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Montesquieu's Science of the Legislator

L'esprit de 101. moderation doir eu t cclui du legislateu r.


T he Highes{ Virtue
"I have written this work only to provt! it : the spirit of moderation should
be that of the legislator," writes Montesquicu at the beginning of Book
XXIX of The Spir;t of the Laws ( 1748) ,1 The faCt that this claim is made
towa rd the end of the work is surprising. Why did Montesquieu wait so
long to argue that moderation is rhe key vinue of all legislators? Might this
he the secret "chain" that links IOgcrher all rhe major themes of his difficuh
To he sure, as the defining characteristic of (ree governments, moderation
is a seminal theme in Montesquieu's political works. All of his views on law,
o r d~ r, and Ii~rty coalesc~ around the concept of political moderation,l Th~
centra lity of the latt~r to M on r~sq uieu 's thought has been underscored by
many of his inc~ rpr~ ters, but it is nOl clear what exactly he mea nt by this
surprisingly elusive concept. In his in itial discussion of the nature and prin
ciples of moderate governmencs, he was surprisingly "coy" and prudent in
,,(firming the prioriry of moderation.) Moreover. while the issue of modera
rion undergi rds his critique o f despotism in the Persian Ltucrs, it is only in
The Spirit of the Laws (henceforth abbreviated SL) that Monresquieu's cri
tique of despotic governments is developed into a fu U-lledged normative
agenda in praise of political moderation and institutional complexiry,4 The
epigraph of the latter-Pro/em si'IC marre creatum-inspired by Ovid's
MctamorphO$cs , reRects Montesquicu's hold ambit ion of writing an origi
nal and cha llenging work. Its thirty-one books comprised of six hundred
five chapte::rs de::scrine, somerimcs in pa instaking detail, the institutio nal and
consti tutional architecture:: of moderat~ political r~gime$ . Montesquieu
drew a seminal relationship between moderation, limited power, che:: separa
tion of powers, and the rule of law, and he made the conc~ pt of politica l
moderation the keystone of his liberal political philosophy.
Published anonymously in Geneva in October 1748, Montesquieu's mas
terpiece enjoyed instant success. No less than fift een editions, some in anon ~
ymous versions, had appeared by the end of 1749 in (our coumrie::s. J Mon ~
tesqui~u's SL was described as "the code o f reason and liberty,'" "the
t rium ph of human ity, the mam:rpiece of gen ius, the Bible o f all politicians." 7
Fully awar~ of the importance:: of style and taste::, Montesquieu paid special
attention to the lite::rary aspect of his co mposition, whose complex structure::


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points to the exisrtnce of a sophisticated plan (perhaps ad " sum delphi,,;)

requiring special hermeneutical skills. Momesquieu's esoteric tone and el
liptical style make liberal use of mysterious hints, bold generaliza tions,
learned references, and carefu lly chosen historical examples, and combines
prudence with boldness in a most unusual and playful way... , do not write
to censure that which is established in any country whatsoever," he reo
marked in the preface of SL. " Each nation will find here the reasons for its
maxims.'" A few lines later, however, he announces that he intends to pro
pose a new science of politics whose main aim is to cure others of tllt:ir ne
farious prejudices. At ti mes, he spends entire pages discussing the intricacies
of French leudal laws, at other times he presents his ideas in surp risingly
short sentences, full ol hidden mea nings and erudite allusions.
The book disp:Jays an order that gracefu lly and gradually insinuates itself
into the audience's mind; the sequence of themes is carefully chosen to keep
readers interested in the development of Montesquieu's principles and to
stir their imagination .10 The incompleteness of some of his ideas is therefore
deliberate. meant to constantly engage and stim ulate the cur iosity of his
readers. II He directs tbeir anention in a highl y choreographed way, ever
aware that "one must nor always so exha ust a subject tbat one leaves noth
ing (o r the reader to do. 1r is not a question of making him read but of mak
ing him think."u At regular intervals. Montesq uieu , a master o f surprise
and contrasts, add resses a rem inder to his readers, urging them to remai n
cur ious and alert until the very end of the book. in spite of the pletho ra of
idea5 and histo rical details he presents. His sophisticated style, the complex
orga nization of the book, and his own digressions are an invitation to pa
tient and slow reading which leaves it up to the readers to supply the miss
ing links between ideas and decipher the true message o f the book . lJ H e had
to give voice to important tfuths whose direct enunciati on might ha ve of
fended influential perSOns in positio ns o f autho rity, and 50 Montesquieu
pruden tl y "veiled" th em from those to whom they would have been harm
ful, without however Jetting them be lost for th e "wise.... ' 4 Thi s prudent
consideration, along with Montesquicu's interest in style, explains the pecu
liar strategy and rhetoric whereby he encourages his audience to discover
the principles of liberty "as in a m ;rro," and go beyo nd appearances in
order to comprehend the "nuances of things" !} and discover fo r themselves
the underlying meanings.
Fully awa re o( the difficulry of his book , Montesquieu believed that on ly
a "holistic" reading would enable his readers to follow the development and
interdependence o f its major them e.... In the preface to SL. he wrote : "I ask a
favor that I fear will not be granted; it is that o ne not judge by a mo ment's
readi ng the work o f twenty years, that one approve or condemn the book as
a whole and not some few sentences. If o n~ wants to seck the design of the
author, one can find it onl y in the design of the wo rk. ... Many of the truths
wi lJ make themselves felt here on ly when o ne sees the chain connecting
chern with others."1' Much ink has flow ed on this enigmat ic m ~ taphor

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Moderate Government 35

which continues to fascinate Montesquieu's interpreters. Did he have in

mind freedom or virtue, as some commentators claimed, 17 or something
else? Without underplaying the significance of politicalliberry or virtue (or
Montesquieu, I believe that the mysterious "chain" to which Momesquieu
referred on several occasions is related to the concept of political modera
tion which, in his works, completes the Ifansition from character trait to a
fundamental constitutional principle.
In addition to curing others of their prejudices, Montesquicu had at least
rwo other main goals in mind when writing his masterpiece: to correct
ahuses and to teach and instill the spirit of moderation, the supreme virtue
of any legislator. The ideas of his hook were meant to teach rulers how to
govern with moderation by avoiding excesses of cruelty and promoting free
inquiry and les fumieres . 1I This in itself was no minor task, given the politi
cal comext in which Montesquieu wrote . That is why Montesquieu's writ
illg sryle resembles more a complex lens than a clear window and why the
apparent coolness of his dense prose often conceals me heat of a volcano
within. Attentive readers must come equipped with adequate hermeneutical
strategies in order to decipher his cryptic messages. If is important, there
fore, tnat we begin our journey by examining tne core principles (rom which
he started, for they may help us [0 better understand Montesquieu 's conCep
tual framework and po litical vision at the heart o f which lies the concept of
polit ical moderation."

The Complex Nature of Moderation

Momesquiell's belief in the power of moderation is demonstratcd by vari
ous arguments strategically placed in different chapters of SL As already
mentioned, he docs not explicitly acknowledge the fundamcntal role of
moderation until near the end of the work (SL, XXIX : 1,602). This seminal
claim is foreshadowed, however, by a number of hinrs fo und earlier in the
teXt . for example, in book VI, Montcsquitu points 0111 that "men must nOt
be led to extremcs, (butJ should manage the means that nanlre gives us to
guide them" (SL, VI: 12,85) and in book XXII he affirms that "moderation
governs men, DOt excesses" (SL, XXll : 22, 426 ). Yet at the same time, Mon
tesquieu al so thought that truly moderate spirits were surprisingly rare and
hard to fi nd : "By a misfonune attached to tht human conditio n, great men
who are moderate are rare; and, as it always easier to follow one's strength
than to check it .. . it is easier to find extremely vinuous people than ex
tremel y wise men" (SL, XXVIII : 41, 595). We need to ask how these state
ments ca n be reconciled.
As with many other passages in Montesquieu's writings, il is difficult to
ascertain if these were intended to be normative claims or factual state
ments, since the line that sepautes them is d ifficult to draw. Momesquieu's
belief in the power of moderati on-a difficult :and rare v i rtu~must be re


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36 Two

lated (0 his claim that moderation corresponds to the "nature" of things

anJ has an onlological foundation reflecting the o rder of the world . His
emphasis 0 0 nature must be taken with a grain of sa lt, for in his opinion
building moderate government is n~ lJ~r a mere work of nature, but is in
stead the outcome of II sophisticated constitut iona l design requiring great
ski lls, prudence. and discernment . What makes Montesquieu's case interest
ing for us is that he no longer regarded moderation primarily as an exdu
~ive virtue of well-ordered souls (a prominent theme in classica l pol itical
philosophy, beginning with Plato), but as all essential feature of a certain
typ!' of government, tbat is, a m oderate gOIJ~rnm~m. In his view, modera
tion depended to II great extent on the nature of the laws and the constitu
cion of each country, and it played a key role in tempering the exercise of
power, thus ensuring the harmonious coex istence of various interests and
classes in society. As a result, moderation comprised a complex web of in
lerrt:lated dements with constitutional, penal , fiscal, religious, an d eth ical
dimensions. all closely linked to one another.
Although moderation was presented as the outcome of a com plex institu
tional alchemy, its ethical dimension was not absen t from Montesquieu's
works. Describing moderation as a cardina l virtue, he distinguished be
tween (WO rypes of moderatio n; one founded on genuine virtue and another
"that comes from faintheartedness and from laziness of the soul" (SL, III; 4,
25).10 At t he same time, he remarked that moderation presupposes a certain
soc ia l condition characteriz.cd by the existence of a particular set of mores,
manners, values, cuStoms, and tradirio ns.ll T hus, moderation appears as a
feat ure o f "gentle" (do ux ) regimes that avoid the extremes of cruelty and
suffering. Furth ermore, in the footSTeps o f Aristotle, Momesquicu drew a
close connection between modcration, practica l wisdom, and opposit ion to
extremes, advising legislators and citizens;" Do not go too far to the Tight . ..
do not go too far to the left ; stay between the two" (SL, XXX ;
62"1). On
this view, moderation becomes an expression of the discernment, prud ence,
and common sense which, Monresqll;eu insisted, should be the primary vir
lUes of all legislators.


M oderation and Mixed Government

MOlltesquieu foll owed in the footsteps o f his predecessors by drawing a
close relationshi p between moderation and mixed government.u As Mi
chael Sonenscher has remarked, this connection in Montesquieu's work has
a complex and interesting genealogy. In particula r, MontesQuieu's interpre
tation of the "double majesty" o f the Roman empero rs and of the obscure
o rigins of the ancient government of the Germans a llowed him to account
for the gradual emergence o f moderate governments in which the king had
the right to power but not the righ t to judge, that being reserved to interme
diary bodies,u

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Archi(ttture of Moderale Government


Ahhough Montesquieu was relucunt to refer to the "best" form of gov

ernment in general, he made a rather surprising claim after discussing the
constitution of England in Xl: 6. praising in unusually glowing terms tht
so-called " Gothic government" as a mixture of aristoc racy and monarchy.
In spite of irs drawbacks (th t common people were slaves, Momesquieu
rem arked ), this regime which had existed in some parts of Western Europe
was a good government which had the capacity to cha nge and improve over
Giving leners of emancipation became the CUSlom, and soon the
civil liberty of the people, the prerogatives of the nobility and of the
cle rgy, and the power of the kings, were in suc h concert that there
has never been, 1 believe, a government on earth as well tempered
as that of each part of Europe during the time that this government
continued to exist; and it is remarkable that the corruption of the
government of a conq uering people sho uld have formed the best
kind o f governnu:m men havc been able 10 devise (SL, XI: 8,
The use of thc su perlative here is striking because Montesquieu was noto
riously reluctant to make bold generali:t.arions of this kind . Since his enthu
siasm for the " Gothic government" Seems to bt at odds with his previous
cautiou~ tone, it remains an open question whether o r nOt it should be read
3S an expression of Montesquieu's ad miration fo r mi xed constitutions
based on :1 sound balance berween va rious groups and inttrests in society_
Alo ng with the English constitution, "Corhic" government became the
model for Montesquieu's theory o f moderate government . As Lee Ward has
argued, Mo ntesquieu explored "the potentiality fo r moderate government
in some combination of British and Gothic principles." l4 At the same time,
his account of co nstimtionalism has many striking similarities with his de
scription of t.he distribution of powers in ancient Rome and must be inter
preted in light of Monresquieu's undem anding of the main features of the
so-called "Gothic" constitutio n. Th e latter held sway over a loosely con
nected feudal syStem, intermediate insrinltions. and territorially divided
powers between the center and the periphe.ry. Montesquieu admi red the
complex interdepe.ndence betwccn the power of the mona rch, the privileges
o f the nobles, the clergy, and regional assemblies with overlappi ng jurisdic
tions. This was nOt only the genius of the ancient constitutio n of France, he
argued, but also of the Roman constitution . "The la ws of Rome," Montes
quieu wrOte, " had wisely di vided public powe r among a large number of
Olagislracies, which supported, checked) and tempered each other.,,1J
An attentive reader of Roman historians, Monresquieu traced the origins
of the mixed consti tution back to tbe Roman republic and recommended
the study o f Roman history to anyone interested in politics. "Study the Ro
mans," he wrote; ~{heir superiority will never be more evident than in the

