A Virtue for Courageous Minds Moderation

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TW

THE ARCHITECTURE

OF MODERATE

GOVERNMENT

Montesquieu's Science

of

the Legislator

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

-Momesquie

u

T he H ig hes{ Virtue

"I have written this work only to provt! it : the spirit of moderation should

be that

of

the legislator," writes Montesquicu at the begin ning

of

Book

XXIX

of The Spir;t of the Laws

(1748) ,1The faCt that this claim is made

t

owa

rd the end of the

wo

rk is surprising. Why did Montesquieu

wait

so

long to argue that moderation is rhe key vinue

of

a ll legislators? Might this

he the secret

c

ha in that links IOgc rh er a ll rhe major themes

of

his difficuh

masterpiece?

To

he

sure, as the defining characteristic

of

(ree governments, moderation

is a seminal theme in Montesquieu's political works. All

of

hi s views on law,

and I i ~ r t y c o a l e s c ~ around the concept of political moderation,l

centra lity

of

the

l a t t ~ r

to

u i e u

thought has been underscored by

many of his but it is nOl clear what exactly he meant by this

surprising

ly

elusive con cep

t. In

his

in

itial

di

scussion

of

the nature

and

prin

ciples of moderate governmencs, he was surprisingly coy and prudent in

,,(firming the prioriry

of

moderation.) Mo reover. while the issue

of

modera

ri

on undergi rds his critique o f despotism in the

Persian tucrs

it

is

only in

The Spirit

of

t

he

Laws

(henceforth abbreviated

SL)

that Monresquieu's cr

i-

tique

of

despotic governments is developed into a fu U-lledged normative

agenda in praise of political moderat io n and institutional complexiry,4The

epigraph

of

the latter-Pro/em si'IC ma

rr

e 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 d

e sc

rine, somerimcs in painstaking detail, the in stitutio nal

and

consti tutional architecture::

of

m o d e r a t political r ~ g i m e Montesquieu

drew a seminal relationship between moderation, limited powe

r, che

separa

tion

of

powers,

and

the rule of law,

an

d he made the

of

po litica l

moderation the keyston e

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

a n o n

ymous

ve

rsions, had appeared by the end

of

1749 in (our coum

rie

s.

J

o

t e s q u i ~ u ' s S was described as the code of reason and liberty,'" the

t rium ph

of

humanity, the mam:rpiece

of

gen iu s, the Bible o f a ll politicians."

7

Fully a w a r ~

of

the importance

of

style and taste::, Montesquieu paid special

attention to the lite::rary aspect of his composition, whose complex structure::

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3-4 • Tw o

points to the exisrtnce of a sophisticated plan (perhaps

ad sum delphi,,;)

requiring special hermeneutical skills.· Momesquieu

's

esoteric tone and

el

liptic

al

style make liberal use of mys terious 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 count

ry

whatsoeve

r,

he

reo

marked in the preface of

SL. Ea

ch nation

will

find here the reasons for

its

maxims.

A few lin

es

later, howev

er, 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

di

sc

u

ss

in

g the intricacies

of French leudal laws, at ot her times

he

presents

his

ide as

in

surp risingly

short sentences, full

ol

hidden mea nin

gs

and erudite allusions.

The book

disp:Jays

an order that gracefu lly and gradually

in

sinuates it

se

lf

into the aud

ie

nce'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

inco

mpleteness of so

me

of his ide

as is

therefore

deliberate. meant to constantly engage and stim ulate the cur

io

sity

of

his

readers. He directs tbeir anent

io

n

in

a highl y choreograp hed way, ever

aware that

o

ne must nor always so ex

ha

ust a subject tbat one leaves noth·

ing (o r the reader to

do

.

1r is

not a ques

ti

on of making him read but of mak-

ing him think

. u

At regular intervals. Montesquieu , a master of surpr

ise

and contrasts, add resses a rem inder to

hi

s readers, urging them to remain

cur

io

us and alert until the

ve

ry end of the book. in spite of the pletho ra of

idea5 and histo rical details he present

s.

His sophisticated styl e, the complex

organization of the book, and his own digress ions are an invitation to pa -

tient and slow reading which leaves it up to the readers to supply the

mi

ss-

ing lin

ks

between ideas and decipher the true me ssage o f the book. J He had

to give voice to important tfuths whose direct enuncia

ti

on might ha

ve

of-

fended influential perSO

ns

in positions of author

ity

, and 50 Mont

es

quieu

prud

en tl

y veiled them from those to whom t

hey

would have been harm·

ful, without however Jetting them be lost for th e wi

se

....

' 4

This prudent

cons

id

eration, along with Montesquicu's inter

es

t

in

style, explains the pe cu-

liar strategy and rhetoric wh ereby he encourages his audience to discover

the princip

les of

liberty

as in a m;

o,

and

go

beyond appearances in

order to comprehend the nuances of things

}

and discover fo r themselves

the underlying meaning

s.

Fully awa re o( the difficulry

of

his book, Montesquieu believed that on

ly

a holistic reading would enable

hi

s readers to

fo ll

ow the development and

interdependence of its major th

em

e....

In the preface to

SL he

wro

te

: I ask a

f vor

that I fear will not

be

granted; it

is

that one not judge by a moment's

readi ng t

he

work of twenty

ye

ars , that one approve

or

conde

mn

t

he

book as

a

who

le and not some few sentenc

es. If

wants to

sec

k the des

ign of

t

he

autho

r,

one can

find

it o

nl

y

in

the design of the wo

rk

.

Many

of th

e truths

wi

lJ make themselves felt here on

ly

when o

ne

sees the chain connecting

ch

ern with others. 1 Much ink

ha

s flow

ed

on this enigmat

ic p h o r

~

n d b ~


3/36

Ar

chitL

C{ure

o Mod

e

rate

G

ov

ernment •

35

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

in

mind freedom

or

virtue, as some commentators claimed,

7

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 l s

fumieres .

