MONTESQUIEU AND THE PHILOSOPHY OF NATURAL LAW

MONTESQUIEU AND THE PHILOSOPHY OF NATURAL LAW

ARCHIVES INTERNATIONALES D'HISTOIRE DES IDEES INTERNATIONAL ARCHIVES OF THE HISTORY OF IDEAS 37 MARK H. W ADDICOR MONTESQUIEU AND THE PHILOSOPHY OF NATURAL LAW Directeurs: P. Dibon (Paris) et R. Popkin (Univ. of California, La Jolla) Comite de redaction: J. Aubin (Paris); J. Collins (St. Louis Univ.); P. Costabel (Paris); A. Crombie (Oxford); I. Dambska (Cracovie); J. de la Fontaine-Verwey (Amsterdam); H. Gadamer (Heidelberg); H. Gouhier (Paris); T. Gregory (Rome); T. E. Jessop (Hull); A. Koyre t (Paris); P. O. Kristeller (Columbia Univ.); Elisabeth Labrousse (Paris); S. Lindroth (Upsal); A. Lossky (Los Angeles); P. Mesnard (Tours) ;J. Orcibal (Paris); I. S. Revah (Paris); G. Sebab (Emory Univ., Atlanta); R. Shackleton (Oxford) ;J. Tans (Groningue); G. Tonelli (Pise).

MARK H. WADDICOR Lecturer in French in the University of Exeter MONTESQUIEU AND THE PHILOSOPHY OF NATURAL LAW MARTINUS NIJHOFF I THE HAGUE I 1970

1970 by Martinus Nijhoff, The Hague, Netherlands Srftcover Reprint 0/ the hardcover 1st edition 1970 All rights reserved, including the right to translate or to reproduce this book or parts thereof in any form ISBN-13: 978-94-010-3240-7 DOl: 10.1007/978-94-010-3238-4 e-isbn-13: 978-94-010-3238-4

TABLE OF CONTENTS Acknowledgements Introduction Note VII IX XI CHAPTER I: INTRODUCTION TO NATURAL LAW AND TO THE WORK OF MONTESQ,UIEU I: The History of Natural Law II: Montesquieu's Life and Works 9 III: The Problem of Montesquieu and Natural Law 16 CHAPTER 2: THE ORIGINALITY OF MONTESQ,UIEU'S METHOD 22 I: The Problem of Montesquieu's Method 22 II: The Prior Existence of Natural Law 36 III: Civil Law and Natural Law in the Esprit des lois 39 CHAPTER 3: MONTESQ,UIEU AND EMPIRICISM IN NATURAL LAW 46 I: Physical and Moral Concepts in Natural Law 46 II: The Example of the Animals 59 CHAPTER 4: THE STATE OF NATURE AND THE ORIGIN OF SOCIETY 65 I: Montesquieu and the State of Nature 67 II: The Origin of Society 76 III: The Historicity of the State of Nature 81 IV: The Original Contract and its Implications 86 CHAPTER 5: MONTESQ,UIEU AND EMPIRICISM IN POSITIVE LAW: THE DIVERSITY OF GOVERNMENTS AND LAWS I: The Diversity of Governments II: The Diversity of Civil Law 100 loo 108

VI TABLE OF CONTENTS CHAPTER 6: RATIONALISM IN POSITIVE LAW: MONTESQ,UIEU THE REFORMER I: The Criminal Law II: Slavery III: Property IV: International Relations CHAPTER 7: MONTESQ,UIEU'S CONCEPTION OF LAW I: Montesquieu's Conception of God II: Montesquieu and the Laws of Science III: Montesquieu and the Moral Law Conclusion Index

ACKNOWLEDGEMENTS This work1 was begun under the supervision of th elate W. Folkierski, whose invaluable guidance and unforgettable kindness helped me to complete its early stages. That it has eventually been brought to completion is in no small measure because of the painstaking and sympathetic assistance that has always been afforded to me by Professor W. Me. C. Stewart, for many years head of the Department of French at the University of Bristol. I should also like to thank other members of the staff of the University of Bristol, particularly Professor R. Grimsley, Dr. S. C. Gould, and Mr. J. K. Grodecki, for the advice they have given me on certain aspects of the work. A special debt of gratitude is owed to Dr. Robert Shackleton, Bodley's Librarian and Fellow of Brase nose College, Oxford, both for the encouragement he has given me personally, and for the profound contribution he has made by his researches to knowledge of Montesquieu and of the eighteenth century. Thanks are also due to M. Jean Brethe de la Gressaye, formerly Professor of Law at the University of Bordeaux, to M. Joseph Moreau, Professor of the History and Philosophy of Science at the same University, and to M. Paul Verniere, Professor of French Literature at the Sorbonne, for the interest they have taken in my work. Finally, I should like to express my gratitude to the University of Bristol for having enabled me to undertake this research by the award of a University Scholarship; to the Ministry of Education, for enabling me to continue it by the award of a State Studentship; and to Professor R. Niklaus and my colleagues at the University of Exeter both for their advice and for having provided me with time in which to finish the work. 1 Originally presented, in a different form, as a dissertation for the degree of Ph D in the University of Bristol, in 1965.

