4. The Division of Powers- Montesquieu
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4. The Division of Powers- Montesquieu

October 8, 2019


Prof: Okay,
I have a lot to talk about today, and we move one century,
and we move into another culture.
Both are very important.
We move from seventeenth
century England to eighteenth century France.
We move from a situation which
was dominated by civil war, chaos and a yearning for a
clear sovereign, and we move in a century,
you can call it of Enlightenment–
that’s where the term Enlightenment comes from,
the French context–and a century of decadence.
Eventually it leads to a
revolution, but before the revolution there is a lot of
fairly juicy decadence. So two different epochs and two
different cultures. British individualism:
Hobbes and Locke were methodological individualists.
They thought the analysis
should start always with the individual.
You remember Hobbes–individual
drives and fears–and then he builds up that society is
starting always from the individual.
Not the French.
The French are methodological
collectivists. They believe there is such a
thing as society which is more than the sum total of the
individuals, and somehow they know how to grasp it.
So these are the changes,
what you will see today, Thursday and next Tuesday,
when we will be discussing Montesquieu and Jean Jacques
Rousseau, before we return to British
individualism, Adam Smith and John Stuart Mill.
Don’t ask me why this
difference between the two cultures, but there is a lasting
difference. Today’s topic is Montesquieu,
and I have a lot of fun stories to tell,
but I’ll try to limit my anecdotes so I can focus enough
on the text and do not run out of time by the end.
Okay, so that was Montesquieu.
He was born as Charles-Louis de
Secondat, Baron de La Brède–was born in 1689
near Bordeaux. His father was from a noble
family, but because he was a younger son he had to become a
mercenary, and, in fact, he was fighting Turks
in Hungary. He received a law degree
nevertheless, from the University of
Bordeaux, and in 1715 he did what many aristocrats did;
he married a wealthy woman, Jeanne de Lartigue,
which was helpful for him because he was not all that very
wealthy, though he was a nobleman.
His uncle was Baron de
Montesquieu, and when he passed away
Charles-Louis received his title,
he became Montesquieu, and inherited his office,
the presidency of the Parliament of Bordeaux.
Don’t think about it,
it was not a very big deal and certainly did not offer income
for a luxurious life– was not particularly affluent
stuff and was not particularly powerful stuff.
Now a bit about the times.
Well here it is,
Louis XIV, the heights of French absolutism.
Well he was called the Sun King.
And here is his emblem, the sun;
he’s shining like the sun. Well he actually
claimed–that’s a famous sentence,
and important to understand Montesquieu–
“L’état c’est moi,”
I am the state. Well it was kind of an
over-statement–not quite. He pretended to be more
powerful than he actually was. The French absolutism did show
already cracks, and the bourgeoisie was
becoming already quite powerful under the times of Louis XIV.
But he had the notion of French
gloire, the glory, and he built this
wonderful Palace of Versailles, showing what gloire or
glory is. President de Gaulle also
emphasized the French gloire.
The French are very fond of it.
Okay, the eighteenth century
was the Century of Enlightenment,
called de Siècle of Lumière;
lumière means the light.
Well it was Descartes who
transformed philosophy towards the cold view,
cold look of reason–and that was the one which was spreading
in eighteenth century England– culminating in the 1789
revolution. And we see two major steps in
this direction: Montesquieu and Rousseau.
Well one of the major
accomplishment of the Enlightenment were the
publications of Encyclopédie–
the sort of predecessor of Encyclopedia Britannica–
Diderot and d’Alembert edited, and which put together
rationalistic scholarship of their time.
Well here you have the First
Edition of Encyclopédie.
Well as Louis XIV passed away,
his five-year-old great-grandson,
Louis XV, became the king and ruled for a very long time.
Well the decade of absolutism
and royal authority continued, and we are really entering now,
with 1715, one–probably the longest in
modern history– the longest epoch of decadence
and sexual permissiveness. It’s an interesting kind
of–seemed to recur in human history, right?