I

This

in

itself was no minor task, given the politi-

c

al

comext

in

which Montesquieu wrote .

That is

why Montesquieu's writ-

ill sryl

e 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

[

better understand Montesquieu 's conCep·

tual framework and po litical

vi

sion at the heart of which li

es

the concept

of

political moderatio

n.

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:

1,60

2). This seminal

claim is foreshadowed, however,

by

a number of hinrs found 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 condition, 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-

tremely wi se 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

normati

ve

claims

or

factual state-

ments, sin

ce

the line that

sepautes

them is difficult to draw. Momesquieu's

belief in the power

of

moderation a difficult

:and

rare r t u ~ u s t be re-

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36

• Two

lated 0 his claim that moderation corresponds to the

nature

of things

anJ has

an

on lological 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

l ~ r a mere work

of

nature, but

is

in-

stead the outcome of 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-

~ i v

virtue

of

well-ordered souls

(a

prominent theme

in

classical p

ol

itic

al

philosophy, beginning with Plato), but as all essential feature of a certain

typ '

of government, tbat is, a moder te g O I J ~ r n m ~ m In his view, modera

ti

on 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, thu s ensuring the harmonious coexistence

of

various inte rests and

classes

in

society.

As

a result, moderation comprised a complex web of in

lerrt:lated dements with constitutional, penal, fiscal, re

ligi

ou

s,

an d eth

ical

dimensions. all closely linked to one another.

Although moderation was presen ted as the outcome of a com plex institu

tional alchemy, its ethic l dimension was not absent from Montesquieu's

works. Describing moderation as a ca rdinal 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 Thus, moderat io n appears as

a

feature of "gentle" do

) regimes that avoid the extremes of cruelty and

suffering. Furth ermore, in th footSTeps o f Aristotle, Momesquicu drew a

close connection between modcration, pra ctical wisdom, and

op

posit ion to

extremes, advising

legi

slators and citiz

ens;

Do not go t

oo

far

to

the T

g

ht

.

..

do not go too far to the left ; stay between the

two

SL,

XXX ; to 62"1). On

this view, moderation becomes an expression of the discernment, prudence,

and common sense which, Monresq ll;eu insisted, should be the primary vir

lUes of all legislators.

M

ode

rati

on

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, th

is

connec tion in Montesquieu's

work

has

a complex and interesting genealogy. In particula r, MontesQuieu's interpre

tati

on of

the

doubl

e majesty" of the Roman empero rs a nd

of

the obscure

o rigins of the ancient government of the Germans a llowed him to account

for the gradual emergence of moderate governments

in

which the king had

the right

to po

wer but

not

the right to judge, that being reserved

to

interme

diary bodies,u

l

OJ

llfZ(In

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Archi(ttture of

Mode

rale Govern

ment

•

J

7

Ahhough Montesquieu was relucunt

to

refer to the best form

of

gov

ernment in general, he made a rather surprising claim after discussing the

constitutio n 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 (tht common people were slaves, Momesquieu

rem arked), this reg ime which had existed

in

some parts of Western Europe

was a good government which had the capacity to cha

ng

e and improve over

ti

me:

Giv

in

g leners of emancipation became the

CUSlom

and soon the

civ

il

liberty of the people, the prerogatives of the nobility and of the

cle r

gy

and the power of the kings, were

in

such concert that there

has never been, 1 believe, a government on earth as we

ll

tempered

as that of each part of Europe during the time that this government

continued

to

exist; and

it

is

remark

ab

le that the co rru ption

of

the

government of a conq uering people should have formed the best

kind of governnu:m men havc

be

en able 1 devise SL, XI: 8,

167-68).

The use of thc superlative he re is striking because Montesquieu was noto

riously reluctant to make bold genera

li:t.ari

ons of this kind. Since h

is

ent hu

siasm for the Goth ic government Seems to bt at odds

wi

th his previous

c u t i o u ~ tone, it remains an open question whether or nOt it should be read

3S an expression of Montesquieu's ad miration

fo

r

mi

xed constitutions

based on : sound balance berween va

ri

ous groups and inttres

ts

in society_

Along with the English consti tu

ti

on, Corhic government became the

model for Montesquieu's theory of moderate government.

As Lee

Ward has

argued, Montesquieu explored the potentiality fo r moderate government

in

some combination of British and Gothic principles. l4 At the same time,

his

account of constimtionalism has many striking similarities with his de

sc

ript ion of t.he distribution of powers

in

anci ent Rome and must be inter

preted in light

of

Monresquieu's undem and

in

g

of

the main features of the

so-ca lled Gothic cons

ti

tution. The latter he

ld

sway over a loose ly con

nected feudal syStem, intermediate insrinltions. and territorially divided

powers between the center and the periphe.ry. Montesquieu admired the

complex interdepe.ndence

twccn

the power of the mona

rc

h, the privileges

of the nobles, the clergy and regional assemblies with overlapping jurisdic

tions. This was nOt on ly the ge

nius

of the ancient constitution of France, he

argued but al so of the Roman constitution. The la ws

of

Rome, Montes

quieu wrOte, had wisely

di

vi

ded public power among a large number

of

Ol

agislracies, which supported, checked) and tempered each other.

1J

An attentive reader of Roman histor ians, Monr esquieu traced the origins

of the

mi

xed consti tut ion back to tbe Roman republic and recommended

the stud y of Roman history to anyone interested

in

politics. Study the Ro

mans, he wrote;

~ { h e i r

superiority will n

ev

er

be

mo

re

evident than in the

C t l ~ i n o t l 37

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.18

• Two

choke

of

the circumstances in which they did good and ev

il

things.

16

Mon

tesquieu

m i u t ~ d

t h ~

f i s ~

of

Roman republic

to

its successful combina

tion

of

wel l-de

si

gned institu tions and civic virtue that allowed its Ci

li

uns to

li

ve in peace and prosperity at home and wage success

ful

wars abroad .