Ctl"",~ . inotl


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.18 Two
choke of the circumstances in which they did good and evil things."16 Mon
tesquieu :l mibut~d th~ fis~ of th ~ Roman republic to its successful combina
tion of wel l-designed institutions and civic virtue that allowed its Ci liuns to
live in peace and prosperity at home and wage s uccess ful wars abroad . In
the early ~tages of the republic, Montesqu ieu remarked , the Romans were at
th~ same time prud~nt and audilcious, sdf-i nt~ rested and committed to the
common good; the mOH salient features of the ea rly r~p ub l ic w~ rc its citi
zens' love o f liberty, haired of tyrann y, aud love of equa lit y. As 11 mixture
between mon archical, aris tOcratic, and popula r elements, the Roman gov
ernment evenrually achieved a sou nd "harm ony of power" (SL , Xl: 12, 172)
that t~mpered disput~ s benv~en the classes. As a result, the gov~ rnm~nt of
Rome came to be based upon a judicio us di stributi on of powe rs between
(he people, the s~ n a [e, and o ther magistracies which, alo ng with its sound
constitution, made it possible [ 0 correct or prevent abuses of power. 1? The
repu blic derived iu force from the civic virtue of its citizens and from the
existence of sound institutions_E.very soldier was at the sa me rime a citizen
who had a stake in working for maintaining the prosperity of the republ ic.
In chapter IX of the Considerations. Montesquieu attributed the decline
of the Roman republic to the corruption of mores and the disappearance of
the bala nce of power that tipped alternatively in fa vor of the people, the
patrici ans, or the consuls at the expense of rival classes. "The distracted city
no longer formed a complete who le," lI Monresquieu nored, and he poinred
to the growing propensity to abuse power on all si des in order to ex plain
the progressive corruption o( the Roman republic. This argument was ex
panded in an impo rtant letter of Montesq uieu to William Do mville (i n
cl uded in the Penset!s) . Referring to th e corrupti on o f the people as a whole,
Monresquieu pointed out that military tri butes and the pillage of Rome's
enemies had the long-term perverse effects of creating a large gap between
rich and poor that ended up destroying the unity of the Ci fY and corrupting
the civic spi rit o f its citizens.JO
A cursory look at what M on tesquieu wrote in chapters VIII, IX, and XI
of the Considerations reveals an interesting relationship between the mixed
constitution and the concept of the bal ance of powers. It is not a mere coin
cidence that he returned (Q C icero's o ld metaphor o f t he sympl)onia discors
and linked it to the metapho r of "scale" in order to describe a mode rate
form of government in which the monarch is in the center of the scale, and
the intermediate powers (the nobles and the people) in the balances. O n t his
view, what ktoeps a city together and constitutes its fo rce is "a union in har
mony" which does not exclude well-tempered socia l d issonances and politi
cal differences:
That which we ca ll union in a political body is a very equivoca l
thing: (he true unity is a union in harmony, which operates in such
a fa shion that all the different parts, however opposed they may
appear to us to be, concu r in the genera l good of society, as disso

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Arc:nirectore o( Moderate Govunment


nances in music agree in the concord of the whole. Thus there can
be uniol1 in a state where one would expect o nly turbuleoce: that is
to say, a harmony that gives birth to happiness, the only true peace .
It is liJce the pans of the universe itself, eternall y linked by the ac
tion of some and the reaction o f others.l'
In th is wonderful passage reminiscent of Cicero, MOlltcsquieu compares
the harmony of moderate government to the cosmic order and rhe Ol ccortl of
celestial spheres. The underlying idea is that, JUSt as th e order of the uni"
verse derives from its diversity, so the order of moderate governments re
su lts from their internal balance and from a concord between their va rious
components as well as from their plura lity. The politica l balance in the stat(:
ma nifests the harmony of the world, and the intricate complex ity of moder
ate governmenr reflecrs harmonia mundi, being the outcome of the success
ful Utem pering" of competing political powers and social interestsY As
such, the essence of moderate government lies in its internal consonance
find "discordant accord."
The use of Cicero 's musical metaphor in the Considerations underscores
Montesquieu's intention to stress the internal complexity o f moderate gov
ernrnenrs,3. major theme to which he returned again and again in SL and in
the Pemees, where he contrasted it with the sim plicity and unifo rmity of
despotic regimes.)1 As Nannerl Keohane ha s argued, Montesquieu under
stood quite well that "creating a moderate government means delibera tely
lift ing a polity out of simpliciry, instituting a complexity of form where
there would otherwise be pure do mination .")./. While modcrate governments
are complex human artifices resulting from a sorhi.oaicaled alchemy of pas
sions, interests, and powers, despotic regimes spring \..Ip naturally fr om the
common human instinct to dominate and oppress. Despotism is no longer
seell as a corruption of monarchy, as it wa s portrayed in the older scheme of
classi fying governments; it appears now as a different type of po litical re
gime, one that demands special consideration.
O ne must resist the temptation of interpreting Montesquieu's aCCOunt of
moderate government as a mere endorsement o f mixed (Gothic) govern
ment, or as an accurate description of the English politica l system, which he
strongly admired. Almost none of Montesqu ie u '~ contemporaries believed
th.at he accurately depicted the reality of English poli tics as it was practiced
across the Channel during his time. Montesquicu was favorably disposed
toward moderate monarchy II i"anglaise. because in this regime laws reign
rather than the will of individuals (in the Aristotelian sense), and the au
thority of the sovereign is effectivdy limited by intermediary powers and
funda mental laws. Yet, his admiration for England should not be inter
preted a ,~ an unqualified approval of the country's limited mona rchy, nor
must it be seen as an endorsement of a strict version of the separation o f
pow~rs.lJ As M.J- C Vile remarked, it is no mere coincidence that, when
enumerating the form s of government at the beginning o f SL, Montesquieu



made no mention of mixed government . He reru(ned, however. to this

theme later, in book Xl, to prai~ mixed government for successfully pro
tecting liberty and rights ..!'

Moderation and Policical Liberty

At tbe core of Montesquieu's conceptual apparatus lies the fundamental
distinction between moderate and immoderate governments, which under
pins his c0l1stitution;t1 theory based on the doctrine of the balance of pow
ers. By distinguishing between moderate and immoderate governments,
Momesquieu departed from previous classifications. For him, the funda
mental question waS no longer who exercIsed power-one, the few, or the
many- but how power was exercised, that is, m(lderau~ ly o r immoderatdy.
Political liberty, he argued, exists only in moderate governments and on ly in
those governmen ts in which power is not chronica lly abused.
By identifying moderation as the cornerstone of free governments and
drawing a fundamental dichotomy between moderate and immoderate gov
ernments-a d istinction pregnant with impo rt:lnt normative connotations
Montesquieu achieved two important things. First, he shifted the focus of
inquiry from the ethical 10 the institlltional aspects of mode ration, paying
specia l attention to the architecture of constitutiona l government in which
political moderation is embeddedY Second, he extended the scope of the
concept of gOllllernement modire by applying the label nor only to republi
can regimes, whose main principle is political virtue defined as love of coun
try and love of equality,J' but also to mona rchies, whose underlying princi
ple is honor and in which intermediary bodies act <l.S effective countervailing
forces to the authority of the monarch. According to Montesquieu, modera
tion founded on virtue is "the soul " of aristocratic governments, and all
moderate governments are, by nature, "gentle" regimes incompatible with
arbitrary power.
The o pposi tion between a gentle and crud way of exercising power was a
major theme of Montesquieu'~ "liberalism of fear," which sought to avoid
all fo rms of cruelty and intolerance. "All fc:ticity," he claimed, "lies in the
people's opinion of the gentleness of the government" (SL, XII : 25, 209),
and gentleness reigns only in moduate governments, that is, only in those
regimes in which power is limited and exercised with moderation, the ant
onym of cruelty, harshness, and incolerance.Jf Such governments are moSt in
confonnity with reason, and their functioning is not disturbed by internal
friction and turmoil; they tend to act with minimal political const rainrs,
which allow them to relax. their springs without peril. In 5uch governments,
citi:t.ens tend to be happy because they feel secure and their dignity is duly
respected; the situation is differenc in democratic and despotic regimes,
which are not by nature moderate and in which power is chronically abused.
Montesquieu's enlphasis on filiciti points to the ex istence of :l seminal
relationship between political happiness, liberty, and moder;nion. Liberty,

Architecwrt of Moderate Govtfnmt nt


he argues, exists and thrives only in moderate regimes. tempered by the

separation of powers, the presence of intermediary bodies, and the rule of
law; it accompan ies moderarion and ought to be seen as its natural comple
ment or outcome , ~o Momesquieu's conception of political moderation is
perhaps nowhere so salient as in books XI-XII of SL where he articulates
his views of political liberty by using several overlapping narratives of lib
erty. These focus on differenr yel related concepts and themes, such as social
liberry, constitutional liberty (in England), Gothic govnnrnent, and also the
absence of liberty (in despotic Asian regimes).
Montesquieu was as flilly aware of the semantic richness of Ii berry as he
was of the conceptual complexity of moderation . "No word has received
more different interpretations and has struck minds in so many ways as bas
libmy," he wrote. "Some have taken it for the ease of removing the one to
whom they had given tyrann ical power; some, for the faculry of electing the
one whom they were to obey; others for the right to be armed and to be able
to use violence; yet others, for the privilege of being governed only by a man
of their own nation. or by their own laws,"''' Monresquieu opposed the
definition of liberey as freedom from the laws because, in his view, it offered
a o ne-sided perspective on liberty, highlighting only (one pare-icular aspect of
it, namely freedom from coercion or securiry. He was equa lly skeptical of
the alternative republican approach, which defined liberty as freedom
through the laws and emphasized political participation, a concept that
does not loom large ia Monresquieu's conceptual framework. Finally, he
expressed reservations regarding rhe equation of liberty with n;J.tural righu,
for he did nor believe that tbe laner were valid universally without regard to
the diversity of sociaJ and political co ntexts .~2
Equally important is the distinCtion Momesquieu drew between political
and philosophical liberty. True liberty, he argued, is identical neither with
independence nor with caprice: " it is true that in democracies the people
seem to do what they want, but political liberty in no way COnsists in doing
what one wants. In a state, that is, in a society where there are laws,liberry
ca n consist only in having the power to do what one should want to do and
in no way being constrained 10 do what one should not want to do" (SL,
XI: 3, 155). A few pages later he returns to this point. distinguishing be
tween two types of politicalli~rry. The first (philosophical) consists in "the
exercise of one's will," while the second (political) consists io "security or, at
least, in the opinion one has of onc's security" (SL, XU: 2, 188). On this
view, liberty is the right to do all that the laws permit or do not explicitly
prohibit. Hence,liberry can lJIean many dungs: the absence of fear. personal
securiry; the rule of law; free competition for power; the economic fr~dom
to pursue one's imcrtsts unhindered; and the freedom of individual will.
No nr theless, for Momcsquieu none o f these definitions and narratives of
liberty taken alone was satisfactory beouse nonc of them captured the
rkhoC$S and multifacered nature of liberry, which was not the exclusive
preserve of any particular forlll of governmcm (republic, monarchy, aris
tocracy, or democracy ). He eschewed the customary practice of associating