Then you had a similar kind of
permissiveness and sort of decadence–1890s until 1914;
probably 1930. And then the 1960s,
of course, when everything goes.
Well this was a time of this
kind. Well he was not particularly
interested in governing, but he was very interested in
beautiful women. Well he was quite a good
looking guy when he was young, as well.
So I’m sure women were quite
interested in him too. And you know the name;
Madame Pompadour was the most famous and most influential of
his mistresses. As I said, it was becoming a
time of sexual permissiveness, promiscuity pretty
widespread–also affected Montesquieu.
Here is Madame Pompadour,
indeed a very beautiful person. But not only beautiful;
she was extremely smart as well, as far as we can tell.
She was an intellectual of very
distinguished taste. She knew all people of the
Enlightenment; Voltaire, one of the big
troublemakers of his time. She supported Diderot and the
project of Encyclopédie,
which was unusual because royal authority did not really like
this one. Well let me just give you a
little ethnography, if you are interested:
Des Liaisons Dangereuses.
Pierre Chordelos de Laclos
wrote a novel about the sexual mores of this time,
which is called The Dangerous Relationships,
Les Liaisons Dangereuses. Well there was two movies made
of it. And anybody watched any of
these movies? Nobody watched it.
Wonderful movie.
Well there are two versions:
one by Roger Vadim, and that puts the whole story
in French society of its time. And the other one is an
American one: Stephen Frears,
and it is Glenn Close who features in it.
Well this is the Pierre Vadim
movie. You can borrow it;
do, you will have fun, and you will have an
understanding what mid-eighteenth century in France
was, and where Montesquieu and
Rousseau are coming from. And, of course,
this is the American version with Glenn Close.
She is already “rah”,
the person what she likes to play: the vicious woman.
Okay.
Now Montesquieu,
well he lives in the century of Enlightenment and
promiscuousness. He sells his office;
though I mean he lives from the wealth of his wife.
Starts a wine business,
but then he leaves the wine business to the wife and he’s
beginning to travel in Europe and in England.
Then when he returns,
he settles in Paris, leaves the wife back to run the
wine business, and he’s beginning to write.
He writes, publishes in 1721
already the Persian Letters–
I talked about this before–and then he was elected on the basis
of this to Académie Française,
the French Academy of Sciences and Art–
a very big accomplishment at this very early age.
And finally,
1748, he publishes the major book.
This is really a very important
book. I hope you did what I asked,
you glanced at it. Not an easy read–a bit drier
than some of the texts we read, but very important,
fundamentally important stuff. Diderot asks him to write
something for the Encyclopédie about
democracy. But he’s bored with the
question of democracy–he wrote enough about this–so he writes
an article on taste. Okay, and he died in 1755 in
Paris. So these are the times,
and this is your author, Montesquieu.
Now let me move on to the work.

Yes, so here we go:
The Spirit of the Laws. And here is the First Edition.
So what is this book?
The first part is law in
general and different modes of governance–interesting,
not path-breaking. This is not what he will be
remembered for, though, I mean,
he is opening some very important subject matters.
The second one is law and
politics, and separation of powers.
We will see he builds on Locke
and takes Locke in a big way forward–a great improvement in
many–to the extent there is improvement.
Of course, Locke has some
insight which is missing from the Montesquieuian formulation
of separation of powers. Then he has this extraordinary
section on law and climate. This is one of his big
contributions. I will show you the way how he
formulated it is extremely naïve, almost borders on
the ridiculous. But, given the twenty-first
century, there are very few people,
with the exception of Ibn Khaldun–
whom I named already in the introductory lecture–
who was so sensitive that society lives in this globe,
and how society is formed and structured,
and how its laws are being shaped is actually greatly
influenced by the nature of environmental and climactic
conditions. So he is the first ecologist he
is the first environmentalist who understand the interaction
between social organizations– mores, ethics,
ideas–and society. And then there is a bit on law
and commerce. I will very briefly talk about
this, law and religion, and I will skip this section
all together; and law and history I’ll also
skip. So what are the main themes?