INTRODUCTION In the last hundred years, the philosophy of natural law has suffered a fate that could hardly have been envisaged by the seventeenth and eighteenth century exponents of its universality and eternity: it has become old-fashioned. The positivists and the Marxists were happy to throw eternal morality out of the window, confident that some magic temporal harmony would eventually follow Progress in by the front door. Their hopes may not have been fully realized, but they did succeed in discrediting natural law. What is often not appreciated is the extent to which we have adopted the tenets of the philosophy they despised, borh in the field of politics, and in the field of personal and social ethics, which Barbeyrac called "la science des mreurs" and which the positivists rechristened "social science". Consequently, though we live in a world whose freedom, such as it is, is largely a result of the popularization of the philosophy of natural law, and whose conscious and unconscious standards, such as they are, are a result of that philosophy as it became combined with Christianity, the doctrine of natural law is itself forgotten. In view of the oblivion into which it has fallen, natural law is a concept which means little to the average reader. All too often, Montesquieu scholars have traded on this oblivion in order to give an exaggerated picture of his originality. In claiming that he usually neglected the principles of natural morality, they tend to assume that his religious critics represent the doctrine of natural law - perhaps simply because the fulminations of the Sorbonne are very short and the articles by the abbe de La Roche very readable, and because a knowledge of both can be acquired merely by looking at Montesquieu's replies as printed in his complete works, whereas the treatises of St. Thomas, of Grot ius and ofpufendorf,

x INTRODUCTION which give a more accurate picture of the various kinds of natural law, are rather long and are written in unfamiliar, often tedious styles. The Jansenist abbe's conception of natural law was very narrow, and the same applies to his conception of Christianity. Just as Voltaire cleverly implied that Pascal's attitudes were those of orthodox religion, so Montesquieu's commentators give the impression that Fontaine de La Roche spoke for the Catholic Church. Another erroneous assumption made by Montesquieu scholars is that the philosophes' idea of natural law was based on a full understanding of the doctrine, and that the criticisms of the Esprit des lois made by "Helvetius", Voltaire, Rousseau or Condorcet would always have been endorsed by Grotius or Pufendorf. There are many other ways in which the concept of natural law has been misrepresented so that it can be used as a foil for Montesquieu's originality: critics talk about "Grotius and Pufendorf" as if these two jurists always held identical views; they make vague generalisations about the School of Natural Law without giving precise references; or if they do refer to the text, it is to quote some statement regarding method which (as is the case with Montesquieu), these jurists did not necessarily put into practice; finally - and this is perhaps the most serious distortion - they assume that natural law is only a political philosophy, whereas in reality it is primarily a moral and legal philosophy that has certain political implications. In view of the present trend towards a more balanced view of the Enlightenment, the time has surely come for a less prejudiced and more detailed study than has hitherto been attempted of Montesquieu's debt to the philosophy of natural law. Only then can his contribution to the history of ideas be properly assessed.

NOTE All books in French referred to in this work were published in Paris, and all books in English, in London, except where otherwise stated. Dates given in square brackets after the titles of works indicate the date of publication (not of composition) of the first edition in the original language. The spelling of quotations has usually been modernized, but the original punctuation has been maintained. Italics have been omitted except where they are in accordance with modern usage. ABBREVIATIONS Dg. = Grotius, Le Droit de la guerre et de la paix. Dn. = Pufendorf, Le Droit de la nature et des gens. Dv. = Pufendorf, Les Devoirs de l' homme et du citoyen. Lois = Montesquieu, De l' Esprit des lois. L.p. = Montesquieu, Lettres persanes. M. = Shackleton, Montesquieu, A Critical Biography. N. = Nagel edition of Montesquieu's Works. P. = Montesquieu, Pensees. Pl. = Pleiade edition of Montesquieu's Works. P.R. = Hobbes, Philosophical Rudiments Concerning Government and Society. S.t. = Aquinas, Summa theologica. T. T. Locke, Two Treatises of Government. See Bibliography for details of these works