1011112011 1:3U2PM



freedom with a particular fo rlll of govcrnl1lenl (constitutiona l monacchy

fo r Locke. the democratic republic for Rousse:m) and argued that, although
political liberty can be found only in moderate gov(.>rnments, it is not al
wa.ys present in moderate states. Liheny must be defined in connection
with the manner in which authority is exercised and depends on a complex
alchemy of powers and a set of political institutionsj it exists only when
power is not abused and is properly limited by constitutional devices , cus
toms, or religion. In other words, liberty is the mmplex outcome of the
interacti on of many factOrs and eiemeO[s thar wry from one form of gov
ernment to another. H Th is is why liberry c:\ n be found in both moderate
monarchies a nd republics and, as Montesquieu put it , it is no farther from
the throne than from the senate. 44
The close relationship between political liberty, moderation, and la ws de
serves additio nal scrutiny. While moderation ca nnot be identified with lib
erty, it is nonetheless one of the prerequisites of the l a"e r.~ J Monte~quieu
insisted that political liberty and moderation depend to a great extent on
the nature o f the laws, adding that there can be no liberry and moderation
when laws are disregarded or misinterpreted to suit the interests of rulers.
Freedo m is derived from the fixed. sta ble, and impersonal na ture o f the law,
which, in free states. is everywhere known and respected by all citiuns, re'
gardless o f their rank or wealth.- Worth nming here is the connection
Montcsquieu draws ~rween li berty. moderation, balance of powers, and
the rule of law. Correspondingly, political liberty and moderation are absent
from those regimes in which fea r and uncertainty dominate and where there
is no trust, honor, o r personal suriry.
It is worth noting that Montesquieu refused to embrace the language o f
rights, preferring instead "to put cruelty first."~' At th e same time, he de
voted two major books of SL (XI and XII) to discussing po/irico/liberty in
relation to the constitution (the distribut ion o f powers in the sta.te) and civil
liberty in relation to the citiun. "It is not enough to trea t politka llihcrry in
its rdation to the constitution," he argued; "it must be shown in its relation
to the citizen" (SL, XII: 1, 187) . While li berty is promoted by a certain dis
tribution o f the three powers in the state that prevents those exercising the
legislative and/or the executive power from having the power of judging,
po litical freed om means much more than the sepa ration (or distri bUl ion) of
powe rs and the presenct: of intermedia ry bodies. Properly understood, lib
erry depends on extra-political factors such as mores, manners, education,
custo ms, and religion which, by regulating the internal and external COII
duct of individuals, promote, directly or indirecr/y, the spirit of modera
tion '" As such, political li berty represents mueh more than the opposite of
despotism: it designates a particul ar way o f social life whose main frait is
moderation .
Wuy o f carrying any principle- -including the allegedly "good" ones-to
extremes, Mootesquieu srop~d shorr of t:onsiderillg the distribution or
separation of powers and (he cule o f law as ahsolute prerequisites o f frcc

11lt'11I201 1 I:31 '.2P"'/


of Mod~r3l e Cov~ro m r:nt


regimes. He opposed taking the letrer of the law mo seriously, suggesting

instead that moderation is needed to make the application of laws more
humane and that circumstances muST always be taken inm account. "It
could happen that the law, which is simuhaneo usl y clairvoyant and blind,
might also be too rigoro us in certain cases," he wrote. "It is for iu supreme
authority to moderate the law in favor of the law itself by pronouncing less
rigorously than the law " (SL, XI: 6, 163).

Penal Moderation and Montesquieu's Theory of Jurisprudence

This impon anr dimension of moderation in SL comes to the fo re in Mon
tesqui eu's philosophy of jurisprudence. 4 ' The extended treatment of penal
ties in hook VJ and the corresponding discussion of ju risprudence in book
XII, along with the analysis of Ihe power of judging and o ther related tOp
ics, add impo rtanr dimensions to Montesqui eu's reflections on the an of
legislation, political moderation. and the rule o f law, Among the safeguards
of individual security, he paid particular attention to the existence of an
independent iudiciary$Oand ;I certain manner of judging that foll ows prec
edents and tbe fo rmalities of justice, wi th their complex and slow proce
dures meant to protect individuals against the loss of their Jile, liherty, and
Before examining in detail Montesquieu 's ideas on penal laws, il is impor
rant to get a clear picture of what he had to say about laws in general.
Books VI, XIX, XXVI, aod XXIX of SL, io which Monresquieu examined
civi l ;,lod criminal laws as well as penahie!i, can be ioterpreted as :t sophisti
cated critique of the idea of a uni fo rm and simple jurisprudence which some
of hjs concetnporaries fa vored. Monc(;squieu went to great lengths to argue
that laws mUSt always be properly worded aod should be supported by
solid and clearly formulated rationa les. Their sty le must be concise and sim
ple and ought to avoid vague expressions Ihal might lead 10 conflicting in
terpretations: "The laws should not be subtle; they arc made for people of
middling understanding" (SL, XXIX: 16,6 14 ). Furthermore, the legislator
should ne.ver lose sight of the fact that seve ral laws must correct and sup
POrt each other and that they ought to be in harmo ny with each other and
should be judged collectively rather thao individua lly.
The underlying assumption of Montesquieu's theo ry of ju risprudencc is
explicitl y stated in SL. XII: 2 where, after defi ning political liberty as can
sisting "in security o r, at least. in the opinion o ne has o f one's security,"
Monresquieu goes on to add that "the citittn's liberty depends principally
on the goodness of the crimioa.llaws" (S L , XU: 2, 188). Since civillibe.rty is
equated with freedom from arbitrariness, freedom is predica ted upon a
knowledge of the rules and their predictable application io crim inal judg
menls: "Tho ugh tribunals should not be fixed, judgments should be fixe d to
such a degree that they are oever anything but a precise text of the law"

101 11/2011

"~1 .42f'M '



(SL, Xl: 6,

158).11 Since criminal laws can be a major source of injuslice

and abuse, effective sa fegua rds must be created in o rder to protect the secu
rity of individua ls and shield them from the arbitrary application of the
laws by those in power. Liberty itself. as the title of XII : 4 shows, ca n be
affected by the nature and degree of penalties. The connection between
moderate pena lties and an absence of arbitrariness is evident in the open ing
paragraph of this chapter: " It is the triumph of liberry when crimina l laws
draw each pena lty from the particular nature o( the crime. All arbitrariness
ends; the penalty does nOt come (rom the legislator's capriciousness hut
from the nature of the thi ng, and man does not do violence to man" (SL 1
XII : 4, J 89) .12 To the question when the legislator should punish o r pardon,
Montesquieu answers th at "thi~ is something bener fdt than descrilxd"
(SL, VI: 21,95), ad mitting that a wise legislator must enact pena lties that
drnw "from th e nature" of each case and shou ld act with prudence and
In spite of the liberal tone o f his theory of jurisprudence, which unam
biguously condemned torture, Montesquieu stopped short of challenging
lOome of the most controversial articles of the Criminal O rdinance of 1670,
a code that contained several strikingly illiberal provisions.H Montesquieu
d id not publicly object to Ihe stipulation that trials were to be conducted in
secrecy, nor did he th ink that the crossexamination of witnesses by defense
counsel was essentia l to a fa ir trial. Furthermore, Monresquieu did not o b
jecr to the practice of not granting a right to counsel in criminal cases. In
stead, he insisted that wise legislators should use the means nature gives
them and prescri be a JUSt mixture of penalties and rewa rds, drawing upon
the maxims of philosophy, mo rality, and religion, the rules of honor, the
love 0 1 the homeland, and the fear of blame. H In moderate (gentle) regimes,
Montesquieu argued, a good legislator "can form anything into penalt ies"
and, as a result, will insist "less on punishing crimes thart on preventing
them; he will apply himself more to giving mores than to inflicting punish
menu" (SL, VI : 9, 82-83). That is why, Monre~u i eu argued,"a good legis
lator takes a middle way: he does not always order pecuniary penalties; he
does not always inflict corporal penalties" (.5L, VI : 1 H, 93). There are cases
when legislato~s should apply the fuji extent of the law and cases when thq
should refrai n from doing so: "An administration is subl ime if it is well
aware what part of power, great or lOmalJ, should be used in variou~ circum
stances" (SL, XII: 25, 209).
A few concrete examples will he useful to illUStrate these poinrs. The im
portance of letters o f pardon in moderate governments did nOI escape Mo n
tesquieu's attention. With regard to civil penalties for accusations of heresy,
he recommended moderation, arguing that legislators must be: "ve ry wary"
o f punishing alleged heretics (SL, XII: 5, t 93). In such cases, prudence is
especially called for as proving that someone hu heretical views always in
volves controversia l and potentially arbitrary interpretations of o ther peo
ple'.~ beliefs. Discou rse and speech cannOt (arm the corpu5 d~licti because

101111201 1 1:31.42 PM

Acchitcx"ture (If Moderate (ioVttnmtnt


they can always be easi ly misinterpreted ; "Nmhing makes the crime of high
treason more arbitra ry than when indiscreel speech becomes its material.
Discourse is so subject to interpretation, there is so much difference be
tween indiscretion and malice and so little in the expressions they use, that
the law can scarcely su bject speech to a capita l pen~tlcy" (S L, XII : 12, 198).
Once agai n, applying moderate penalties wo uld be preferable {O an accusa
lion of high treason)5 Moreover, accusing someone of ho lding or propagat
ing heretical views becomes dangero us in propo rtion to people's ignorance
and fears . That is why Montesquieu insisted that laws shou ld be charged
on ly wi th punishing external actions and sho uld never seek to guess and
di scipline inner tho ughts o r penalize secret intenrions. H A regime in which
people could be charged with crimes of high treason all the g.rounds of their
thoup,hts would be :I. harsh tyranny, since many ideas seen as challenging the
statu s quo cou ld be interpreted as treason. The word " treason," Montes
quieu noted, is ambiguous. and its vagueness represents a danger to mdi
vidual liberty. "Vagueness in the crime of high treason is enough to makt:
government degenerate into despotism," (SL , XI1: 7, 194 ) because it is al
ways possible to exaggerate or misrepresent the nature: of the alleged crime.
Momesquieu also addressed crimes aga inst religion, supporting the de
.::riminalizatio n of sacrilege and bl asphemy. III so doi ng, he combined bmh
pruden tial and non na tive reasons. MPenallaws," he wrote, "must be avoided
in the mamr of religion," (SL, XV: 12, 489) a~ they almost never have a
positivt: eHect and are often used as a mcans of stifling dissent and punish
ing rivals." The prom i ~s made by religion are 50 great that, no maner wha t
penalties tbe magistrates might impose, they will never be effective dett:r
rt:nu . Legislators must act as "political men and [lot theologians" (S L. XV:
9, 487) when judging these mattt:rs, STriking a balance between giving reli
gion its due and limiting ils jurisdiction over people's private lives. Montes
quieu prudently acknowledged thac "the institutions of religion are always
presumed to be the beST," while also warning against trying to enact by di
vine laws "that which shQuld be enactt:d by human laws" (SL, XVI: 2, 495) .
.. Human laws," he a rgued, "enact ilboUf the good: religion, about the beSt.
The good can have a nother object \xciluse there ace several goods, but the
best is one alone and can, th e r cfor~, never change" (SL , XVI: 2, 495).
MonteScluieu's views on penal laws were insepara ble from his belief that
liberty is secu re onl y in Ihose regimes in which il is duly protected by the
fo rmalilies of justice. In such gov~rnments, the forms and rules of justice
protect tbe dignity and liberty of ordinary ci tizens, for justice is admini!>
fered according to fixed, impersona l, and certa in ~tandards. "Tribunals of
the judici;uy," Montesquieu wrote, must always be "coolheaded llnd, in a
way, neutra l in a ll matters of business" (SL. VI: 6, 80). Impa((ial procedures
along with unchanging rules and clear and known laws consti tute the es
litnce of moderate government: "Law is everywhere wise; it is known every
where. and the lowest of the magistra tes can foll ow it,"1I The administra
tioo of justil.:e requires scrupulous inquiries and ca refull y weighed decisions