First, you know,
will be about classification of governments.
Then I will talk about
separation of powers, and then environment.
Law and social structure,
right–these are the issues we will be rushing through.
There’s a lot of stuff to look
at. Well before Montesquieu,
the question when they classified government was who
rules, who is the sovereign? Montesquieu changes somewhat
the discourse. He is interested in the manner
of governments, how people who are in authority
rule; the real basic distinction,
whether a government is moderate or whether it is
despotic. Well, what are the questions
when you try to judge the nature of a government?
One important question he said
you should ask: Are the various powers
separated or not? Irrespective who rules–whether
it can be a king, it can be an elected president,
it can be a prime minister– the question is:
Are the powers separated? And the next question is–this
is very important–why do people obey?
The question why people obey
orders is touched upon by Hobbes and Locke, but it’s not really
elaborated. This is the issue what they
will call the question of legitimacy.
Right?
What are the principles of why
they obey orders? And we will see much later in
this course that it will be Max Weber who elaborates on this
issue at great lengths. And then the next question is
okay, is the ruler an individual or is this an institution?
You see, this is all very
interesting enrichment of the idea what the nature of
governments are. He himself supports a
constitutional monarchy. He supports a monarchy in which
there is a king or queen, but a king and queen which
operates on the rule of law; that’s what constitutional
monarchy is. The second major theme is
separation of powers. I’m still elaborating what will
come. Well you have read Locke
distinguished between legislative, executive and
federative branches of government.
Montesquieu distinguishes
between legislative, executive and juridical.
Well this is the one which has
been so influential on the American Constitution
what we all believe now in this country–
that these are the three branches which should be
separated; though, of course,
the federative remains to be an interesting issue.
Who should exercise federative
powers, the powers of war? Should it, the legislature,
or should it be at the executive branch,
as such? Well Montesquieu suggests that
the three powers will have to be separated.
The legislative power–and this
is a departure from Hobbes and Locke–should be by elected
representatives. And then he makes an important
new contribution. He said the right of minorities
should be respected. Though he kind of foreshadows
something like universal voting, though he is not quite explicit
about this, but you can read into it.
But then he said the minority’s
rights should be reserved. And he said,
well the legislative power cannot and should not be held by
the monarchs, but it has to be limited;
there must be a limitation on legislative powers.
And the executive will exercise
checks over the legislature– and we will again talk about
this in more detail– but there must be some checks
and balances over the executive branch as well.
Well it comes,
you know, who controls what? He puts more emphasis on the
executive limiting the legislatives than the other way
around. But we will see what the
arguments are and what the rationale for this is,
and how this affects, for instance,
the functioning of the U.S. government today.
I think it is not all that far
away for the blueprint Montesquieu established way back
in the mid-eighteenth century. And then the last issue will be
environment–how social conditions are shaped by
environmental conditions. But he said,
but there is also a general spirit, a spirit which is above
the individuals. And this is a very French
theme, right? You cannot explain it from the
individual; there is some general idea.
Durkheim will call it
collective conscience; Rousseau will call it the
general will. Right?
The very French idea that there
is some consciousness above the individual consciousnesses–
this has formulated so powerfully the first time by
Montesquieu. And he actually said as
civilization is progressing, the influence of the natural
conditions declines, and the importance of general
spirits increases. Or to put it with Durkheim,
the collective conscience becomes more and more important.
I’ll just foreshadow,
that you have a sense that this course really hangs together.
Right?
We are not talking about
separate authors; we are talking about a set of
authors who are talking to each other, debating each other.
Right?
That’s, I think,
what is so fascinating about the foundations of modern social
thought. That cannot be said about
twenty or twenty-first century social theorizing,
where we are at each other’s throats and we ignore each
other. Right?