In

the early ~ t a g e s

of

the republic, Montesqu ieu remarked, the Romans were at

t h ~ same time

p r u d ~ n t

and audilcious, t e d and committed to the

common good; the mOH salient features

of

the ea rly its cit i-

zens ' love of liberty, haired

of ty

rann y, aud love of equa lit

y

As 11 mixture

between mon arch

ic

al , a

ris

tOc ratic, and popula r elements, the Roman gov

ernment evenrually achieved a sou nd harm ony of power (SL , X

l:

12, 172)

that

t ~ m p e r e d

p u t ~

e n v ~ e n

the classes. As a result, the of

Rome came to be based upon a judicio us

di

stribution of powe rs between

(he people, the and o ther magistracies which, alo ng with its sound

constitution, made

it

possible [ correc t or prevent abuses of power.

1

?

The

repu blic derived

iu

force

fr

om the civic virtue of its cit

iz

ens

and

from the

existence of sound institutions_

E.very

soldier was

at

the sa me rime a citizen

who had a stake in working f

or

maintaining the prosperity

of

the republ ic.

In

chapter IX

of

the

Considera

t

ons. Mo

ntesquieu attributed the decline

of the Roman repub lic to the corrupt ion

of

mores and the disappearance of

the bala nce of power that tipped alternativel y in

fa

vor

of

the people, the

patr

ici

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 a ll

si

des in order to ex plain

the progressive

co

rruption o( the Roman republic.» This argument was ex

panded in an important letter of Montesq uieu to William Domville (i n-

cl

uded in the

Penset s) .

Referring to the corrupti on o f the

pe

ople as a whole,

Mo

nresquieu

po

inted out that military tributes

and

the pillage

of

Rome's

enemies had the

lo

ng-term perverse effec

ts

of

creating a large

gap

between

rich and poo r that en

ded

up destroy

in

g the unity

of

the

Ci

fY

and

corrupting

the civic spi rit o f its citizens.

JO

A cursory look at what Montesquieu wrote in chapters VIII, IX, and

XI

of

the Considerations reveals an interesting rela tionship between the mixed

constitution and the concept

of

the balance

of

powers. It is not a mere coin·

cidence

that

he returned

Q

Cicero's o ld metaphor of the

sympl onia discors

and linked it

to

the metapho r

of

scale in orde r

to

describe a moderate

form of government in which the monarch

is

in the center

of

the scale, and

the intermediate

po

wers (the nobl

es and

the peopl e)

in

the balances. O n t

hi

s

view, what ktoeps a city together

and

constitutes its fo rce is

a

union in har

mony w

hi

ch 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 goo d

of

society, as disso

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Arc:n

ir

ec

tore o( Moderate Govu

nment

• 39

nances in music agree in the concord of the whole. Thus there can

be

unio

l in

a state where o

ne

would expect o

nl

y turbuleoce: that is

to say, a ha

rm

ony that g

ive

s birth to happiness, the only true peace .

t is liJce the

pans

of the universe itself, eternall y linked

by

the ac-

ti

on of so

me

and the reaction of others.l'

In th is wonderful passage remi

ni

scent of Cicero, MOlltcsquieu compares

the harmony of moderate government to the cosmic order and rhe ccortl of

celestial spheres. The un

de

rlying idea is that,

JUSt

as the 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 l

ity.

The political balance in the stat(:

ma nifes ts the harmony of the wor ld , and the intricate compl

ex

ity of moder-

ate governmenr reflecrs

harmonia mundi

b

ei

ng the outcome of the success·

ful Utem

pe

ri

ng of competing political powers and social interestsY

As

such, the essence of moderate government

lies

in its internal consonance

find discorda

nt

accord.

The use of Cicero

's

musical metaphor

in

the

Considerations

underscores

Montesquieu's intention to stress the internal complexity of 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

rm

ity of

despo

ti

c regimes

.)1

As

Na

nne

rl

Keohane

ha

s argued, Montesqu

ieu

under

st

ood quite well that creat ing a moderate government means delibera te ly

li

ft

ing a polity out of simpliciry, instituting a complexity of form where

there would othe rwise

be

pure domination. )./.While modcrate governments

are compl

ex

human art

ifices

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 political re-

g

ime

, one that demands special consideration.

One must resist the temptation of interpreting Montesquieu's aCCOunt of

moderate government as a mere endorsement of mixed (Gothic) govern-

ment, or as

an

accurate de

sc

ription of the English politica l

system

which

he

strongly admired. Almost none of o n t s q u

co

ntemporaries believed

th at he a

cc

urately depicted the reality of English poli tics as it was practiced

across the Channel during his t ime. Montesquicu was favorably disposed

toward moderate monarchy

i anglaise.

because in this regime laws reign

rather than the will of individuals (in the Aristotelian sense), and the au·

thority

of

the sovere

ign

is

effectivdy limited

by

inte

rm

ediary powers and

fundamental laws. Yet his admiration for England should not

be

inter-

preted an unqual ified

app

roval of the country's limited mona rchy, nor

must it

be

seen as an endorsement of a str

ic

t version of the separation of

o w ~ r s l J As M.J-C Vile remarked, it is no mere coincidence that, when

enumerating the forms of government at the beginning of SL, Mon tesquieu

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Architecwrt of Moderate Govtfnmt nt •

41

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 comp

le-

ment or o u t o m e 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

co

nceptual complexity of moderation . No word has received

more different interpretations and

ha

s 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 one-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 n t e x t s

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 socie ty where there are laws,liberry

can 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 p o l i t i c a l l i ~ r r y The first (philosophical) consists in the

exercise of one's will, while the second (political) consists io security or, at

lea st, in the opinion one has of onc 's security SL, XU: 2, 188). On this

v

ie

w, 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

sec

uriry; the rule of law; free competition for power; the economic

f r ~ d o m

to pursue one's imcrtsts unhindered; and the freedom of individual will.

