The Spirit of Separate Powers in Montesquieu.(Critical Essay)

Montesquieu's theory of separate powers is elaborated in a discussion of the constitution of England in Book XI, chapter 6 of The Spirit of the Laws, which is by far the most discussed section of that work. Many commentators have interpreted the English system straightforwardly as Montesquieu's ideal regime. But while he greatly admires the legal separation of powers in the English constitution, he worries that the spirit of "extreme" liberty among the English could undercut the constitutional separation of powers that protects their liberty. Montesquieu's ambivalence thus raises questions as to what sort of "spirit" a regime must have to sustain a constitution of separate powers and so to preserve individual liberty. His reservations about England are important for understanding his philosophy of liberalism and have broad significance for any polity that seeks to protect individual liberty through a constitution of separate powers.

Montesquieu's theory of separate powers is famously, if incompletely, elaborated in a discussion of the constitution of England in book eleven, chapter six of The Spirit of the Laws, by far the most discussed section of that work. [1] Many commentators have interpreted the English system straightforwardly as Montesquieu's ideal regime, not seeing the tensions in his account or understating their significance. [2] Even when his ambivalence about England has been acknowledged it has not been fully explored. [3] In contrast to previous studies, this analysis takes seriously Montesquieu's ambivalence toward England and examines the nature, extent, and meaning of his doubts. This ambivalence raises questions as to what sort of "spirit" a regime must have to sustain a constitution of separate powers and so to preserve individual liberty. Montesquieu maintains that to understand any regime one must consider both the legal institutions that define it and the main motives that support it. In fact, one must keep in vi ew the whole range of background conditions that have an impact on it, including "the physical condition of the country...the type of life of the people...the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners." [4] Together the whole ensemble of relations (rapports) between the legal order, the character of the populace, and these background conditions constitutes the "spirit" (esprit) of the laws of the regime, or the spirit of the regime itself. [5] Although Montesquieu clearly admires the idea of the English constitution, he worries that the spirit of "extreme" liberty (XI.6) among the English may undercut the legal separation of powers that protects their liberty.

Montesquieu's doubts about England are only half the story, of course, and they do not invalidate his genuine admiration for the legal structure of the English constitution. But while Montesquieu's admiration has been well documented, his reservations have not been fully elaborated. Consequently, this analysis concentrates on his reservations and explores the reasons for them. By emphasizing this side of the story, however, it does not mean to suggest that Montesquieu's position on England is simply negative. Such is not the case. It is also worth emphasizing that Montesquieu has no doubts about the merits of the principle of separate powers. What he questions is how fully and how securely this general principle is realized in the particular case of England given the nature of the regime as a whole, or the spirit of its laws. This concern does not amount to a wholesale rejection of the English model, but it is more significant than prior studies have acknowledged. Indeed, Montesquieu's doubts about England a re crucial to understanding the "spirit" of separate powers as he conceives it. These doubts are therefore central to his philosophy of liberalism, and they have broad significance for any polity that seeks to protect individual liberty through a constitution of separate powers. After a brief description of the constitution of England, Montesquieu's concerns about the "extreme" liberty of the English are elaborated and their causes in English character and English society are examined.

The Constitution of England

England is distinguished from other regimes by being "the one nation in the world that has political liberty for the direct object of its constitution" (XI.5). By "political liberty" Montesquieu means "being able to do what one should want to do and not at all constrained to do what one should not want to do" (XI.3). In defining "what liberty is" he distinguishes it emphatically from what he calls "independence" (ind[acute{e}]pendence), which consists simply in "doing what one wants" (XI.3), or the sovereignty of the individual will. Independence must be "renounced" (renonce) to gain political liberty (XXVI.15) because liberty means living under political and civil laws (XXVI.15, 20). Yet despite his emphasis on the difference between liberty and what he calls individual "independence," when Montesquieu speaks of liberty he nevertheless has individuals in mind. Political liberty is not to be simply identified with collective self-rule or popular sovereignty. [6] The common association between political liber ty and republican forms of government (whether aristocratic or democratic) mistakes the power of the people for the liberty of the people (XI.2). Democracy and aristocracy "are not at all free states by their nature" (XI.4) because the power of the people can overrun the political liberty of individuals. Liberty "is found only in moderate governments" where the constitutional "arrangement of things" prevents the abuse of power (XI.4). And the political liberty of individuals must be considered not only in relation to constitutions, where liberty is formed by a certain distribution of three powers, but also in relation to citizens themselves, where it "consists in security or in the opinion that one has of one's security" (XII.1). Thus liberty refers to both institutional structure and the individual "tranquillity of mind" that comes from feeling safe in one's person and property. When Montesquieu says that England is the only nation that has political liberty for the direct object of its constitution, then, h e means that England aims for a constitutional distribution of power that establishes an opinion of security among individual citizens.

