laws they encounter in life. From the beginning, Montesquieu's treatment of law and his theories on why men follow it are tempered by his own view of the state of nature. Whereas Hobbes portrays the state of nature as a constant war and the laws of survival as the only rules of engagement, Montesquieu holds that in addition to the laws of survival, there are other laws man follows by his nature as a social being (laws that "derive exclusively from the constitution of our being"[1] ) and are thus in themselves natural laws. In direct contrast to Hobbes, the first of these natural laws (itself a law of survival as well) is the desire for peace. Montesquieu argues that precisely because the first thoughts of the first men would be concerned with self preservation, few if any of these men would engage in the kinds of life threatening activities Hobbes’ warring men would. According to Montesquieu, a man in the state of nature “would feel only his weakness; his timidity would be very great…No one would seek to attack anyone else [because of his chance of survival are dangerously unknown]; peace would be the first law of nature."[2] The second and third natural laws are also a law of survival, and these are "that which would prompt [man] to seek nourishment" and the desire to reproduce. But the fourth natural law, which refers to the reason men come together is societies, is by far the most compelling. While Hobbes claims that men organize out of mutual dedication to self-preservation and exchange certain private rights for the guaranteed of protection, Montesquieu claims that "the desire to live in society"[3] is a law of nature that comes from man's natural quest not for protection but for knowledge, a distinction which sets him apart from all other social animals that congregate but do so solely for the sake of survival.
According to Montesquieu, it is from this innate desire to form societies that both the necessity of laws and the common commitment of most men to follow them derive. Because he believes that the creation of societies facilitate the creation of the state of war, it follows that international, public, and civil laws outlining the rules of this so-called war must be established and maintained in order to preserve that natural phenomenon we call civilization. Because the desire to form societies stems from our quest for knowledge (which is itself the practical use of our reason), Montesquieu argues "law in general is human reason, to the extent that it governs all the peoples of the earth. The political and civil laws of each nation ought to be only particular cases of the application of human reason."[4] Thus, the overarching force which unites all men to the law and all laws in some way to each other, that innate dedication to law and order most men share, is not the fear of death but the practical application of human reason around the world. Because law derives from human reason, and "laws" themselves are particular expressions of reason in and unique era and locale, all laws are, according to Montesquieu, united in "spirit" as the offspring of human reason applied to the maintenance of society.[5] Laws are thus followed because men believe societies, which enable them to learn, are indeed good things worthy of maintaining. A value judgment is being made, and the decision that obeying laws for the sake of preserving society, in effect preserving knowledge, becomes itself a moral kind of act which most men around the world support and believe in as the best way to lead their daily civic and political lives—a notion which most states in turn attempt to uphold as demonstrated by the prevailing desire for peace between them.
Notes:
[1] Montesquieu, Selected Political Writings, Melvin Richter, translator and editor. Hackett Publishing Co., 1990. pg 111.
2 Montesquieu, 112.
3 Montesquieu, 112.
4 Montesquieu, 114.
5 Montesquieu, 114.
Copyright Christopher Cocca 2000. All Rights Reserved.