Nonr theless, for Momcsquieu none of 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

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42

•

Two

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

fo r Locke. the democrat

ic

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 e defined in connection

with the

manner

in

which authority is exercised and depends on a complex

alchemy of powers and a

se

t of political institutionsj it exists only when

power is not a

bu

sed and is properly limited by constitutional devices , cus

toms, or religion. In other words, liberty is the mmplex outcome of the

interac

ti

on of many factOrs and eie

meO[s

thar wry

fr

om one form of gov·

ernment to another.

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 thr one than from the senate.

44

The close relationship between political liber ty, moderation, and la ws de-

serves add itional scrutin

y.

While mode ration cannot be

id

entified with lib

erty, it

is

nonetheless one of the prerequisites of the

M o n t e ~ q u i e u

in

sisted that political liberty and moderation depend to a great extent on

the nature of the laws, adding that there can be no liberry and moderation

when laws are disregarded or misinterpreted to suit the interests of r ulers.

Freedom is der

iv

ed from the fixed. sta ble,

and

impersonal na ture of the law,

which,

in fre

e states.

is

everywhere known and

re

spected by all citiuns, re'

gardless of their rank or wealth.- ·

Wo

rth nming here is the connection

Montcsquieu draws ~ r w e e n li berty. moderation, balance of powers, and

the rule of law. Co rrespondingl

y,

political liberty and moderation are ab

se

nt

from tho

se

regimes

in

which fear and uncertainty dominate and where there

is no trust, honor, o r personal s«ur iry.

It

is

worth noting that Montesquieu refused to embrace the language of

rights, preferring instead

to

put cruelty

f i r s t . ~ '

At

th

e same time, he de

voted two major books of S (

XI

and XII) to discussing po irico liberty

in

relation to the constitution (the distribut ion of powers

in

the sta.te) and

iv

il

lib

erty

in

relation

to

the

citiun.

It

is

not enough to treat po

litk

a llihcrry

in

its rdation to the constitution, he argued;

it

must

be

sh

ow

n in its relation

to the citizen

SL,

X

II

: 1,

18 7)

. While

li

berty

is

promoted

by

a certain dis

tribution of the

thr

ee powe rs

in

the state that prevents those exercising the

le

gis lative and/or the executive power

fr

om having the power of judging,

political freedom means much more than the sepa ration (or distri bUl ion) of

powers a nd the presenct: of intermedia

ry

bodies. Properly understood, lib

erry depends on extra-political fac tors such as more s, manners, education,

customs, and reli

gion 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 particular way of soc

ial

life whose main frait is

moderation .

Wuy

of carrying any principl ·-including the allegedly good ones o

extremes, Mootesquieu s r o p ~ d shorr of t:onsiderillg the distribution or

separation of powers and (he cu le of law as ahsolute prerequisites of frcc

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A r c h i l e c l u r ~ of o ~ v ~ r m • 4.1

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

instead that moderation

is

needed to make the applica

ti

on

of

laws more

humane and that circumstances

muST

alwa

ys be

taken inm account. It

cou

ld

happen that the law, which is simuhaneousl 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

rigorous ly than the law "

SL,

XI: 6, 163).

Penal Moderation and Montesquieu's Theory

of

Jurisprudence

This

im

pon a

nr

dimension of moderation

in SL

com

es to

the

fo

re

in

Mon-

tesquieu's philosophy of jurisprudence.

4

'

The extended treatment of penal-

ties

in

hook

V

and the corresponding discussion of jurisprudence

in

book

XII,

along

with the analysis of Ihe power

of

judging and other related t

Op-

ics, add importanr dimensions to Montesquieu's reflections on the an of

legislation, political moderation. and the rule of

law,

Am ong the safeguards

of individu

al

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 jus

ti

ce,

wi

th their compl

ex and

slow proce-

dures meant to pr

ot

ect individuals against the loss of their Jile, liherty, and

properry.

Before examining in detail Montesquieu 's ideas on penal laws, il is impor-

ran t 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 ioterprete d as :t sophisti-

cated critique of the

id

ea of a uni

fo rm

and simple jurisprudence which some

of hj s concetnporaries fa vored. Monc ;squieu went to great lengths to argue

that laws mU St always

be

properly worded aod shou

ld be

supported

by

solid and clearly formulated rationa les. Their style must be conc ise and sim-

ple and ought to avoid vague expressions Ihal might lead 1 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 co rrect and sup-

POrt each other and that they ought to

be in

harmony with each other

and

should be judged collectively rather thao individua lly.

The underlying assumption of Montesquieu's theory of jurispru

de

ncc

is

exp lici tl y stated

in

SL. XII: 2 where, after de fining political liberty as ca n·

sisting "in security or, at least. in the opinion one has of one's securi ty,"

Monresquieu goes on to add that

the citittn's

liberty depends principally

on the goodness of the crimioa.l laws"

S L, XU:

2, 188

).

Since civillibe.rty is

equated with freedom from arbit rariness, freedom is pred

ica

ted upon a

know ledge of the rules and their predictable application io criminal judg-

menls: "Though tribunals shou

ld

not be fixed, judgments should

be fixe

d to

such a degree that they are oever anything but a precise text of the law"

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44 •

Two

SL, Xl: 6,

158).11

Since criminal laws can be a major source of injuslice

and abuse, effective safegua rds must be created

in

order

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 X

II

: 4 shows, can

be

affected by the nature and degree

of

penalties. The connection between

moderate penalties and an absence of arbitrariness is evident in the open ing

paragraph

of

this chapter: t is the triumph of liberry when criminal 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 thing and man does not do violence to man

SL

XII : 4,

J

89)

12

To the question when the legislator should punish or pardon,

Montesquieu answers that t h i ~

is

something bener

fdt

than descrilxd

SL, VI: 21,95), ad mitting that a wise legislator must enact penalties that

drnw from the nature of each case and shou ld act with pruden

ce

and

moderation.

