The Spirit of Laws

Part 5 discusses the relationship between religion and law. In Book 24, Montesquieu clarifies that his investigation of religion is political. He makes no claims about the metaphysical truth or falsehood of any given religion; he is concerned simply with the political impact of various religions. That said, he is quick to articulate the political virtues of Christianity, which, he claims, is antithetical to despotism. He writes, “Remarkably, the Christian religion, which seems to have no other object than the felicity of the other life, is also our happiness in this one!” (461). Christianity, like commerce, “softens the mores” of a society (462), and Montesquieu says it should be embraced over the religion of Mohammad (Islam) for this reason, without regard for questions of metaphysical truth. Though Christianity was unknown to the ancients, Montesquieu believes that their societies were still well-served by their philosophies, which functioned as religions. Among these philosophies, Montesquieu is especially taken by Stoicism, a belief system that dominated the worldview of many Roman patricians for centuries. He writes of the Stoics,

Born for society, they all believed that their destiny was to work for it; it was less burdensome as their rewards were all within themselves; as, happy in their philosophy alone, it seemed that only the happiness of others could increase their own (466).

Stoicism thereby primed the Romans to work for the good of the republic, not personal wealth or pleasure, because true personal gain was united with good for the other. Montesquieu notes that religion serves to buttress the security of a state when civil law is weakened or lacking; the social function of religion is extremely strong in despotic countries where the rule of law is totally lacking. He notes that, from a practical, political perspective, there are many difficulties in universalizing religions. They do not easily transfer into new countries. He says, for instance, that the mores and habits of the Chinese are so thoroughly different from the spirit of Christianity that the success of Christianity in China is unlikely.

Book 25 discusses the relation between religion and law. Montesquieu begins by discussing some of what draws people to religion, like worship in beautiful temples, idolatry, and a wealth of ritual. Stringent ritual makes religion a larger part of one’s active life and therefore more integral to identity. The laws should limit the wealth of the clergy. The laws of a state need not permit the practice of numerous religions, but if it does, then tolerance should be enforced between various sects. He writes, “[E]very religion which is repressed becomes repressive itself; for as soon as, by some chance, it can shake off oppression, it attacks the religion which repressed it, not as a religion, but as a tyranny” (487). Religious wars ensue, with which Montesquieu’s contemporary Europeans would be all too familiar. He writes that one of the best ways of decreasing the hold of religion over a population is by adding to the comforts of life, which can make a person less concerned with the afterlife. He then includes a “humble remonstrance” to the inquisitors waging their campaign in Spain and Portugal; this is really a complete condemnation of the inquisition and of the disturbing public penance enforced on heretics. He writes to the inquisitors, “You want us to be Christians, and you do not want to be Christian yourselves. But if you do not want to be Christians, at least be men” (491).

Book 26 deals with the proper ordering of different kinds of laws: “Men are governed by various sorts of laws” (494). These include natural and divine right, ecclesiastical right, the right of nations, political right, civil right, domestic right, and more. Part of the business of statecraft is to understand these different laws and to keep particular laws within the domain to which they are actually applicable. These different domains of laws have different objects. For instance, human laws (positive laws) are distinct from divine laws and concern enacting a different sort of object: “Human laws enact about the good; religion, about the best. The good can have another object because there are several goods, but the best is one alone and can, therefore, never change” (495). As such, the legislator might be heedless to institute a new religion since what is deemed best cannot change; in contrast, since what is good is myriad, this is open for revision. As Montesquieu has said, the mores of a people are less open to change in religion than in law.

Montesquieu elaborates on the distinction between natural and civil law: “Natural law orders fathers to feed their children, but it does not oblige them to make them their heirs” (499). Natural law dictates that since a father, by nature, should provide for his children, the fact cannot change or be socially determined; it is a timeless law of nature. The laws of inheritance can change, though. As such, their proper context is that of civil and political laws. Additionally, for Montesquieu, the rights of nations should not be governed by civil law, nor vice versa, nor the political right by civil right, and so on. Finally, he announces the supreme law of all political law, which he blazons in all-caps: “THE WELL-BEING OF THE PEOPLE” (516).