That’s more typical.
Okay, as I said,
he’s a methodological collectivist.
Right?
And I just explained this to
you a little, right?
A methodological individualist
who begins–in order to develop a conception of society,
you have to start with the individual;
the only reality, what you can observe in
individual action and individual consciousness.
Everything else,
what you suggest, is speculative.
Right?
This is British individualism
and empiricism. Right?
The French emphasizes there are
stuff, like law. This is why the legal system,
the law, is so important for Montesquieu.
That’s why the major book is
called The Spirit of Law because the law is not
simply a sum total of individual consciousness.
It stands over us,
and we get into a society and the law, the legal system
already does exist. We will see Durkheim does the
same thing; this is why the legal system is
so important for him. Okay, now let’s move into the
first theme and talk about the different forms of government.
Well he makes a distinction
between republican government, monarchy, and despotic state.
Republican government,
in his definition, means that either the people
rule–democracy, or a subset of people.
Right?
Aristocracy has the sovereign
power–are the source of law. As we will see,
he is not all that certain whether the people rule is all
that good. Right?
He prefers sort of selected
aristocracy. It will be even true for
Rousseau; he’s much more radical than he
is. Monarchy, in which one alone
governs, but by fundamental laws.
The monarchy itself is bound by
laws. A despotic state,
there are no fundamental rules. Right?
A despot exercises its power at
its will. Adolph Hitler’s Germany,
or Stalin’s Russia or Soviet Union, are despotic states where
there is no proper rule of law. Now about the republic.
Well, as we said,
there are two forms of it: the democratic and then the
aristocratic one. In the democratic,
you have a selection of people to office by lot.
Well he’s not talking about
elections, but by lot. And indeed, in Greek
democracies, people were occasionally selected to major
offices in Ancient Greece by lot, by a lottery.
In aristocracy,
people are selected by choice. Right?
The best people get into the
office where they have the best skills to perform.
Well he said,
well everyone can vote, but not everybody’s prepared to
serve in the office. That speaks for aristocracy by
choice. But whatever the republic is,
there is a principle: legitimacy is based on virtue.
The person who serves should be
virtuous. Right?
And if the virtuousness of the
person is questioned then, you know, the legitimacy of the
person is in some trouble; verbally, the virtuousness.
Remember Bill Clinton?
He ran into some trouble,
you know, because people started to question his
virtuousness in the very narrow sense of the term.
Okay, anyway that’s the guiding
principle. Then monarchy.
Well here the prince has a
sovereign power–is the source of law.
But once the law is
established, the prince has to follow that law.
That’s monarchy.
And the principle here is honor.
The prince has to be honorable,
in order to be obeyed. Again, the basis of legitimacy
is honor. And despotism,
as we have seen, the one who governs can do
whatever it wants to do, is above the law.
Right?
And what is the principle of
despotic rule? Fear, right?
You obey those in power because
you fear them. Well the next theme is
separation of power. And we see the three powers.
Well there are the legislative
power, executive power,
and we will see, the power to judge later on–
executive power over things, depending on the right of
nations; executive power over things,
depending on civil rights. He said the first power,
legislative power, in fact, can be exercised by a
king or a magistrate; it can be exercised by even an
elected body. But the second one,
executive power, well it has to be executed,
he believed, usually by a monarch.
And there is the last power,
the power of judging, which has to be separated from
both the legislative and executive power.
Let’s see the argument,
what he puts forward. He said when the legislative
power is united with the executive power in a single
person, there is no liberty because one
can fear that the same monarch who makes tyrannical rules will
execute them in a tyrannical manner.
So therefore you have to
separate legislative and executive powers.
Well this separation is not
complete, because it takes time for the
legislative body to pass laws, and therefore very often
executives, even in the United States,
operate with executive orders. Right?
These executive orders kind of
substitute for laws or legal regulations.