In spite of the liberal tone of his theory of jurisprudence, which unam

biguously condemned torture, Montesquieu stopped short

of

challenging

lOo

me

of the most controversial articles of the Criminal O rdinance of 1670,

a code that contained several strikingly illiberal provisions.

H

Montesquieu

did not publicly object

to Ih

e stipulati

on

that trials were to

be

conducted

in

secrecy, nor did

he

th ink

that

the cross·examination of

wi

tnesses

by

defense

counsel was essen

ti

a l to a fa ir trial. Furthermore, Monresquieu did not ob-

jecr

to

the practice

of

not granting a right to counsel in criminal cases. In

stead, he insisted

that

wise legisl

ato

rs should use the means nature gives

them and presc ri be a

JUSt

mixture of penalties and rewa rds, drawing upon

the maxims of philosophy, mora

li ty

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 anyth ing 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, o n r ~ u ar

gued, a

good legis

l

ator

takes a middle way:

he

does not always order pecuniary penalties;

he

does not always inflict corporal

pe

nalties

.5L,

VI : 1

H

93). There a re c

as

es

when l e g i s l a t o ~ s should apply the

fuji

extent of the law and cases when thq

should refrai n from doing so: An adminis tration

is

sublime if it

is

well

aware what part of power, great or lOmalJ should be used in v a r i o u ~ circum

stances SL, XII: 25, 209).

A few concrete examples will he useful to illUStrate these poinrs. The im

portance of letters of pardon in moderate governments did nOI escape Mon-

tesquieu's attention. With regard to civ

il

penalties for accusations

of

heresy,

he recommended moderation, arguing that legislators must be very wary

of punishing a

ll

eged heretics SL, XII: 5, t 93).

In

such cases, prudence is

especially called for as proving that someone

hu

heretical views always in

volves controversial and potentially arbitrary interpretations of other peo

p l e . ~ beliefs. Discou

rse

and speech cannOt (

ar

m the

corp

u5 d ~ l i c because

1

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13/36

Acchitcx ture If Moderate ioVt tnmtn t •

45

they can always be easi ly misinterpreted;

Nm

hing makes th e crime of high

treason more arbitra ry than when indiscreel s

pe

ech 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

th e law can

sc

arcely sub

jec

t speech to a capita l

p e n ~ t l c y

S

L,

XII : 12, 198 ).

Once agai n, applying moderate penalties would be preferab le {O an a

cc

usa·

lion of high treason)5

Mo

reover, accusing someone of holding or propagat-

ing heretical vie ws becomes dangerous in propo rtion to pe o

pl

e's ignorance

and fears . That

is

why Montesquieu in sisted that laws should be charged

only

wi

th punishing external ac tions and should never seek to guess and

di sc ipline inner thoughts o r penalize secret intenrions.

H

A regime in which

people cou

ld

be charged with crim

es

of high treason all the g.rounds of their

thoup,hts would be :I harsh tyranny, since many ideas seen

as

challenging the

status

qu cou

ld

be interpreted as treason. The word treason, Montes-

quieu noted,

is

am biguous. and its vagueness represents a danger

to

mdi-

vidual liberty. Vagueness in the crime of high treason is enough to makt:

government degenerate i

nt

o despotism, S

,

XI1:

7,

194)

because it is a l-

ways possible to exaggerate or misrepresent the nature: of the alleged crime.

Momesquieu also addressed crimes aga

in

st religion, supporting the de-

::

riminalization of sacril

ege

and

bl as

phemy. III so doing, he combined bmh

pruden tial and nonna ti

ve

reasons. MPenallaws, he wrote, must be avoided

in

the

mamr of

religion, SL, XV : 12, 489) they a

lm

ost never have a

positivt: eHect and are often used

as

a mcans of stifl ing dissent and punish·

ing rivals. The

o

~ s made by religion are 50 great that, no maner what

pe nalties tbe magistrat

es

might impose, they will never be effective dett:r-

rt:nu . Legislators must

ac

t as political men and [lot theologians

SL.

XV:

9, 487) when judging th e

se

mattt:rs, ST iking a balance between g

iv

ing reli-

gion its due and limiting ils jurisdiction over pe

op

le

's

private lives. Montes-

quieu prudently acknowledged thac the institutions of religion are always

presumed to be the

beS

T 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:

re

ligion, about the

beSt

.

The good can have a nother ob j

ec

t \xciluse there

ace

several goods, but the

best is one alone and can, c f o r ~ , n

eve

r change SL ,

XVI:

2,

495).

MonteScluieu's views on penal laws were insepara ble from his be lief th at

liberty is secu re onl y in

Ih

ose regimes in which

il

is duly protected by the

fo

rm alilies

of

jus

ti

ce. In such g o v ~ r n m e n t s , th e forms and rules

of

justice

protect tbe dignity and liberty of ordinary ci tizens, for justi

ce

is admin i > ·

fered according to fixed, impersona l, and

ce

rta

in

~ t a n Tribunals of

the judici;uy, Montesquieu wrote, must always be coolheaded

ll

nd,

in

a

way, neutral in a ll matters of business

SL.

VI: 6, 80). Impa((ial procedures

along with unchanging rules and cle ar and known laws consti tute the es-

litnce of moderate government: Law is everywhere wi se ; it is known

eve

ry·

where. and the lowest of the magistrates can

foll

ow it , 1I The administra·

tioo of justi l :e req uires

sc

rupulous

in

quiri

es

and ca refull y weighed decisions

1:31


14/36

46

• T

wo

r d i n

to the spirit of (he law, while also raking into account the exis-

te

nce of "man y rules, restrictions, and extensions, multiply partic

ul

ar

cases and seem to make an a rt of reason

in

g itself:' t in free regimes, one

i1lways

finds a multiplicity of such

re

gula tions and con

ve

ntiom; reflecting

the numerous dis

ti

nc t ions in the natu re of men's goods, rank ., and socia l

condition

s.

s a rule, the formal ities lof justiceJ increase

in

proportion to

the im portance given to (

he

honor,

fo rt

une, life,

al

1d libe rry of the citizens"

SL, VI

, 2

,75).