' ~1I401I

1:31:<l2 PM



~ccordin g to the spirit o f (he law, while also raking into account the exis
tence of " many rules, restrictions, and extensions, th~ t multiply particular

cases and seem to make an a rt o f reason ing itself:' $t in free regimes, one
i1lways find s a multiplicity of such regula tions and conve ntiom; reflecting
the numerous disti nctions in the natu re of men's goods, rank!., and socia l
co nditio ns. As a rule, the "formal ities lof justiceJ increase in pro portion to
the im portance given to (he honor, fo rt une, life, al1d libe rry of the citizens"
(SL, VI , 2,75).
In moderate regimes, th e manner of for ming ju dgments is deeply imbued
with a spirit of moderation, whi..:h requires th ~t sc rupulo us inquiries be
conducted according to that sp irit . Neith er the prince no r his council exer
cises judicial power; the laws are supposed to be " the prince's eyes; he sees
with them what he co uld not see withou t them" (S L, VI: 5, 80), and he may
neVet igno re Ot ~bu se thetn .60 The judgmenu rendered by the prince would
otherwise be an inexhaustible source of injustice and ab use, much like the
judgments o f a despot whose will meets with no effective obstacle and
whose power is virtually unlim ited. Not only is the monarch prevenred
from exercising judicial power in moderate regimes, but judges 3re pre
vented from making the rules, which they are expected to follow to the lu
rer while also making sure that "no la w ca n be interpreted to the detriment
of a citizen when it is a question of his goods. his honor, o r his life" (St . VI:
3,76). The existence o f a genuine spirit o f judicia l compromise and of ex
tensive judicial fo rm ali ries temper the exercise o f powe r and modify the
ways in which autho riry is d ispersed and exe rci~d . promoting respect for
the life, liberty, and prope rry of ord inary citizen s. T hus, "the head o f even
the lowest citizen is esteemed" (SL, VI: 2, 75),' and his honor and good s
ca n be removed fr om him only a fter ca rdu l examina tion conduc ted accord
ing to clearly fo rmul ated procedures and laws.
By vi rtue o f their compl ex structure, in modera te regimes power is medi
ated by an intricate hie rarchical struCture tha t co unterba lances the author
ity o f magistrates and the prince.'2 Unlike des potic regimes, moderate gov
ernments can, as much as th ey wan t and witho ut peril, " relax" their springs
fro m ti me to time. Soc ial life under these regimes is not based on fea r and
intim idation. 6l T hey mainta in themselves primarily by laws and mores that
effectively limit power and foster a genera l benefi l'ial spirit of moderation,
accom moda tion, and comp romise.

fisca l Moderation
Given the impo rtance o f collecting a nd using the revenues of the state, it is
not surprising tha t fisci l moderation'" occupies a cenrra l place in Mont(s
q uit u's agenda. He turns to this subject in book XIII, in a discuss ion that
complements his previous analysis of constitutional and penal moderation.

Archiltclure of Moderau: Govcrnmc:m 47

In the opening chapter, he introduces the importance of fiscal moderation
by stating that " there is nothing that wisdom and prudence should regulate
more than the portion taken away from the subjects and tbe portioo left to
them .. . . In order to fix these REVENUES well one mUSt consider both the
necessities of the state and the necessities of the citizens" (SL, XIII: 1,213).
He insists that it is the state that must adjust to society rather than vice
vcrSil, adding that "one must not take from the real needs of the people for
the imaginary needs of the state" (SL, XIII: 1,213). Among the imaginary
needs of the State Montesquieu included "the ones sought by the passions
and weaknesses of th(lsC who govern," needs that arc often nothing more
than a result of the "sick envy of vai nglory, and a cenain impotence of spirit
in the face of their fancies" (SL, XIII: 1, 213) . Public revenues may not be
adjusted to suit the imaginary needs and fancies of those in power, but
ought rather to reflect what people should a nd can give for the pursuit of
common interests. By stressing this point, Montesquieu declared his opposi
tion to those theories which argued that it is the richness of the state that
constitutes the well-being of its subjects.
According TO MOnlcsquicu, the nature of any fiscal system is a corollary
of-and reflects-the principles of each political regime, an observation
that brings us back to the fundamental distinction berween moderate and
immoderate regimes. Under a moderate government people arc: morc will
ing to contribute to the welfare of the state than in any other regimes, be
ca use taxation is based on a tacit contract that respects individual liberty
and property. Taxes are easier to collect, and the majority of th em are direct,
mostly imposts on commodities. "Taxes can be increased becilusc the mod
era tion of the government ca n procure wealth there"; correspondingly,
[fixes will be seen by citizens as "a kind of reward to the prince for the rc
~pect of the laws" (SL, XIJI: 13,221) . If taxes are wisely raised and speot,
(he people wi ll be almost unaware of their existence and will not feci them
as oppressive. What is more, not only arc moderate governments able to
ra ise higher tax revenues in the short-run, but lil>erty itself leads to higher
taxes in the long run . Lower taxes are mOSt often a mark of unfree states,
for "extreme servitude cannot be increased" (SL, XHl: 13, 222), and des
potic reg.imes have few means of increasing the burden upon their subjects.
As a general rule, Montesquieu argued, "one ca n levy heavier taxes in pro
portion to th e liberty of the subjects and one is forced to moderate them
insofar as servitude increases.... In moderate states, there is a compensa
tion for hea vy taxes; it is liberty. In despotic states, there is an equivalent for
liberty; it is modest taxes" (SL, XJJI: 12, 220-21).u
What are the implications of Montesquieu's plea for fiscal moderation?
As Catherine Larrere has pointed out, "one can find here in Montesquieu's
thought the liberal idea that individual interest is the beSt guide (or each
person's conduct and that no repressive authority is needed, aloog with a
special emphasis on the need fOf, and right of everyone, for ease and


1:31 :42 PM



wealth."" In Momesquieu's view, the an: of good government requires that

rulers and legislators take advantage of the passions of the people--cupidiry,
a desire for gain, the ambition to rise. and va nity-in orde r to gu ide them
with a "gentle" and moderate tollch. That is why the best course of action is
to follow nature and exercise constraint, while employing extreme measures
on ly sparingly. "Nature is just toward men," Montesquieu wrote. "'She re
wards them for their pains; she makes them hard workers because she at
taches greater rewards to greater work. But if 3n arbitrary power removes
nature's rewards, the dinaste for work recurs and inaction appears to be the
only good" (SL, XIII: 2, 214). Fiscal moderation encourages people to work,
fostering frugality and foresight: " In a nation that is in servitude, one works
more to preserve than to acquire; in .. free nation, one works more to ac
quire than to preserve.""
MOnlesquieu's call for fiscal moderation and his dttlared preference for a
rationaliutioll of fiscal policies ar~ peculiar in at least one other important
respect. In spite of his avowed ttonomic liberalism, he did not follow the
lockean classical scheme of "no taxation without representation." In mod
erate governments, Montesquieu maintained, taxes are not based on an ex
plicit contract of submission, but are seen as a way of " rewa rding" the rul
ers for obeying the laws and treating thei r subjects with respect. As such,
taxes arc an expression of public trust in rul ers and laws and an obligation
arising from tacit consenl.'s

The Constitutional Framework of Moderate Government

Montesquieu's concept of moderation begins to come illlo sharper (ocus
now as more light is shed on its ethical, conStiTutional, penal, and fiscal di
mensions, all of which are connected to political moderation. The next step
in o ur analysis will involve a dose examination of his theory of political
moderation as illuStrated by several key chapters in SL. (V: 14; XI: 6-8) and
the Considerations (VIII. LX, XI). ln rhue chaplers, moderation is presented
both as a constitutiona l prinCiple and as a prerequisite of pol itical and so
cial pluralism essential tn the preservation of liherry. Building moderate
government, Montesquieu argued, requires no less a masferwork of legisla
tion, combining both practical wisdom and vision. In order to fo rnl a mod
erate government, "one must combine powers, regulate Them. lI:mpcr them,
make them act; one mUSt give one power a ballast, 50 to speak, (Q put It in
a position to resist another." As such, moderate government is a work of art,
"a masterpiece of legislation that chance toIrely produces and prudence is
rarely allowed to produce" (S L, V:14,63). The alchemy necessary for reach
ing this fragile equipoise is a tru e work of political art at the core of which
are political moderation and limited power.
The previous di scussion of Monresquieu's analysis of Rome's mixed con
stitution drew our aftenrion to the existence of an imporr21l1 relationship


1;3! :~3 PM 1

Arc:hilecrure of Modenr(: Government


between the conceptS of mixture, equipoise, balance, and harmony. Much

as musical harmony is the ou tcome of an imerplay between dissonance and
concord, so political order is tht resulr of welltempered and regulated can
(Iict and tension mediated by sound laws and effective checks and balances.
The moderation characterizing free governments is the result of the smooch
flow of power through mediating channels. which transform discordant
passions and imerests into social harmony. In such govemments, political
liberty results from the "agitation '" and friction that is produced when di
verse social groups and interests collide. It is Ihe upshot of "une COllvention
de plusiel4rs et line discussion d'inrerets"" based on ti n intricate web of mu
tually controlling passions and interests, imcrmediary (corporate) bodies,
loca l cusroms, and liberties. Two d ifferent yet related meanings of moderate
government emerge from Montesquieu's use of the twin metaphors of scale
and balance. The first refers to the harmonious interplay or cooperation
between different political forces in the state, while the second connotes "a
re/:lu lated conflict of opposing groups, from whose institutionally coot ro lled
struggles for power results the freedom of the state."'O It is to this second
meaning rhat we turn next in order to explore the constitutio nal architec
ture of moderate government.
Momesq uieu paid particular attention ro this topic, especiall y in SL, Xl:
6, a chapter often viewed as a panegyric of the English constitutio n and il.$
alleged "sepa ration " of powers. A closer look revea ls. however, that Mon
tcsquieu in fact favored a blending rather than a strict separation of powers
and referred in his book to poul)oirs distribuis and not to pCJllvoirS separes. 71
Moreover, he had serious misgivings about what he feared were excesses of
liberty in England and warned that the prodigious love of liberry among the
English might run to regrettable extremes if not properly regulated by mores
and channeled into adequate institutions.
A conceptual clarifi':ltion is in order hert: , Momesquieu began his famo us
chapter XI: 6 (in SL) by defining the three main powers in the state as fol
lows: "In each state there are three sortS of powt!r : le gi~ lativ e power, execu
tive power over the things depending on the right of nations, and executive
power over the rhings depending on civil right" (SL, XI: 6, 156). He argued
that " the masterwork of legislation is to know where properly to place the
power of judging"; and he added that the latter "could not be placed worse
than in the hands of the one who already has executive power" (SL, XI: 11.
169). Worth noting here is the definition of judicial power as "the executive
power over the things depending on civi l right" (MoTltesquieu used, in (act,
the phrase la puissance d~ juge, inS[cad of pOlfl.loir judiciair~). Thi s re
minds us th at in Montesquieu's writings, the judiciary does nOt have yet
the prominent position it would have a few decades later in the Fed~,alist
Papers.71 Altbough Montesquieu considered independent judges an essen
tial condition (or the preservation of freedo m, he did not grant the judi
ciary a status equal to that of the leg islative and executive powers. None
theless , to the question whether the judiciary power ca n and should be

C........lnllb ~

UVIII2OI1 1:, ,:43PM

50 Two
entirely independent f(om the other (wo powcrs, Montcsquieu responded
in the affirmative, stressing the importance of the mit of law in securing
political moderation .
What, then, is the relationship between these conceptS and the famous
"separation" of powers? The works of Miclld Tropt:r ami M .J.e. Vile point
to two different ways of thinking about constitutionalism , separation, and
the ba lance: of powels .n According to Troper, it is important to distinguish
between doctrines proposing a hierarchy among powers and those seeking
to create equilibrium between them, without assigning supe riority to a ny
one. The doctrine of the balance of powers has historically been grounded
in the recognition of the supremacy of th e legislative power,'~ a fact amply
connrmed by the U.S. Constitution, among others. It dots not imply a SHief
separation between the legislati ve: and the eXecu live powers and refers in
stead to the balance between the twO main powers sha rin g in the exercise of
the legislative function . The different authorities sharing in the legislative
function may include the fWO chambers of parliament, the ministers as
agents of the executive power. and the constitutional mo narch or other head
o f the sta te. H ence, Troper concluded, we must distinguish between the sep
ararion of powers and the balance of powers, as the laner can be achieved
either through separation or specialization."
It was the doctrine of the ba lanced constitution rather than the theory of
the Strict sepa ra tio n of powers that became the basis of Monlesquieu's ac
count of the English constitution in SL. One will 6nd in his writings neither
a defense of a functional separation of powers nor an unambiguous case for
the separation of the personnel of the legislative and executive powers. n
His key point can be sta ted as follows: li berty and moderation cannOI ex ist
in a state in wh ic h power is chronica ll y abused and which lacks proper
checks and balances. In order t{l build moderate government and prevent
abuses of power, onc nlust create viab le institutional mechanisms that can
effectively block attempts at usurping powe r: "So that one ca nnot abuse
power, power must check power by the arrangement of things" (SL, XI: 4,

H ence, what is usually referred to as the "separation" of powers in MOrl
Tesquieu's work can be summarized by the followin g two principles: ( 1) the
legislative power may never be combined with the: executi ve power in one
single person or body of magistrates; (2) the power of judging must be sepa
rate from both the legislative and executive power so as to be ahle to tell the
truth to those in power and dfectively protect the rights of individua ls.
He nce, in moderate regimes no single person or body o f magislfates can si
mu ltaneously eXl"rcise both the executive and th e judiciary power. "All
would be lost," Montesquieu acknowledged, "if the same man or the same:
body of principal men, either nobles, or of the people, exercised these three
powers: that of making the laws, that of execu ling public resolutions, and
chat of judging the crimes or the dispotes of individuals" (SL, XI: 6, 1.)7).77

I c~..