So the separation,
even in a modern society like a United States,
is relative. And, in fact,
many constitutional lawyers in the United States were concerned
during the last two administrations that the
executive branch too often operated by executive orders,
rather than to ask the legislature to legislate about
those things. Okay.
Now then he goes on and he
said, look, this is not really a question of republic versus
monarchy. He said, look–in his times–in
most kingdoms of Europe the government is quite moderate.
He said, well the prince who
exercises the first two powers, well leaves a great deal of
autonomy for its subjects. In the Italian republics–they
are republics of his time, eighteenth century–the powers
are united and there is less liberty actually in these
Italian republics. Well it’s an interesting point.
Now about the legislative power.
He said, well it’s better to be
an elected body which exercises the legislative power,
passes the laws, and–we come close to the idea
of universal suffrage– in choosing the representative,
all citizens should have the right to vote–
and then comes the qualification–except whose
estate is so humble that they are deemed to have no will of
their own. In order to have a will you
better be a property owner. Right?
There is a suggestion here of
property qualification which was quite dominant in the United
States until the twentieth century.
Right?
But, on the other hand,
he elaborates on it, people should not enter
government, except to choose their
representatives because in order to be in the executive,
you need skills. Well you may know who could be
the right person to run the office, but you may not be able
to run the office. Right?
That’s the fundamental idea.
Well it’s also important that
this representative body, the legislature,
should be separated from actual action.
Now comes the idea,
the right of minority. This is a novel idea,
cast in a very conservative way.
But though it is cast in a
conservative, kind of feudal aristocratic
manner– an aristocrat is speaking–he’s
formulating a very important principle that we are still
struggling with: how to defend the rights of
minorities against a despotism of the majority?
Just because 51% voted one way
does not mean that 49% is wrong. Right?
And the rights of that 49%,
or even just 1%, in some ways has to be
guaranteed, and that’s what he’s struggling with.
Now here in this context–and
we’ll put the citation on the Web;
so I don’t want to read this very long citation–the argument
is for the nobility. He said, well the nobility has
more rights and therefore if they have more rights,
more stakes in it, they have more than one voice.
Therefore the solution is a two
chamber solution: a chamber for the aristocrats,
an upper house, and a chamber popularly elected
by everyone, a lower house–well not in the
aristocratic sense, but in some ways representing
the defense of small states, and agrarian states.
This is why the Unites States
Senate, every state sends two senators rather–irrespective of
the size of the population. Right?
And therefore,
though not in a sort of feudalistic way,
as Montesquieu meant it, but it is- the whole
proposition is very much alive in our current political
practices. Okay, let me then move on and
talk about the executive power. Well the executive power should
be stable– that’s why he believes it
better be in the hands of a monarch–
because the government needs immediate action.
It cannot leave to a messy
congress to debate things all the time.
The government has to act
instantly, and therefore it has to be in one hand.
Well he elaborates a number of
limits of legislative power. Some of it applies to the
United States; others don’t,
but may apply to Western democracies.
It should convene at regular
intervals, and that’s quite true for all
democratic states, the legislature is called very
often and with some regularity. Well it should not be in
session without interruption. The U.S. Congress is
virtually in session almost without interruption.
But other parliaments in
Continental Europe are not necessarily so.
The reason is that they don’t
want to make membership in the legislature the sole source of
occupation and income– and there are things which
speaks for this idea, that the legislature is not in
permanent session. And then he said it should not
have the right to convene itself.
Well the U.S. Congress
convenes itself, it doesn’t need the call of the
executive. But in England,
for instance, it is the queen who dissolves
the parliament and calls the session of the parliament.
Doesn’t give her much power,
but nevertheless the idea, the Montesquieuian idea,
is present in a number of Western democracies.
Now regular intervals;
that’s obvious, right?
It should not be left to the
executive, especially the executive has the right to call
into session the legislature. Right?