In moderate regim e

s, th

e manner of for ming

ju dg

men

ts is

deeply imbued

with a spirit of moderation, whi h requires

sc

rupulous inquiries be

condu cted according to that spirit . Neither the prin ce no r h is counc

il

exer·

cises judicial power; the laws are supposed to

be

" the prince's eyes; he sees

with them what he could not see withou t them" S L,

V

I 5, 80), and he may

neVe t ignore Ot thetn .

60

The judgmenu rendered by the p rince would

otherwi

se

be

an inexhaustible source

of

injustice and ab use, much like the

judgments of a despot whose will meets with no effective obs tacle and

whose power is virtually unlim ited. Not only

is

the monarch prevenred

from exercis

in

g judicial power

in

moderate reg

im

es, but judges

3re

pre-

vented from making t

he

rules, which they are expected

to

follow to the lu -

rer while also making sure that no

la

w can be interpreted to the detr iment

of a citizen when it is a question of

his

goods. his honor, o r

his

life" t VI:

3,76). The existence of a genu

in

e spirit of judicia l compromise and of ex-

tensive judicial fo rm

ali

ries temper the exercise of power and modify the

ways in which

au

thori

ry

is dispersed and promoting respect for

the life, liberty, and prope rry of ordinary citizen s. T hus, the head of e

ve

n

the lowest ci tizen is esteemed

SL,

VI: 2, 75),' · and his honor and goods

ca n e removed

fr

om him only after cardu l examina

ti

on conducted accord-

ing to clea

rl

y

fo

rmulated procedures and laws.

By vi rtue of their complex s

tr

ucture, in modera te reg

im

es power is medi-

ated by an intr icate hie rarchical struCtur e tha t counter·ba lances the author·

ity of magistrate s and the pr

in

ce.'2 U

nl ik

e des potic reg

im

es, mode rate gov-

ernments can, as much as th ey want and without peril , "relax the ir springs

from time to time.

Soc

ial life under these regimes is not based on fea r and

intimidation.

l

They mainta in themse lves primarily

by

laws and mores that

effectively limit power and foster a genera l be ne

fi

l'ial spirit of mode ra

ti

on,

accom moda tion, and compromise.

fi sca l Modera

ti

on

Gi

ve

n the importanc e of co llec ting a nd using the revenues

of

the state, it is

not surprising tha t fisci l moderation'" occupies a cenrral place in Mont(s-

qui t 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.

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15/36

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

th

e 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

th

an 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 and 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 T 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

re

spects 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

ti

on

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-

~ p e t of

th

e laws SL, XIJI: 13,221) .

f

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>ert y itself leads

to

higher

taxes in

th

e 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

se rvitude 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

1011112011 1:31 :42 PM


16/36

48 • Two

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 order 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 sparingl

y.

"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 dt t lared preference for a

rati

onaliutioll of

fiscal policies peculiar in at least one

other

important

respect.

In

spite

of

his avowed

ttonomic

liberalism, he did

ot

follow the

lockean classical scheme of "no taxation without representation. In mod

erate governments, Montesquieu maintained, taxes are not based

on an

ex

plicit

co

ntract of sub

mi

ssion, but are seen as a way of rewarding" the rul

ers for obeying the laws and treating th

ei

r subjects with respect. As such,

taxes arc an expression of public trust in rulers and laws and an obligation

arising from tacit consenl.'s

Th

e Constitutional Framework of Moderate Government

Montesquieu's concept

of

moderation begins to come i l l lo sharper (ocus

now

as more light

is

shed

on

its ethical, conStiTutional, penal, and

fis

cal 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 constitutional prinCiple and as a prerequisite of political 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 t 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" SL V:14,63). Th e 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()' l20

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17/36

Arc:hilecrure of Modenr(: Gove rnment • 49

between the conceptS

of

mixture, equipoise, balance, and harmony. Much

as musical harmony is the outcome

of

an imerplay between dissonance and

concord, so political order is tht resulr

of

well·tempered and regulated ca

n-

(Ii

ct 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

pass ions and imerests into social harmony.

In

such govemments, political

liberty results from the "agitation ' and

fri

ction that

is

produced when di-

verse social groups and interests

co

llide. It is Ihe upshot of un e llvention

de plusiel4rs

et line

discussion d'inrerets

ba sed on ti n intricate web of mu-

tually controlling passions and interests, imcrmediary (corporate) bodies,

local cusroms, and libertie

s.

Two d

iffe

rent ye t 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

r

e/:lu

lated conflict

of

opposing groups, from whose institutionally coot ro

ll

ed

struggles for power results the freedom

of

the state . 'O

It is

to this second

meaning rhat we turn next in order to explore

th

e constitutional architec·

ture of moderate government.

Momesquieu paid particular attention

ro

this topic, especially in SL, Xl:

6, a chapter often viewed as a panegyric

of

the

En

glish constitution and il.$

alleged "separation "

of

powers. A closer look

re

vea ls. howeve

r,

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.

7

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 extrem

es if

not properly regulated by mores

and channeled into adequate institutions.

A conceptual clarifi':ltion is in

or

der

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 : l a t i v power, execu-

tive power over th e 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

th e definition

of

judicial power as "the executive

power over the things depending on civi l right" (MoTltesquieu used, in (act,

the phrase

la

puissance j

uge,

inS[cad

of

pOfl.loir u d i c i a i r ~ This re-

minds us th at in Montesquieu's writings, the judiciary does

nOt

have ye t

the prominent position

it

would have a

few

decades later

in

the

F e d ~ a l i s t

Papers.