The English constitution establishes a functional separation between the legislative, executive, and judicial powers. [7] The differentiation of function, as Montesquieu conceives it, promotes the more effective operation of each of the fundamental powers of government. And because the separate functions of government are placed in different hands, no individual or group can monopolize political power (XI.6). The executive power in England is held by a monarch, while the legislative power is shared between a hereditary nobility and the people's elected representatives. The power of judging is exercised by persons drawn from the body of the people and convened only so long as necessity requires, except in special cases. [8] The differentiation of function is combined with a system of checks and balances. Because it is removed from the reach of the executive and attached "neither to a certain estate nor to a certain profession," the power of judging "becomes, so to speak, invisible and null" (XI.6). [9] This b eing the case, there remain only two powers that must be made to check each other. The executive power checks the legislative power through its faculty of vetoing. The legislative power has the sole prerogative of enacting legislation and so defines the content and direction of "public business." It cannot veto executive decisions, but it can "examine in what manner the laws it has made have been executed" (XI.6). It is itself divided between a chamber of the people's representatives and a chamber of hereditary nobles, of which only the former can enact legislation, the nobility being restricted to the faculty of vetoing. The balance of powers that results comprises "the fundamental constitution of the government of which we are speaking. The legislative body being composed of two parts, the one will enchain (encha[hat{i}]nera) the other by its mutual faculty of vetoing. [10] Both will be bound by the executive power, which will itself be bound to the legislative power" (XI.6). Thus is the separation and bala nce of powers that forms political liberty in the constitution "established by the laws" of England (XI.6).

Although it has a king, Montesquieu characterizes England as a "popular state" (II.4) and a "republic" (XII.19, V.19). [11] His meaning in this regard is complex, as England departs significantly from his description of republican government in books two and three of The Spirit of the Laws. There he defines republican government simply as one in which the people or a part of the people has sovereign power (II.1). As against the constitution of England, the structure of republican government is not intrinsically mediated by either representation or countervailing powers (XI.6-7). England also differs from the republican model when it comes to the motivations of citizens. According to Montesquieu, every government has both a "nature," which specifies the institutional arrangement that "makes it what it is," and a "principle," which "makes it act." The one is its particular structure, and the other is the human passions that make it move (III.1). The motivating principle of republican government, he tells us, i s "political virtue." While the precise nature of the motivation most characteristic of Englishmen in politics is not explicitly named, it clearly is not virtue, which is marked by self-sacrifice and a preference for the common good over one's own interests (III.3). As XIX.27 illustrates, the English are anything but self-sacrificing. Thus although Montesquieu describes England as a republic, it departs from his definition of republican government both in its nature and in its principle. [12] On the other hand, England does fit the republican model with respect to the locus of sovereignty, as Montesquieu indicates that in England the people ultimately (if indirectly) hold sovereign power (II.4, XI.6, XIX.27). England therefore is a republic but not a traditional republic. It represents a new type of republican government, a "popular state" with a constitutional balance of powers. [13]

"This Extreme Political Liberty"

Although Montesquieu maintains that political liberty is established by the laws of England, he concludes his discussion of the English constitution by making us wonder how secure this liberty is and whether it adequately protects the opinion of security that constitutes "liberty in the citizen." He ends the chapter by saying that "it is not for me to examine whether at present the English enjoy (jouissent) this liberty or not. It suffices for me to say that it is established by their laws, and I search no further" (XI.6). Much like the English word "enjoy," the French verb jouir connotes both pleasure and use. [14] Montesquieu makes it clear later in the work that he thinks the English do not take much pleasure in their liberty, describing them as full of "hatred, envy, jealousy," "debauchery," "timidity," and "terrors," and saying that many of them "would be unhappy with so many reasons not to be" (XIX.27). Yet Montesquieu means to raise doubts about more than merely the happiness of the English. The furth er significance of jouir is indicated in a crucial chapter entitled "The End of This Book" (Fin de ce livre). The chapter both closes book eleven, "On the Laws that Form Political Liberty in Its Relation with the Constitution," and states that book's aim: "I would like to search, in all the moderate governments that we know, what is the distribution of the three powers, and to calculate by that the degrees of liberty that each of them is able to enjoy (jouir)" (XI.20). Here the verb jouir carries the meaning of "possess," "sustain," or "achieve. [15] Moderate governments of various sorts will achieve different degrees of liberty depending on how successfully they actually sustain a distribution of the three powers. This second connotation of jouir as achievement casts a different light on Montesquieu's closing remarks on the English constitution in book eleven, chapter six. It suggests that he also means to make us wonder how far and how securely the English actually (actuellement) sustain the liberty that th eir ideal distribution of powers promises. One cannot help but wonder after this remark how secure the separation of powers actually is in England--and why it might not be.

The next paragraph presses the question and provokes further doubts. Here Montesquieu calls the political liberty of the English "extreme" (cette libert[acute{e}] politique extreme), and then reminds us that he opposes extremism as a general rule on the grounds that "the excess even of reason is not always desirable; and that men almost always accommodate themselves better to middles than extremes" (XI.6). [16] Extremism even in service to desirable ends should make us wary, he says elsewhere, as "extreme laws for good produce extreme evil" (XXII.21). This remark refers to laws in the Roman republic that sought to please the people by abolishing debts, among other things. Those laws came about because "as ... the people augmented their power every day, the magistrates sought to flatter them and have them make the laws that would be the most agreeable to them." The result over time was that creditors could not be induced to lend money except at great profits, and …