ArchiteelUrt o f Moderate Governmelll


In many kingdo ms of Europe, Montesquieu added, " the government is

moderate because the prince, who has the first two powers, leaves the exer
cise o f the third to his subjects" (SL, XI: 6, 157),
Whi le distinguishing between the sepa ration and distribution of powers,
Montesquieu a lso redefined the boundary between the three powers in the
state in such a way that they ~ou ld exercise mutual oversigh t and keep each
other in cbeck at all rimes. To prevent the omnipotence of the legis lative
power, he ~tipulated that the legislative body should never convene itself
and should not remain in permanent session. If the executive did not have
the power to regulate the opening and duratio n o f legislati ve sessions, the
assembly could well bet.:ome despotic. At the same time, to prevent the tyr
Ilnny of the executive, Montesquieu insisted that the legislative power must
also have the right "to examine the manner in which the laws it has made
h:tve been executed" (SL, XI: 6, 162). Montesquieu also highlighted the
importance of the inviolability o f the monarch. His person should be "sa
cred" 71 and placed above political groups and panies, as a guaranree of the
stability o f the social o rder. The constilulionallllonarch ought to be politi
ca lly unaccountable in order to be able to properly exeu:ise his politica l
role. Because the mona rch is ultimately bound by Ih e fundam ental laws o f
the kingdom, his power, Momesquieu insisted, is in fact lim ited and moder
ated by countless intermediary bodies, customs, and mores. all acting as
tempering de vices.
Montesquieu granted a share in the legislative and executive power to
bOlh pa rl iament and the monarch in carefully calculated degrees so as to
crea te a functional and flexible system of checks and balances and overla p
ping jurisdictions. I}arliament , he a rgued, must have the right 10 examine
how laws are executed and should retain the right to approve or reject the
ra ising of public fund s by {he executive power. In lu rn , in a moderate mon
archy, the sovereign authority must have the right to veto the laws voted by
the two chambers: "Executive power should take part in legislat ion by irs
facult y o f vetoing; otherwise it will be stripped of its prerogatives" (SL, X I:
6, 164). Nonetheless, the participati on of the mo narch in the exercise of the
legislative power o ught to be limited , and the monarch should never take
pa rt in legislatio n by enacting laws; if he were to do so, " there would no
lo nger be Iiberty,"7'
Furthermore, Montesquicu did not explicitl y advoca te the political re
sponsibili ty of the king's ministers in parliameotlQ and stopped short of en
dorsing the more traditiona l doct rine of " the king-in-pa rliament ."" In a
seminal passage, be de.\Cribed the final outcome o f these constitutio na.! pro
visions as follows: " Here, therefore, is [he fundamental constitution of the
government of which ..... e are speaking. As its legislative body is composed of
twO partS, Ihe one wi ll be chained to the ot her by their reciproca l faculty of
vetoing. The twO will be bound by the executive power, wh ich will itself be
bound by the legislative power.... As lhey are constrained to move by the



necessary motion o f things, they will be forced to move in concert" (SL, XI:
6).12 Wha t is rema rkable in this passage is that Montesquieu refers to inde
pen dent powers tha t are "chained" to each othe r, stressing that they are in
terdependent and always bound to act " in concert" fo r the sake of the com
mon good.
We :'Ire now in a better position to understand how Montesquieu was
able to reformula te in modern term~ the old Ciceronia n theory of concordia
ordinllm (discussed earlier) by giving it a modern co n .~ t j t u t iona l twi st. Al
though the two main powers in the state (t he legis lative and the executive)
are in theory independem of each other, in rea li ry they are o ften o bliged to
compro mise and temper their politit:n l ambitions. The depu ties ' initia tives
cannot become laws without the ap prova l of the monarch, a royal Veto
forcing in each case parliament to return to the drawing board. At the sa me
time, the mona rch must ca refully weigh the options fo r the fo rmation of his
cabinet, being expted to propose to the two Chambers only those mi nis
ters who would govern according to (and not against) the wishes o f the
majo rity in parliament. Thus, de iure independence of powen is not the
same thing as de facto independence. Many interpreta tions of Momesquieu
make the error of confounding the twO by 3ssuming that the first necessarily
implies in practice a strict sepa ration of powers and their funetions.u
It might seem odd, then, that Mon tesquieu's a lleged "separation" o f pow
ers becomes in the end a balance of mutua lly contro lling powers tha t keep
each other in equipoise and tire bound to 3Ct in concert for promoting the
common good.- This interpretation reflects Montesquieu's endorsement of
a hybri d constitutiona l model combining the "separ3tion" of powers with
the decentralized fram ework of the older Gothic constitution, based o n a
complex vertical system o f overlapping institutions and jurisdictions. As Lee
Wa rd perceptivd y noted, "Montesq uieu presents the federal princi ples em
bedded in the decentralized Gothic Constitution as a vita l supplement to the
separati on o f powers, and a correcti ve to the problem o f conce ntrated
po wer in modern Engl and and France,', IJ Thi s semina l point becomes evi
dent in the last (often neglected) books o f SL. where Montesqu icu offers a
deta iled examination o f French feudal laws that is essenti al to an under
stan ding of his political moderation. He examined the system of the justice
of lords according to which justice was a rig ht inhe rent in the fiefs," insist
Ing on the "infinity of charters prohibiting the judges or officers of the king
from entering the territory f a exercise any act of justice whatever o r to re
q uire any judicia l emolument whatever" (SL, XXX: 20,652). This is im por
tant beca use it confirms that. under feuda l government, the authority of the
monarch was in fact a limited power, especially after the reign of Cha r
lemagne. The king, Montesquieu wrote, "had almost no more direct author
iry: a power tha t had to pass through $0 many other powers and th rough
such great powers was chechd or lost before reaching its goal. Such grea t
vassa ls no lo nger obeyed, and they even used their under-vassals in o rder
not to obey any longer" (SL, XXX I: 32, 7 16).

Architecture of Moderate Government 53

Thus, Montesquieu's theory of the bala nce of powers achieved in Ihe end
something that a strict sepa ratio n of powers would never have been able to
accomplish o n its own. For the principle of the separation of powers does
nOf actually determine how powers ought to be composed; it merely sepa
rates their functions and spheres of competence and is common to several
types of commonwealths. Monresquieu undersrood this point better than
anyone else. 1n his eyes, moderation as a constitutio nal principle combined
the horizontal separation of powers among various branches of government
with the vertical diffusion of power among several layers of authority.' Ac
cording to this view, it would be incorrect to simply call parliament the
" legislative" power and government the "executive" power, since neither
power is placed exclusively in tbe hands of either parliament or the govern
ment. They are, in fact, blended and mixed between the twO in such a way
that both powers are able to reciprocally control and temper each other's
initiatives .
By refUSing to give the direction of Ihe commonwe",ltn to a si ngle body or
person, Montesqu ieu challenged competing theories o( sovereignty-those
o f Bodin, Hobbes, and Rousseau-which endorsed a unitary and undivided
source of sovereignty. In this respect, one can detect an important affinit),
between Montesquieu 's ideas on sovereignty and those of his contemporary
JeanJacques Burlamaqui (1694-1748), whose Prin cipes du droit naturel et
politique was published in 1747, a year before Montesquieu's nttlgnum
opus. Burlamaqui's conception of the balance of powers, which resembled
Montesquieu's constitut ionalist agenda, exercised considerable infJuen~ on
the Founding Fathers. There is, in {act, ample evidence that his work was
widely known in mid-eighteenth-century American colleges.1I In an impor
tant passage he explicitly referred to the balance of powers and checks and
balances in a tone that reminds one o f Montesquieu:
This partition produces a balance of power, which places the differ
ent bodies of the state in such a mutual dependence, as retains every
one, who has a share in the sovereign authority, within the bounds
which the law prescribes to them; by which means the public lib
erty is secured. ror example, the royal authority is balanced by the
power of the pe()ple, and a third order serves as a counter-balance
to the two former, to keep them always in an eq uilibrillm, and hin
der the one from subverting the other.~
Commenting o n the relationship between div ided sovereignty, mixed gov
ernment, balance of powers, and political modera tio n, Bllrlamaqui reached
a set of conclusions similar 10 Montesquieu's: " From what has been said on
the nature of mixed or compound governments," Burlamaqui wrote refer
ring to moderate governments, "i t (ollows, that in all such Slates, the sover
eignty is lim ited; for as the different branches ate not committed to a single
person, but lodged in different hands, the power of those, who have a share


I :3I',43PIoI I



in the government, is thereby restrained; and as they are thus a check to

each other, this produces such a balance of authority, as secures the public
weal, and the liberty of individuals."!KI
At the sa me time, it must be pointed out that Montesquieu went farther
than his Genevan contempora ry in linking moderation to ba lance of powers
and poli tical pluralism as prerequisites of a free sociNY. Liberty, Mon tes
quieu argued , is best proteCted in a regime in which rhr power and the gov
ernment of society are in the hands of various socia l groups and interests
competing for supremacy. Thus, moderate govern ment s call survive and
thrive only if th eir institutions foster and ~uccessfully chanuc=:! the genuine
pluralism of interests and ideas withom which there can never be any last
ing freedom or security.'!

The Good Legis lator and the Spirit of Moderation

I have already referred to Montesq uieu's claim that the good legislator
should be imbued with the spirit of moduation. For .. II its brevity, Ihis re
mains an ambiguous remark. Why should moderation be the supreme \'ir
tue of the legislator rather than fairness or justice? Mnn lesquieu's answer to
thi s qurstio n is worth exam ining in drtail since il is central 10 the mai n
themes of the present book. As Celine Spector has pointed OUI , Montes
quitu's cheory o f moderation is, above all, "line thiorie de la mesure, .. and
in his writings, moderation is grounded in a larger vision of the "political
good." He was aware Ihat few conceprs were likely to generate more con
troversy than the larrer. and he preferred to sa)' o f che political good only
that, " like the moral good , {itl is always found between tWO limits" (SL ,
XXIX: 1,602) and d oe~ nor lend itse lf to a more precise fo rmulation . The
difficulty in finding the right hal a n c~ is compounded by th e fact thaI, in rhe
rea lm o f politics, the right measure call ne ver be discove red with Ihe aid of
apodiclic for mula s. Similar to the politica l good, an)' vIrtue or political
principlc--includ ing li berty, equality, .. nd juslice--ca n easily be abused.'3
Hence, wise legi slators mU St seek to ca rve out a middle ground between
extremes, a nd the o nly resources they have at their disposal are prudence,
discernment, and modera tion.
Montesquieu devoted many pages to discussing the an of legislation in
painsraking details. Drawing a fundamental Jistinction berween laws and
the "spirit" of the laws, he emphasized Ihe dr pendence of politica l in ~titu
tions and laws on social, economic, and cultural facto rs. Nevertheless, the
political sphere retained a key role in his writings as the main stated purpose
of SL-namciy, the education of the legislator-suggem. Montcsquieu be
lieved that the nalure of a society is primarily a derivalive o f the nature and
principles of its government and claimed that principles always exe rcise a
fundamental influence on the nature of the I:Iws_Appu ranccs no twithstand