71

Altbough Montesquieu considered independent judges an essen-

tial condition (or the preservation

of

freedom, he did not

grant

the judi-

ciary a status equal to that of the l

eg

islative and executive powers. None-

theless ,

to

th e question whether the judiciary power ca n and should be

C lnllb

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18/36

50 • Tw o

entirely

independent

f(om

th

e o

th

er (wo

powcrs, Montcsquieu

re

spo

nded

in

the

affirmative, stressing

the importance

of

the

mi t of law in securing

political moderation .

What, then,

is th

e 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 importan t to distinguish

between doctrines proposing a hierarchy among powers and those seeking

to create equilibrium between them,

without

assigning supe riorit y to any

one. The doctrine of the balance of powers has historically been grounded

in the recognition of the supremacy of th e legislative p o w e r , ~ 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 li ve powers and refers in-

st

ead

to

the

balance between the twO main powers sharing in

the

exe rcise of

the legislative

function .

The

different authorities sharing in the legislative

function may include the

fW

O chambers of parliament, the ministers as

agents

of

the exe

cutive power. and the constitutional mo narch or

othe

r 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

th

e

lan

er

can

be achieved

either through separation or specialization.

It

was the doctrine

of

the ba lanced constitution r

ather

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 separa t ion of the personnel of the legislative and executive powers.

n

His key point can be sta ted as follows: liberty and moderation cannOI ex ist

in a sta te in wh ich power is chronica lly abused and which lacks proper

checks

and

balances. In

order

t{

build

moderat

e government

and pr

eve

nt

abuses

of

power, onc nlust create viab le institutional mechanisms that can

effectively block attempts at usurping power: So that one ca nnot abuse

power,

power

must check power by the arrangement of things SL,

XI:

4,

155).

Hence,

what is

usually referred

to

as the

separation

of powers in MOrl

-

Tesquieu's work

can

be summar ized by the following 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 dfecti vely protect the rights of individuals.

Hence, in m

ode

ra t

e reg im es no single person or body o f magis

lfat

es

can

si-

mu ltaneously eXl rcise both

the

executive and th e judiciary power. A ll

would e lost, Montesquieu acknowledged, if the same man or the same:

body of principal men, either nobles, or of the people, exercised these th ree

powers: th at of making the laws, that of execuling public reso lut ions, and

chat of judging the crimes or

the

dispotes of individuals SL, XI:

6,

1.)7).

I

ndb

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19/36

ArchiteelUrt o f Moderate Governmelll • 5 1

In many kingdoms of Europe, Montesquieu added, t

he

government is

moderate because the prince, who has the first two powers, leaves the exer

cise of the third to his subjects

SL,

XI: 6,

157),

Whi le distinguishing between the sepa ration and distribution of powers,

Mo

ntesquieu a lso redefined the boundary between the

thr

ee powers

in

the

state

in

such a way that they exercise mutual oversigh t and keep each

other

in

cbeck at all rimes. To prevent the omnipotence of the legis lative

powe r

he ~ t i p u l t e d

that the leg islative body should

ne

ve r

conv

ene itself

and should not remain in permanent

se

ss

ion. If the executive did not have

the power to r

eg

ulate the opening and duration of l

eg

isla

ti ve

sessions, the

assembly could well

bet.:ome

despotic. At the same time, to prevent the tyr

Ilnny of the execu

ti

ve, Montesquieu

in

sisted 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

monar

ch. H

is

person should be sa

cred 7 and placed above political groups and panies, as a guaranree of the

stability of the social o

rd

er. The constilul iona

llll

onarch ought to be politi

ca

ll

y unaccountable

in

order to

be

able to properly

exeu

:

ise

his politica l

rol

e.

Because the mona rch is u ltimately bound

by

Ih e fundam ental laws of

the kingdom, his power, Momesquieu insisted,

is

in

fact limited and moder

ated

by

cou ntless intermediary bodies, custom

s,

and mores. all acting as

tempering

de

vi

ces.

Montesquieu granted a share

in

the legisla tive and executive power to

bOlh

pa

rl

iament and the monarch

in

caref

ull

y calculated degrees so as to

crea te a functional and flexible system of checks and balan

ces

and overlap

ping jurisdictions. I}arliament , he a rgued, must ha

ve

the

right 1

examine

how laws are executed and should retain the right to

app

rove or reject t

he

ra ising of public fund s by

{h

e executive power. In lu rn , in a moderate mon

arc

hy

, the sovereign authority must h

ave

the r

ig

ht

to

veto the laws voted

by

the two chambers: Executive power should take part in legislat ion by

irs

faculty of vetoing; otherwise it w

ill

be stripped of its prerogatives SL, XI:

6, 164).

No

netheless, the participation

of

the monarch

in

the exercise

of

the

legislative power ought

to

be limited, and the monarch shou

ld

never take

pa

rt in leg islat

io

n by enacting laws; if

he

we

re to

do so, there would no

longer

e Iib

ert

y,

7

Furthermore, Montesquicu did

not

exp lici tl y advoca te the political re

sponsibili

ty

of the king's ministers

in

parliameot

lQ

and stopped short of en

dors

in

g the mo re traditiona l doct rine of the king-in-pa rliament

.

In a

se

minal passage,

be

de.

\C

ribed the final outco

me

of these constitutio

na.

pro

visions as

fo ll

ows: Here, therefore, is

[h

e fundamental constitution of the

gove

rn

ment

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.

Th

e

tw

will

be bound by

the executive power,

wh

ich will itself

be

bou

n by the legislative power As lhey are con strained

to

move by the


20/36

52 • Two

necessary mo

ti

on of things, th

ey

will be

forced to move in concert (SL, XI:

6).12

Wha t

is

remarkable

in

this passage

is

that Montesquieu refers

to

inde

pendent powers t

ha

t are chained to each othe r, stressing that t hey are

in

te

rd

ependent and always bound to act

in

concert

fo

r the sake of the co m

mon good.

