The Spirit of Laws

The general spirit is the spirit of a nation resulting from the confluence of influences upon a people. Montesquieu writes, “Many things govern men: climate, religion, laws, the maxims of the government, examples of past things, mores, and manners; a general spirit is formed as a result” (310). Though this term infrequently appears in The Spirit of the Laws, Montesquieu has the general spirit in mind when evaluating history, religion, climate, and culture. Each of these influences should inform legislation. According to Montesquieu, “The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our natural genius” (310). Such inspired laws reflect what is good for a particular people and the particular spirit forged in a local environment.

For Montesquieu, laws are “the necessary relations deriving from the nature of things” (3). Prior to positive laws are the fundamental laws of nature. All people are subject to the laws of nature, which are invariable and necessary for all beings. Humans are subject to the physical laws of the material world and to intelligible laws of reason, and the positive laws instituted by men ought to account for this. All laws enforce a necessary relation of one thing to another. The positive laws of civil society enforce the relationship of a citizen to other citizens and of the citizen to the government. Unlike laws of nature, these laws can be broken. Therefore, the law requires enforcement through penal and corporeal punishment.

Montesquieu is well aware that “liberty” has meant many things to many people, and that these significations can be disparate. Many people (especially in democratic states), he claims, think that liberty is the right to do whatever one wants. This is misguided. Political liberty, he writes, “is the right to do everything the law permits” (155). No citizen can have the right to do more than the law permits because if they did, then others could as well. This would jeopardize everyone’s safety and plunge the people back into a “state of nature,” that is, a wild anarchical situation outside of civil society. Although Montesquieu believes that liberty includes all that is permissible under the law, the law of a moderate government ought to take a paternal hand in directing its citizens toward right action. True liberty consists in doing “what one should want to do” and not what one ought not do (155). Having more liberty, in this sense, means being nudged by the government toward more politically virtuous behavior. Liberty is, then, primarily a concern for republican governments.

Political liberty comes in two forms. Citizens have a degree of liberty in relation to one another, and a degree of liberty in relation to the constitution of the state, which is discussed below.

These three terms refer to different domains of the law, and taken together they form the totality of positive law. Each bears on the relationship between one legal entity and another. The right of nations deals with the international law, or the law between nations. Political right is concerned with the relationship between the citizenry and their government, while civil rights concern the relationship of citizens to one another. Governments and citizens can both infringe on political right if they violate the constitution (and there is a constitution). The traitor infringes on political right. The murderer of a private citizen infringes on civil right. All three types of right are implemented in culturally and socially specific ways, but there is also a universal law in which they all participate across culture. According to Montesquieu, “The right of nations is by nature founded on the principle that the various nations should do to one another in times of peace the most good possible, and in times of war the least ill possible, without harming their true interests” (7). This seems to be a natural law that applies to political right and civil right as well. As such, it is founded on primitive reason.