AcchileClure of Moderate Government


ing, there is no a priorj contradiction between slressing, on the one hand, the
importance of non-political factors and, on the other hand, affirming the
primacy of the political sphere.'" Wise legislato rs always sk to work with
rather than againsl-the general spirit and the mores of a country, and the
greatness of legislative genius consists "in knowing in which cases there must
be uniformity and in which differences" (SL, XXIX: t 8, 617).
This might hdp explain why Monlesquieu, who rejected the idea of uni
(arm legislation, refused to admit that political questions could ever be re
duced to a few geotral and simple propositions or universally applicable
recommendations, a position that would be ~harcd by Condorcet a few de
cades latcr. 9S It is revealing that ill the last chapter of book XXIX of SL,
Montesquieu counted neither Locke nor More nor Harrington among man
kind's greatest legislators. Instead, he invoked the names of Aristotle aod
Machiavelli, the twO great masters of prudence, the contextua l virtue par
excellence and one that Montesquieu appreciated as well. More impor
tantl y, it was Montesquieu's endorsement of the fundamental indeterminacy
of Ihe political good that gave his political theory a moderate to ne, prevent
ing it from becoming deterministic or axiomatic." As we have seen, Mon
lesquieu argued that there is more than one good form of government, add
ing that wise legislators must try to moderate the shortcomings of ~a c h rype,
a ta sk Ihat is possible in all governments save despotism. This undertaking
requires prudence and discernment and imposes upon legislators the duty to
promote toleration and pluralism.
It is ill this light that one must examine Montesquieu's ideas all climate
and geography. Far from being deterministic, Montesquieu admitted in un
ambiguous terms that a muhiplicilY of factors gove rn human behavior:
"Many things govern men: climate, religion, Il\ws, the maxims of the gov
ernment, examples of past things, mores, and manners; a general spirit is
formed as a result" (SL, XIX: 4, 3 10). Wonh nOling here is Montesquieu's
empha sis o n the pluralily of faCl O(S that inflll~nce and constrain the choices
of legislators. At the sa me time, he argued that while it would be unwise to
ignore the power of mores, customs, and manners, thes~ factors never fully
determine the range of the possible in polirics, Accordingly, wise legislators
alwa ys take into consideration the needs of different climates, which in turn
foster different ways of living and demand corresponding kinds of Jaws. 97
While Montesquieu recognized that "there are climates in which the physi
cal aspeCt has such strength that morality can do practica lly nothing" (SL,
XVl: 8,269), he Slopped short of endorsing resignation or fatalism," In
stead, he a rgued that when the physical character of a climate goes against
natural laws governing interactio n bctwttn human beings, legislators can
and mU${ make civil Jaws that counteract the dfects of the c1imat~." Bad
legisl:uors favor and encouraBc Ihe vices caused by the climate of a country,
whi le good ones try to enaC( measures Ihat mitigate a nd limit their nefari
ous effects, such as laziness, indifferenCe!. and aparhy.loo



To bene::r illustrate Montesquieu's modera tion, it might be helpful to con

trast his approach to Ic=gislation in book XXIX of SL with Condo rcet'S
views include::d in Destun de Tracy's work on Montesquieu. Condorcet
found book XXIX to be "one the most curious chapters of the work ...
which obtaine::d for Montesquieu the indulgence of all the prejudiced peo
plc=, of all those who detest light, of all the protectors and participators in
abuse." ,01 In his commentary on Montesquieu, Destutt de Trncy echoed
Condorcet's criticism: "There is nothing instructive here, except what arises
out of the manner in which Condorcet has criticized this book, or nuher
new modeled it."101 Unlike Montesquieu. Condorcet put justice above mod
cration, claiming that justice and reasonableness rathe::r than moderation
must be the:: guiding principles of any legislato r: '" know that the spi rit of a
legislator should be justice .... The first duty of a legislator is to be JUSt and
reasonable ." W.l This is why, in Condorcet's view, "it is not by the spirit of
moderation, but by the spirit o f justice, that criminal laws sho uld be mild,
that civil laws tend to equality, and the la ws of (he municipal admin istratio n
to libe::rty and prosperity."'Oo4
C.onsequently, Condo rcet crit icized Moncesquieu's moderation for its am
biguity and failure to give justice ilS due, referring to it as "that spi rit of
uncertainty which alters by a hundred little irrelevant motives, the princi
ples of Justice, which are in themselves invariable::."lOs Condorcer also dis
agreed with Montesqui eu on the nature of the laws and the relationship
between the particular and the universal. Moreover, while Montesqui eu fa
vored complexity and particularity, Condorat inclined toward simplicity
and uniformity. Convinced th at injustice is oftcn caused by unnecessaril y
complicated formaliti es and rules, he argued that the diversity of laws is
usually the outcome:: of prejudice and ha bit rather than reason. On this view,
all re::asonable individuals could (and should) ultimately agree on natural,
uniform, and unchangea ble standards in legislation suc.h as would e::nsure
(hat "truth , reason, justice::, the righl5 of men, the interests of property, of
liberty, of security are:: in all places the same." I06 Since:: laws are nothing but
"a faithful regard to the:: laws of nature," they ought to be seen as univer
sally valid, similar to mathematical laws: "A good law should be good for
all men. A true proposition is true everywhere." lo1 The upshot of Con
dorcet's view was that, for the sake o f justice and fairness, uniform laws
could be established WitflOut dange r to liberty and se::curity. Justice must
trump moderation in all circumstances.
Montesquieu opposed this approach to legislation with a trenchant cri
tique of uniformity. He argued:
There are certain ideas of lllliformity that sometimes seize great
spirits (for they touched Cha rlemagne), but that infallibly strike
small one::s. They find in it a kind of perfection they recognize be
cause it is impossible:: not to discover it: in the police the same

ArchiteclUrc of Moderate Government


weights, in commerce the same measures, in the state the same laws
and the same religion in every part of it. Bur is this always and
without exception appropriate? ... And does nor the greamess of
genius consist rather in knowiog in which cases there must be uni
formity and in which differences?IOf
This passage is jntere~ting because it raises the question of Montesquieu's
complex and ambiguous attitude toward na[urallaw.lO~ In SL, XXVI; 1, he
acknowledged that natural law is only one of the many categories of laws
by which men are governed. It takes its place alongside divine law, ecclesias
tical law, the law of nations, the general political law, and the civil law of
each sociery. While natural law may sometimes provide effective standards
for judging political and civil matters, it cannot be applied uniformly, with
out giving due considuation to particular circumstances and contexts. In
this respect, the cardinal virtues of all legisla tors are prudence and modera
tion, virtues that defenders of uniformity tend to overlook or underesti
mate. The centrality of prudence to (good) legislation looms large in the first
cbapter of book XXVl, in which Montesquieu admits that wise legislators
must acknowledge the existence of differenl orders of laws and remarked
that "the sublimity of human reason consists in knowing well to which of
chese orders principally relate the things on which one should enact and in
not putting confusion into the principles that should govern men" (SL,
XXVl; 1,494).10 the next chapter MOnlcsquieu defined the:art of legisla
tion as using the right principles to suit va rious circumstances. WiR legisla
tors, he claimed, know that laws have different effects varying with timt:
and space, and that good legislation ili the art of the particular and the pos
sible rather than of the best. 110
It is in this context thac one must interpret and understand MOnlesquieu's
advice in SL, XXIX; 16 about the many things that must be observed in the
composition and reform of the laws. In order to avoid or limit arbitrariness,
the style of the laws is often as important as their content, and laws must be
"concise n and "simple." "It is essential for the words of the laws to awaken
the same ideas in all men" (S L, XXIX; 16,613) and vague formulations
must be avoided at all COSts. "The laws," Montesquieu ins isted. "should not
be subtle; they arc made for people of middling understanding; they are not
an art of logic but the simple reasoning of a father of the family" (SL, XXIX;
16 ,614) . Reasons for changi ng a law must be dearly formulated and com
municated; it is prdeuble not to include limitations, modifications in a law,
for such complicated details would require, in turn, new details and addi
tional justification. Moreover, legislators must pay due consideration to the
difference between a law and the means of implementing it. The most reli
able principle they can use in this regard is moderation, which teaches legis
lators "what part of power, grr.:at or small, should be used in va rious cir
cums tance~ " (SL, XlI; 25, 209), or how and when co apply various orders of

10f1112011 1::JI :4.1N



laws to particular circumstanc~ s and obi ~ cts ( th~ th~m~ s of books XXVI
and XXIX of SL), With r~ga r d to th ~ d iff~r~nc~s b~tween ci vil and rdigiou s
laws, Mont~squi~u argu~d that "o n~ should not ~na ct by divin~ laws that
which should be ~nact~d by human laws, or r~gulat~ hy human laws that
which should be r~gular~d by di v in~ laws" (SL , XXVI: 2,495), Civi l laws
must seek to promot~ human ius ti c~ rath ~ r than divine justice, which lies
outside of their rea lm; "religious laws arc more sublime; civil laws arc more
extensive" (SL, XXVI: 9,502). Hence, "human la ws coact abo ut the good;
religion, about the best" (SL, XXVI: 2, 495 ). Montesquicu warned that leg
islators should not decide by the precepts of rdigion when matt~rs of natu
ral law are in question, nor should th~y try to apply the laws of religion
(whose main goal is to promote the moral goodness of mdividuals) to those
Things that ought to be gov~rn~d by th ~ principl~s of ci vil la w. and whose
guiding principl~ is the general good of soci~ty.
Similar rdations obtain b etw~e n civil and political laws. The first depend
on the political laws of a country and cannot be sep:.I. rateu fr orrl the contt:xt
from which they have emerged . Montesquieu affirmed that thil1gs thaI de
p~nd 011 prillcipl~s of civil law should nOt be ru led by principle's of political
law, as for example in questions of privar~ prop~rty rights. where "It is a
falla cy to say that the good o f the individual sho uld yield to the public
good" (SL, XXIX: 15,510). Some things, such as whether the domai n of the
state is a l i~nable, should ~ decided by politicallawlO and not by civillawlO.
Furthermor~, Montesquj~u deoi~d that a particular society ca n m alc:~ laws
for anoth~r society, since th~re is no such thing as a universall y good law,
independent of various political and ~xtra-political conditions. III When leg
islators suk to transfer civil laws from on~ natio n to ano th~ r. they must
ca refu lly examine and compar~ the simila rit i~s and differ~nces between
their systems of legislation, [h~ir inst itutions , and their mores. On this view,
p rud~n ce is r~qu ired even when dealing with laws wh ich, at first sight, might
a ppear to ~ universally JUSt and fair, for their application ma y have unin
tended consequenc~s that limit their genera l effectivene ss.
Montesquieu believed that one o f the greatelOt mistakes of legislators is 10
try to imprudently change the general spi rit of their nation, and he insisted
that they would be well advjlOcd to refrain from anempting to correct ever y
thing by m~ans of laws. Inst~ad, h ~ opined , legislators must always follow
"t he spi rit of a natio n when doing so is not contrary to th ~ pri nc iples o f the
government" (SL, XIX: 5, 310). H~ nc~, h~ concluded. legislators lIIu st nor
confuse laws with mo res and mann~rs and should avoid introducing new
laws aiming at changing the general spirit of a natio n. Most often, it is laws
that fo llow m o r~s rather than vic~ v~ rsa, and it wou ld be an unwise id~a to
try to chang~ by laws what should be changed only by manners: " When one
wants to change the mores and mann ~rs, on~ must not chang~ th~m by th ~
I<l ws. as this would appear to b~ too tyrannical; it would be beller to change
them by o th~( mor~s and mh~r mann~rs.... It is a v~ry bad po licy to change
hy laws what sho uld be changed by mann~rs" (St, XIX: 14,3 IS). Wis~ I~g-

Architecwre of Moderate Government


islators. Montesquieu believed. llluSt flot try to correct everything; instead,

they sho uld learn how to work with nature which " repairs everything" (S L,
XIX: 6, 311), taking a little from nne, and adding l\ bit there, always with
moderation, and knowing that "moral qlll\lities h:tvc= diffc=rc=nt effects ac
cording to the other qualities united with them" (SL, XIX: 9, 313).
Since tbere can be no recipe for good legislation in general, legislators
must be nexible in order to avoid the misfortune of becoming tyrannical.
Montesquieu praised those legislators who artempted to instill civic virtue
rather than merely in nicting puni shment, and he admired as well eclectic
legis lators who drew on the lessons of philosophy, morality. and religion in
order to make effective laws promoting freedom and sound moreS . Legisla
tors who want to change laws must model new mores and shape old ones in
keeping with each country's rradido ns. mores, ma nners, and cuhure.1Il For
example, " in moderate states , love of the homeland, shame, and fear of
blame are motives that serve as restraints" (SL, V1: 9, 82) and suppon the
laws, which is not the case in despotic regimes. Furthermore, it would be
foolish to t.ry to impart a pedantic spirit to a nation naturally full of gaiety.
since such laws would unwisely dist urb or curb the people's sociable humor.
Montesquieu boldl y ca lled for a redefiniti on of politica l virtue and vice. ar
guing that "not all political vices are moral vices and not all moral vices are
politica l vices" (SL, XIX: II, 3l4) . Aware that " the various characters of
the nations are mixtures of virtues and vices, of good and bad qualities"
(SL, XIX: 10, 3 13), prudent legislators will therefore seek to achieve an al
chemy of passions sui generis by using the natio n's virtues in order to limit
its vices.
One fina l consideration is in order here. In Monresquieu's opinion, politi
cal moderation is not incompatible with firmness in extreme circumstances,
when the authority of the laws is cha llenged and publiC order is threatened.
Specia l provisions must be made for the emergency powers necessary for
solving crises that are not entirely managea ble under constitutional or stat
utory law. Such provisions pres uppose the conso lidation of powers nor
matly divided between the executive and legislative, but they can also refer
to the derogation of Tights and liberties enshrined in the constitution. Mon
tesquieu acknowledged that "if the legislative power believed itself endan
gered by some secret conspiracy aga inst the state or by some correspon
dence with its enemies on the outside, it could, for a brief and limited time,
permit the exec utive power to arrest suspected citizens who would lose their
liberty for a time only so that it would be prese rved forever " (SL, XI: 6,
159). A few pages later, he commented on the circumstances in which the
usage of liberty may be legally suspended in a republic. "There are cases,"
he wrote, "where a veil has to be drawn, for a moment, oyer liberty, as one
hides the statues of the gods" (SL, XII : 19,204). The examples Montesquieu
chose were taken from Athens and Rome, much like the olles to which Ma
chiavelli referred in his Discorsi. One of the laws passed by the Romans
provided for investing dictators with absolute powers such as would allow

1110'1112011 1:31:43PM I



them to take swift and timely decisions in emergency situations, while at the
same time special conditions were devised to prevent them from abusing
their power and authority. III These derogatory powers were to be granted
solely for a "brief and limittd time" and for a single task: to enable the state
to protect liberty. II.

