The Spirit of Laws

In the final three books of Part 1, Montesquieu expands on how the principles of action determine the forms of laws in different governments. In Book 8, he discusses how these principles of action can be corrupted.

Book 6 is entitled, “the simplicity of civil and criminal laws, the forms of judgments, and the establishment of penalties,” and considers these things as they relate to the three fundamental forms of government. In the despotic state, the laws are very simple, which contrasts with the monarchy and even more so with the republic. In fact, any despotic “laws” are tentative: “[T]he judge himself is the rule” (76), and the will of the judge (or prince) is beholden to neither constitution nor collaboration. Monarchical or republican law is much more complicated. In the monarchy, the judges enforce the letter of the law when the law is clear; when it is not, they seek out the “spirit” of the law. The monarch should not act as the judge since this would destroy the constitution and eliminate the roles of what, in Book 2, the author called “intermediate, subordinate, and dependent powers” (17). Montesquieu invokes no shortage of historical examples to make this point, the Romans being a favorite example: “Some of the Roman emperors had a craze for judging. No reigns stunned the universe more by their injustices than these” (79). Republics generally have the most rigid and complicated legal systems and seek to implement the letter of the law whenever possible.

The penalties for violating the law should also vary according to government type. In “moderate” states, which include healthy republics and monarchies, such punishments (be they criminal or civil) should be less severe than under despotic regimes. In the latter, since virtue and honor are not cultivated therein, people fear for their lives, and harsh penalties are the safest way to enforce law. In moderate and virtuous societies, though, Montesquieu writes that “the greatest penalty for a bad action will be to be convicted of it” (82), meaning that the shame of the conviction is greater punishment than any actual penalty.

Montesquieu argues that states should be extraordinarily cautious about overpenalizing their citizens. Governments may want to quickly correct a societal problem by instituting an unduly harsh penalty, but in the long run this erodes the spring (or principle) of the government. The harsher the penalties, the more the citizens become accustomed to fear and despotism, undermining virtue or honor in determining civic behavior. Montesquieu writes, “There are two kinds of corruption: one, when the people do not observe the laws, the other, when they are corrupted by the laws; the latter is an incurable ill because it lies in the remedy itself” (86). To reinforce this point, he uses examples of Japanese despotism as well as the transition from the Roman republic to the Roman empire; Montesquieu frequently cites ancient historians, like Livy, to buttress his claims.

In general, Montesquieu finds it imperative that the punishment fit the crime. He defends the power of pardon, abhors the unnatural implementation of torture, and supports a mixture of pecuniary and corporal punishments. Pecuniary punishment ought to be proportional to the financial situation of the convict. Book 6 ends by discussing the uniqueness of clemency in the monarchical government. Despotic states avoid clemency (merciful leniency) because harshness better enforces fear, while, in republics, the virtuous spirit of equality cries out against clemency.