We : Ire

now in a better position to understand how Montesquieu was

able to reformula te in modern

e r m ~

t

he

old Ciceron

ia

n theory of

concordia

ordinllm

(discussed ear

li

er)

by

giv

in

g it a mode rn twist. Al-

though the two main powers in the state (t he legislative and the executive)

are in theory independem of each other,

in

rea

li

ry they are o

ft

en o bli ged to

co mprom

ise

and tem

pe

r their pol

itit:n

l am

bi

tions. The depu t

ies

'

in

it

ia

t ives

cannot become laws without the ap proval of the monarch, a roy

al Ve

to

fo

rci ng in each case parliament to return to the drawing board. At the

sa

me

tim

e,

the mona rch must ca refu

ll

y weigh the options

fo

r the

fo

rmation of his

cabinet, being exp«ted to propose to the two Chambers only those mi

ni

s-

ters who would gove

rn

according to

(a

nd no t against) the wishes of the

majo ri ty in parliame nt. Thus,

de iure

independence of powen is not t

he

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 st rict sepa ration of powers and their funetions .u

t

might seem odd, then, that Mon tesq

ui

eu's a

ll

eged separa

ti

on of pow

ers becomes

in

the end a

balance of

mutua

ll

y contro

ll

ing powers tha t keep

each ot her in equipoi

se

and tire bound to t in concert for promoting the

common good.-« This interpretation reflects Montesquieu's endorsement of

a hybri d constitutiona l model combining t

he

separ3tion of powers with

t

he

decentral

ize

d framewo

rk

of the o

ld

er Got h

ic

constitution, based on a

com pl ex ve rt

ic

al system of ove rlapping ins titutions and jurisdic tions. As Lee

Wa

rd perceptivd y noted,

Mo

ntesq

ui

eu presents the federal pr inci

pl

es em

bedded in the decentra

lize

d Gothic Constitution as a vita l supplement to t

he

se

parati on of powers, and a corr

ec ti

ve to the prob lem of conce ntrated

power in modern

Engl

and and Fr ance,',IJ This semina l point becom

es

evi

dent in the last (o

ft

en neglected) books of SL. where

Mo

ntesqu icu o

ff

ers a

deta iled examination of French feudal laws that is essential to an under·

standing of his poli

ti

c

al

moderat ion. He examined the system

of

t

he

j

us

t

ice

of lords according to which justice was a rig ht inhe rent

in

the fiefs,

in

sist·

Ing

on the infinity of charters prohibiting the judges or officers of the king

from entering the territory

fa

exercise any act of justice whatever o r

to

r

e-

quire any judicia l emo lument whatever (SL, XXX: 20,652). Th

is

is

im

por-

tant because it co nfirms that. under feuda l government, the auth

or it

y

of

the

monarch was in fact a limited power, especially after the reign of Char

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

vassals no longe r obeyed, a nd they even used their under-vass

al

s

in

o rd er

not to obey any longer (SL, XXX I: 32, 7 16).


21/36

Ar

chitecture

of

Moderate Government • 53

Thus, Montesquieu's theory of the balance of powers achieved in Ihe end

something that a strict sepa ration of powers would

nev

er have

be

en able to

accomplish on 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 constitutional principle combined

the horizontal separation of powers among various branches of government

with the vertical diffusion of power among several

lay

ers of authority.¥' Ac

cording to this view, it would

be

incorrect

to

simp ly 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 mixe between the twO in such a way

that both powers are able to reciprocally control and temper each other's

initiatives.

By re

fUSing to

give the direction of Ihe commonwe ,ltn to a single body or

perso

n,

Montesqu ieu challenged competing theories o sovereignty-those

of 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

Jean·Jacques Burlamaqui (1694-1748), whose Prin cipes u droit n turel et

politique

was published

in

1747, a

yea

r before Mon

te

squieu's

nttlgnum

opu

s Burlamaqui's conception of the balance

of

powers, which resembled

Montesquieu

s

constitut ionalist agenda, exercised considerable i n f u e n ~ on

the Founding Father

s.

There is,

in {a

ct, ample evidence that his work was

widely known

in

mid-eighteenth-century American co lleges.

I

In an impor

tant passage he explicitly referred to the balance

of

powers and checks and

balances

in

a to

ne

that reminds one of 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 authorit

y,

within the bounds

which the law prescribes

to

them;

by

which means the public lib

erty is secured. ror example, the ro

yal

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 o t h e r · ~

Commenting on the relationship between div ided sovereignty, mixed gov

ernment, balance

of

power

s,

and political modera t

io n,

Bllrlamaqui reached

a se t 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 sove

r-

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

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22/36

54 • Two

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 indiv iduals."

KI

At

the sa me time, it must e pointed out that Montesquieu went

farther

than his Genevan contempora ry in linking moderation to ba lance of powers

and political pluralism as prerequisites of a free

sociNY.

Liberty, Mon tes -

quieu argued, is best proteCted in a reg

im

e in w

hi

ch rh r power and the gov·

ernment of society are in the hands of various social groups and interests

competing for supremacy. Th

us

, moderate govern

me

nts call survive and

thrive only if their institutions foster and ~ u c c e s s f u l l y chanuc=: the genuine

pluralism of interes ts and ideas withom which there can never

be

any

la

st-

i

ng

freedom or

sec

urity.'

Th

e

Good

Legis

lator

and

th

e

Spirit

of

Moderation

I have already referred to Montesq

ui

eu

's

claim that the good

legi

slator

should

be

imbued with the spirit of moduation.

Fo

r .. II its brevity, Ihis re-

mains an ambiguous remark. Why should moderation be the supreme \'ir-

t

ue

of the legislator rather than fairness or justice? Mnn lesquieu's answer to

this qurs tion is worth exam ining in drtail since il is central 1 the mai n

themes of the present book. As Cel

A Virtue for Courageous Minds Moderation

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