How Can Democratic and Arisrocraric Regimes Be Moderated?

Montesquieu was particularly interested in the mochanisms whereby aristo
cronic and democratic regimes might be moderated, and he resorted to a
subtle reconstruction of the arcbitecture of aristocratic governments at the
I,;ore of which he placed the concept of pluralism. Far frOIll linking modera
tion to a single principle, group, or class (such as aristocracy), Montesquieu
believed that moderation is the result of many combined factors creating a
framework incompatible with social and political monism.
Acknowledging the diversity and pluralism of aristocratic regimes, Mon
lesquieu highlighted the affinities between the spirit and institutional archi
tecture of aristocratic and moderate governments, noting that moderation
represents the "soul" of aristocratic regimes. "The spirit of moderation," he
wrote, "is what is called virtue in aristocracy; there it takes the place of the
spirit of equality in the popular Hate" (SL, V: 8,51). In aristocratic govern
mentS, the nobles restrain their ambitions either by a "great virtue that
makes (them) in some ways equal to toeir people," or by "a lesser virrue, a
certain moderation that renders toe nobles at least equal among themselves,
which brings about their preservation" (SL, II: 4,24) . Nonetheless, tbe no
ble5' sense of honor must always be complemented by the txistence of a
so und balance of powers, which in order to he achieved, requires true politi
cal art, wise institutional crafting, and effective legislation capable of tem
pering the teudency of aristocratic regimes to extreme inequality. liS In order
to prevent the latter, laws should never sanction any caste privileges. Among
the means of moderating aristocratic regimes, Montesquieu singled oue
Jaws aimed at equalizing fami.lies foTtunes, which at toe same time contrib
ute to maintaining their unity. II ' Montesquieu recommended that the Jaws
"remove the right of primogeniture from the nobles so that fortunes are al
ways restored to equality by the continual division of inheritance" (SL, V: 8,
54). Moreover, there should always be a higher tribunal to correct abuses of
public administration, and magistrates should refrain from drawing sti
pends {rOIll their offices and should never be allowed to divide the revenues
o f the state among themselves with impunity.
Montesquieu granted a special role to intermediary powers-nobles, POT
I~metlts. the clergy, local authorities-in prese rving moderation and liberty
in mo narchica l regimes. The importance o f these corps illt(!rmiditl ir~s de
rived mainly from their ability to successfully reslrain and temper the mo
menta ry and potentially capricious will of the monarch. If you abolish the

CraIIIhl .1nctI I



Architecture of Moderate Government


prerogatives of the nubles, Momesquieu warned, the political equipoise

would disappear: "No monarch, no nobility : no nobility, no monarch."117
Monarchies, he argued, are corrupted when the prerogatives of the estab
lished bodies and local liberties (the privileges of the towns) are gradually
removed and destroyed. III In moderate regimes in which the monarch exer
cises power only in keeping with the fundamental laws and customs of the
country, m the power of the sovereign is also tempered by the existence of
many differences in rank, origin, and condition that carry with them signifi
cant distinctions in the nature of men's goods and laws. No monarch ever
enjoys an absolute, unlimited power in modern society: "JUSt as the sea,
which seems to want to cover the whole earth, is checked by the grasses and
the smallest bits of gravel on the shore, so monarchs, whose power seems
boundless, are checked by the slightest obstacles and submit their natural
pride to supplication and prayer" (SL, II: 4, 18).
In addition to fixed and fundamental laws, various customs, social codes,
religious norms) and political forms protect the honor, fortune, life, and
liberty of citiz.ens by moderating the ambitions of princes and ensuring that
things afe rarely carried to excess. no In these regimes "temperings are pro
posed, agreements 3re reached, corrections are made; the laws home vig
orous again and make themselves heard." u, Of special importance is the
presence of a "depository of laws which can only be located in political
bodies such a~ parlements and COurts of justice, which annou.nce the laws
when they are made and recall them when they are forgotten" (SL,ll: 4, 19).
Momesquieu included among the intermediate, subordinate, and dependent
powers and political bodies the porif!ments, whose task was to preserve, use,
and interpret the laws. 122 Because these bodies were independem of the
prince's council, they constituted an effective balance thai, along with other
limitations placed upon the monarch's will, was supposed to prevent the
latter from becoming arbitrary.
Momesquieu's account of moderating democracy complements his dis
cussion of moderating monarchies in SL. Good connoisseu r of Greek and
Roman history that he was, Momesquieu admired the discernment and po
litical acumen of ancient legislators like Solon, whom he regarded as a gen
uine example of moderation. Commenting on Solon's prescriptions for
electing and conrrolling magistrates, he noted that, in Athens, those posi
tions which had Significant political clout and involved significant expenses
were granted by election, while others were decided by lot. Military officers
belonged to the first category, senators and judges to the second . 1n order to
limit the shortcomings of the lottery, Solo n dt(ided that one could elect only
from the number of those who presented themselves, that judges would ex
amine those who had been elected, and that magisrrares ought to be re
quired at the end of their manJate to give an account of their activiries. The
situation, Monte!.qui eu added, wu not very different in Rome, where the
people had the right of making new laws, but the senate retained the right
to pass and enact normative acts . The validity of these acts was, however,


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limited, usually to one yea r, and they could become ~rmanent on ly afte r
the people gave their explicit consent.1H
There is another important facet of Montesquieu 's argument abom mod
erating democracy that can be explained in light of his vic:ws on equality.
While Montesquieu was aware of the importance of this concept, he real
ized that it would be impossible to determ ine once and fo r all the desi rabl e
level of equality in democratic regimes. In SL, VIII: 3, he distinguished be
tween tempered (regulated) and untempered (unregulated) democracy, not
ing that in the former people are equal only as citizens, whi le in the latter
equa lity indiscriminately spreads to all areas of socia l life. Thus, one is equal
nOt only as citizen, but also as magistrate, senator, judge, fath er, husband, or
master. In the {ooHtep::. of Aristotle, Monte::.quieu suggested that proper
equality is a mean between extreme form s of equality and inequality: "As
far as the sky is from the earth, so far is the tfue spiri t of equality from the
spirit of extreme equality. The former consistS neither in making everyone
com mand nor in making no one command, bur in obeying and com ma nd
ing one's equals. It seeks not to have no master but to have only one's equals
fo r masters" (S L, VIII: 3, 114). Moderating democracy amounts, then, to
find ing the right mix of equality and inequality that promOtes the true spirit
of citizenship and fosters proper social bonds. "The principle of democ
ra<:y," Mo ntesquieu affirmed, " is corrupted no t o nly when the spirit of
equality is lost but also when the spirit of extreme equality is taken up and
eac h one wants to be equal of those chosen to command " (SL, V111 : 1, 11 2).
Given that the tendency [Q leveling and uniformity in democratic regimes
inclines them toward despotism,'H Montesquieu argued tha t laws must be
devised with the goal of preventing extremes of both equality and inequal
ity: "Although in a democracy real equa lity is the sou l of the state, still this
equality is so difficult to establish that an extreme precision in this regard
wo uld not always be suitable. It suffices to estab lish a census that reduces
differences or fixes them at a certain point; after which, it is the task of par
ticular laws to equalize inequalities, so to speak, by the burdens they impose
on tbe rich and the relief they afford to the poor" (SL, V: 5, 46--47) . At the
same time, Montesquieu insisted that there will always be individuals who
will be distinguished by birth, wea lth, or honors and who will seek socia l
recognition for their "superiority," forming a "body that ha s the right to
check the enterprises of the people, as the people have the right [Q check
theirs" (S L, XI: 6, 160). Wise legislators should therefore tolerate the exis
tence of inequali ties and try to moderate them, as long as they are d rawn, as
it were, "from the namre of democracy and from the vety principle of equal
il)' " (S L, V, S, 47).

Moderacion, Pluralism , and Commerce

Finally, the rdationship betwecn moderation and pluralism can be exam
ined in connection with Montesquieu's discussion of the moderating effects

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Architecture of Moderate Government 63

of commerce, as well as in light of his claim that one should speak of pol iti
cal Mgoods" (in the plural) ramer than the political "good" (in the singular) .
The implication of the laner statement is that the political good can never
be defined in an unambiguous and uni versal manner, independent of the
particular social and political condifion of each coumry. At the same time,
Momesquieu admitted that there is one such supreme unchanging good
which is the object of religion, whose realm is fundamentally different from
that of politics.
Montesquieu's claim about the impossibility of giving an unambiguous
definition of the political good needs further explanation. In light of his
elusive rderences to "Gothic government" in book Xl of SL, Montesquieu's
refusal to view any political regime, including the English system, as the
"best" is indicative of his moderate approach and stands in sharp contrast
to the ideas of some of his predecessors or contemporaries such as Rous
seau. IlS While both Montesquieu and Rousseau believed that the most im
portant political problem is to find a form of government that places the
law above the man. Rousseau also admitted that, if this fonn could not be
found, it would be "necessary to move to the opposite extreme, and all of a
sudden place the man as far above the law as possible, and thus establish
the most arbitrary despotism." While Rousseau saw "no viable middle point
between the most austere democracy and the most perfect Hobbism/ 1l6
Montesquieu was convinced that such a middle point did exist and could be
achieved in practice if legislators were moderate and flexible. U1
The contrast between Montesquieu and Rousseau is interesting (or yet
another reason. It suggests that the line between the modems and the an
cients should not be traced purely along chronological lines (as is commonly
done by historians of political thought), but must be rethought in light of
the monist-pluralist dichotomy mentioned above. This line separates, in
fact, advoca tes of pluralist polities such as Aristotle, Machiavelli, Montes
quieu, and Burke, who believed in the essential indeterminacy of the politi
cal good and endorsed moderation, (rom philosophers such as Plato,
Hobbes, Rousseau, and Marx who advocated monist theories of the politi
cal good and embraced various forms of radicalism. ,n MonteSQuicu firmly
belongs to the pluralist camp bt:cause his liberalism of fear, based on mod
eration and pluralism, rejected any unitary definition of sovereignty and the
political good.
Moreover, Montesquieu also believed that the line between vice and vir
tue changes over time in such a way that what was previously considered a
vice may later be seen as a virrue (or vice versa). In a famous passage that
must have worried his Catholic critics, Momesquieu went so far as to pro
pose a redefinition of the concept of political virtue, insisting that "moral
qualities have different effects according to the orner qualities united with
them."m One such example is vanity. In unfree governments, vanity com
bined with arrogance can lead to laziness. poverty, and prostration. In free
governments, the situation is different and vanity often has the beneficial
effect of encouraging habits of work and serving as an effective spri ng of