That may mean the executive
will not call when new laws are needed and will become despotic.
That’s why it has to be called
by regular intervals. Now and it should not be in
session without interruption because he said it would
overburden the executive power as well.
And it cannot convene itself,
he said– and the arguments are
known–because if it would have the right to decide whether it
dissolves itself, it will never dissolve itself;
that’s the fundamental argument here.
As I said, in many countries
this is exercised his way. Now the executive,
he said, should be able to check over the legislature.
And in what way?
Because it doesn’t want the
legislature to paralyze the action of the government.
And the main way how the
executive exercises checks over the legislature is the veto
right of the executive; exactly like it is done in the
U.S. Constitution, right?
The President can veto laws
which are passed by Congress, has to send back to Congress,
and the Congress has to overrule the veto of the
President. There is a clear check of the
executive over the legislature. Right?
The executive has the
possibility to remind the legislature, this may be a bad
idea to pass this law; you better rethink it before it
becomes a law. Well checks and balances over
the executive branch. He is quite a conservative here.
He said the executive power
belongs to the legislative, only through its faculty of
vetoing. The executive power–it’s very
important–enacts the rising of public funds only with the
consent of legislature. This is again a very important
principle ruling all democracies–that the budgets
have to be approved by the legislature.
Just see the mess what we have
seen in California recently, where the legislature was not
giving the budget to the governor.
But this is certainly a very
important principle of democracy.
And now let me come to the
question of environment and society, and the whole idea that
the physical conditions shape social conditions.
And let me give you a couple
of, as I said, quite silly notes.
He said that “spirit and
passion are extremely different in various climates,
laws should be relative to the differences in these
passions.” And now comes the real silly
one. “In cold climate,
the blood is pushed harder forward the heart.
This produces confidence in
oneself, and courage, and better knowledge.”
So you are more courageous,
more active and smarter if you live in cold climates,
like in France or in England. People in hot countries are
“timid, like old men.” I’m not all that timid. Okay.
And then interestingly,
you know, to sort of distance himself from racism–
and that’s a term which did not exist in his time–
he said even the children of Europeans born inside the Indies
lose the courage of the European climate.
Well, at least it is not based
on a racial argument, but indeed based on an
extremely naïve ecological argument.
But let me emphasize,
there is fantastic insight here, right?
For another 200,
nobody took the environment seriously;
I mean, with the exception of Émile Durkheim.
We will talk about this when we
talk about Durkheim, coming from Montesquieu.
For Durkheim,
Montesquieu and Rousseau were the gods.
Right?
That’s where modern theory of
society came from. It was Montesquieu and
Rousseau, both of them. So, and now about the
“general spirit.” He said, well many things
govern man: climate, religion, laws,
the maxims of government, mores and manners–there is
this all adds together, a general spirit,
which is formed as a result. Right?
I hope you get the idea of the
general spirit that there is a set of ideas which is above our
individual consciousness. In childhood we learn,
we internalize those ideas. It is not coming from the
individual; it is entering the individual
in the process of education. Right?
And therefore,
the argument what Montesquieu makes,
repeated by Rousseau and Durkheim, that we can have,
and should have, an idea of society or
collective consciousness extending over and above the
individual. This is a big debate which
informs most of the debates in social sciences today.
In economics,
in political science, in sociology,
in anthropology, you have some scholars who
regard themselves– in an economics
few–methodological collectivists and those who call
themselves methodological individualists;
rational choice people are the methodological individualists.
The cultural analysts are
methodological collectivists, right?
We have that distinction
virtually everywhere; as I said, the least in
economics. But even in economics you have
the institutionalists who are on the edge of between being
methodological collectivists or being methodological
individualists. And then well he says as
civilization unfolds, the importance of the general
spirit is increasing and the impact of climate is declining.
Not that climate doesn’t
matter, but over time its importance declines and the
importance of general experience increases.
Well that’s about it for today.
Thank you.

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