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government. Among the innumerable goods resulting from va nity, Montes

quieu listed luxury, industry, the arts, fashion, politeness, and taste.
For all of Montesquieu's skepticism toward monist theories of the politi
cal good,no he did not fall into the trap of relati vism and did not espouse a
postmodem form of " perspectivism." He unambiguously rejected cruel and
intolerant regimes in which power was unlimited, insisting that in normal
circumstances one must always govern with moderation and gentleness. The
political good, he believed, exists between twO boundaries that can and
must be properly identified and rejected . It is within th is middle ground that
prudent legislators, mindful of the essential indeterminacy of the politica l
good and the dependence of laws on the social condition in each coum ry,
must seek to reconcile different values and principles in order to preserve
human dignity and uphold the ideal of moderate government. In this re
spect, Montesquieu's pluralist perspective followed, to some extent, in the
footsteps of Hobbes, who also believed that in the politieal sphere there
is always a summum malum on which people agree. In Montesquieu's po
litical writings, this absolute evil was despotism, characterized by cruelty
and arbitrary power, and the politica l good was defined by the absence o f
cruelty. loll
Nonetheless, one might argue that Montesquieu made an equally impor
tant argument for the existence of a positive political good-moderate
government-which represents much more than the opposite of a despo
tism based on fear and arbitrary power. In his view, the English constitu
tional monarchy and the French feudal monarchy were variati ons on the
same form of government, moderate government. Montesqu ieu considered
them pluralist regimes with intricate structures consisting of overl apping
centers of powers and interests. Worth noting is not only Montesquieu's
emphasis on pluralism as one of the most important sources of moderation,
but also his claim that all regimes that fail to protect socia l diversiry and
pulitical pluralism cannot-and should not-be called "moderate." Socia l
diversity and political plur.alism depend on a constant competiti on fo r
power between various interests , principles, ideas, an d groups, none of
which is able to rise to a position of absolute supremacy. Reflecting the di
versity of mores, manners, and customs of a nation, the competition be
tween these various principles and socia l interests se rves as an effective
break on intolerance, fanaticism, and extremism. The moderation prevail
ing in England and France reflects their social pluralism and is, in tum , the
outcome of a sound distribution and blending of powers.
Finally, as already mentioned, it is possible to relate the pluralism and
gentleness of moderate governments to the beneficial influence of commerce
on the political sphere. Because commerce is instrumental in promoting new
forms of communication and open ing up new channels and forms o f ex
change, it has a strong impact on the way in which power is exercised. As a
rule, commerce promotes gentle governments and tempers excessive politi
cal passio ns, such as ambicion and che desire for power and domination, by

100'1112011 1:31:.l3PLl j


o( Moderate GovC'rnmenl 65

channeling them into peaceful and benign activities that aim at materia l
gain and wealth rather than power and domination. III Commerce, Montes
quieu pointed out, is " a kind of lo m:ry" in which everyone loves (0 lake
pan in the hope of getting rich. Considerable wealth can be amassed or los[
wi thin a short span of time. and as a result social life comes to resemble a
Brownian movement sui generi$ in which people constantly rise and fall
along wit h the fortunes of the srock market. Public life is nOt immune to this
agitatio n, being inevita bly affected by rhe chro nic restlessness and dissipa
tion induced by commerce and its accompanying passions (restlessness, fri
volity, and vanity). Above all, Montesquieu argued, commerce helps cure
destructive prejudices, promotes gentle mores and moderation, and spreads
knowledge of the mores of all nali ons everywhere" (SL, XX: 1, 338). Where
commerce: is allowed to follow its course: unhindered, people cooperate with
each other more easily and acquaint themselves with new ways of life and
values. "The natural effect of commerce," Montesquieu famously argued,
"is to lead to peace .... The spirit of commerce produces in men a certain
feeli ng for exact justice" (St, XX: 2,339) encouraging people to take into
consideration one another's inte rests and adjust their interests. Moreover,
the moderating spi rit of commerCe brings with it nOt o nly new socia l dis
tinctions, but also fosters "the spirit of frugal ity, economy, moderation,
work , wisdom, n anquility, order, and rule" (S L, V: 6, 48).
All of these ideas ca n be found in the portrait of England's moderate gov
ernment drawn by Montesquieu in SL, a.s well as in his Pensies and Notes
su r l'AngleteTre. 1ll Fo r all his appreciation of the unwritten English consti
(Utio n and his sometimes-elegiac (one, Montesqu ieu's account of England
was, to use Michael Sonenscher's phrase, ustrikingly Janus-faced."Il Mon
tesq uieu stopped short of affirm ing thac the Engl ish political system was the
Itbest" existing political regime and noted (not without concern) that "in
o rder to favor liberty, the English have removed all the intermediary powers
that formed their monarchy."1Jj In reality, as several commentato rs ha ve re
marked, Montesquieu inserted a critica l note in his descriptions of each of
the regimes he deemed to be good (including that of England). U6 While he
believed that the english constilUtioTl protected political and indivi dual
frct:d om better than any othtr existing regime, he was nonetheless ambiva
lent towa rd several aspects of English politics and the EngliSh way of life. In
his view, in order to understand the English politiCo'll system one must nor
limit oneself to examining its constitutional architecture, but must also
slUdy the ways in which liberty is connected to and affected by commerce
and the invisible: hand of the market . IJ 7
Montesquieu's depiction of English socia l life and mores in SL, XIX: 27
sheds additional light on his conception of moderate government and
should be rtad in con.junction with his famous anal ysis of the English un
wrinen constitutio n in SL, X I: 6. It reveil ls his mixed feelings ilhout the ex
treme consequences of the sovereignty of individua l will, whicb leads each
deilen eo cons ider him a "monarch" and a monad at the same time . Man



tesquieu perceptively grasped that the comme rcial way of life in England
made every individual value his independence according to his own tastes
and inclinations. English society, he noted, is a highly individualistic society
in which "all the passIOns are free ... hatred , envy, jealousy, and the ardor
for enriching and distinguishing oneself ... appear to their full extent " (SL,
XIX: 27,335). Voicing concern about the spi rit of "extreme liberty" in En
gland (SL, XI: 6, 166) that ensued from its commercial way of life, Momes
quieu questioned how secure politicallibeny was there. Although his refer
ence to the existence of a "delirium of liberry " might ~trike us as hyperbolic,
it cannot be d enied that MO!1tt!squiell was deeply con(.:crned about this as
pect of English society, especially in lighr o f hi s claim about the absence of
intermediary bodies in that country. In his Notes sllr I'A"gJeterr~, Montes
quieu noted (with a hint of sadness) that the English had not always been
worthy of their libeny, which [hey sometimes preferred to "sell" to their
kings. ua In a rather enigmatic passage from SL, Mo ntesq uieu affirmed that
people are not as free as they think even under moderate governments such
as England's, for liberty is constantly under the pressure o f the highly indi
vidualistic and competitive ethos of society. He praised the love of liberty
prevailing across the Channel, but also remarked that the F.nglish tended to
love their liberty "prodigiously," that is, immoderately and excessively. As a
recent commentator argu~d , " the prodigious love of liberty among the Eng
lish is in som~ measure alarming ( 0 Momesquieu, even potentially mon
strous, because it implies a possible violation of the order of nature, which
points to moderation rather than extr~mes .... Without resorting to 'politi
ca l moralism,' Montesquieu suggests that a constitution of liberty, in order
to endure over time, needs motives beyond fear and interest."1.l9
Montesquieu's reader should not be su rprised then by hi .~ warning thilt
the English have the potential to become one of the most enslaved peoples
on ea rth if they take liberty to extremes . The political sy~ t em of England,
Montesqui eu claimed, "will perish when legislative power is more corrupt
than executive power" (SL, Xl: 6, 166). His reserva ti ons were meant to
sound a ca utionary note about the dangers facing a regime that combines
the "separation" of powers with a spirit of unbridled self-interest and ex
treme individualism anc.lliberty.1t is no mere coincidence that Montesquieu
also criticiud the "frenzy of liberty" (SL, XI: 16, 176) that characterized
political life at a certain stage of the Roman republic, and he believed that
the spirit of extreme liberty was one of the mou important caus~s of the
decline of the Roman republic.

He lvetius' Warning
Helvetius is credited with ha ving once sa id that the beSt way TO recognize a
fool is to meet someone who claims to understand Montesquieu well. His
witty words remain as va lid toda y as in his time. Not surprising.iy, aCrer fin



ArchilCClure of Modc{afC Govcrnmelll


ishing SL, the reader can hardly avoid the imptcs.sioll that moderation re
mains an elusive concept in Montesquieu's writings, in which it is related to
a Iheory of prudence, juste mesure, and poli tical judgment. With ideas and
truths of a certain kind . Monresquieu oace said, "i t is not enough to make
chern appea r convincing: one must a lso make them feh ... ..to One such idea is
political moderation.
In praising the laner, Montesquieu put forwa rd a complex, normative
agenda [hat gained him many prominent admirers in Europe and America,
from Catherine the Great of Russia and Frederick the Great of Prussia to
James Madiso n and Alexander Hamilton in the New World. I ' The pre
scr iptive side of M ontesquieu's ideas comes to the fo re, for exam ple, in his
ana lysis of the relationship between moderation and pluralism when de
scribing the benefits of commerce. Montesquieu constantly moved from
what " is" 10 what "should be," using moderalion as an important rhetorical
weapon in his critique of despotic regimes. In so doing, he fo llowed a nu r
mative route in a remarkably prudent way, avoiding the sometimes-radical
tone of his English fo rerun ners, such as Hobbes and Locke.1-I2 Far from
being a relativist, Momesquieu believed in the existence of a few " fu nda
mental" principles, but he insisted that the latter, va luable as they may be,
cannot and should not be applied unifurmly and everywhere, without pay
ing due considera tion to the social and po litical condition o( each country.
It is revealing chac Montesquieu even refused to view the principles of mod
erate government-in particula r the se paration and the ba lance of pow
ers-as universally applicable. These principles, he insisted , must not be
treated as apodictic axioms even though they are important conditions of

Montesquieu's ambition did not limit itself 10 contributing [0 the educa

cion of modern legislators and ci ti zens. Compa ring himself to a painter sui
gelleris, he wanted to o ffer a new science o f po litics that combined the old
with the new in an o rigi nal symhesis. '-H This helps explain his emphasis on
history and precedent as well as his wa rning agai nst all forms o( political
ana,hronism. ' J He sought a Ilia media between the political thought o f
Aristotle and Cicero, centered on the notions of civic virtue and political
participa tioll, and on modern theories of power, sovereignty. and tights. His
search for a middle ground between these competi ng conceptions of politics
was informed and motivated by his skepticism toward Strong foundational
principles in politics such as natural righ t. Not su rpri singly) the political
sphere retained pride of place in Monccsquieu's system even it" he spent a lor
of time discussing the influence of non-political factors upon the spi rit of
the laws.
Thus, in his works, moderate government becomes a synonym (or a weJ\
ordered and balanced pluralist ~ystem whose equipoise results fro m the
imeraction becween various groups, powers , and interests in society.
Equally important, Montesquieu's writings demonstrate ho w classical pr~
occupations wich che moral virtue of moderation become institutionalized

C!VJtu.O'IOb 67



and operationa lized in a particular system of government, the ca refully

ha rmonized soul of the ind ividual being mirrored by a fin ely tuned and
ca refull y-ba lanced equilibrium of institutional powers and forces. That is
why to argue that for Montesquieu, moderation was "a maner of luck
rather than good iudgmenr," as one of his recent interpreters claims, does
not render full ju stice to hi s ou clook. ' ~' One of Montesquieu's most impor
lant lessons i~ that, if properly channeled into adequa te instituti ons and
laws, the dissonances and divisions for:l free society may, in fa ct,contribute
to its strength and increase rather than diminish its internal capacity for
~elf- co rre c ti on. Yet, to ac hieve thi ~ sub tl e alchemy of powers and interests,
much more is needed than mere luck. Moderate gove rnment is a real politi
cal ma sterpiece that requires limiting, separating, ba lancing, and combining
powers, and adjusting the laws and the insti tutions to suit the customs and
mores of each country.
Montesquieu's theo ry of poli tica l moderation and pluralism had a major
influ ence on Madison and Hamilton and became ill central tenet of all sub
.sequent theories of moderan: Bovernment. A few decades later, the French
monarchiens tried to create a new constitution fo r Franct incorporat ing
many of Monresquieu's ideas . Their fascinating story will be the subj ect of
the next cha pter.

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