The Spirit of Laws
by Charles de Montesquieu
Of Laws in General
1. Of the Relation of Laws to different Beings.
Laws, in their most general signification, are the necessary relations
arising from the nature of things. In this sense all beings have their
laws: the Deity1 His laws, the
material world its laws, the intelligences superior to man their laws, the
beasts their laws, man his laws.
They who assert that a blind fatality produced the various effects we
behold in this world talk very absurdly; for can anything be more
unreasonable than to pretend that a blind fatality could be productive of
There is, then, a prime reason; and laws are the relations subsisting
between it and different beings, and the relations of these to one
God is related to the universe, as Creator and Preserver; the laws by
which He created all things are those by which He preserves them. He acts
according to these rules, because He knows them; He knows them, because He
made them; and He made them, because they are in relation to His wisdom
Since we observe that the world, though formed by the motion of matter,
and void of understanding, subsists through so long a succession of ages,
its motions must certainly be directed by invariable laws; and could we
imagine another world, it must also have constant rules, or it would
Thus the creation, which seems an arbitrary act, supposes laws as
invariable as those of the fatality of the Atheists. It would be absurd to
say that the Creator might govern the world without those rules, since
without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the
motion is received, increased, diminished, or lost, according to the
relations of the quantity of matter and velocity; each diversity is uniformity,
each change is constancy.
Particular intelligent beings may have laws of their own making, but
they have some likewise which they never made. Before there were
intelligent beings, they were possible; they had therefore possible
relations, and consequently possible laws. Before laws were made, there
were relations of possible justice. To say that there is nothing just or
unjust but what is commanded or forbidden by positive laws, is the same as
saying that before the describing of a circle all the radii were not
We must therefore acknowledge relations of justice antecedent to the
positive law by which they are established: as, for instance, if human
societies existed, it would be right to conform to their laws; if there
were intelligent beings that had received a benefit of another being, they
ought to show their gratitude; if one intelligent being had created
another intelligent being, the latter ought to continue in its original
state of dependence; if one intelligent being injures another, it deserves
a retaliation; and so on.
But the intelligent world is far from being so well governed as the
physical. For though the former has also its laws, which of their own
nature are invariable, it does not conform to them so exactly as the
physical world. This is because, on the one hand, particular intelligent
beings are of a finite nature, and consequently liable to error; and on
the other, their nature requires them to be free agents. Hence they do not
steadily conform to their primitive laws; and even those of their own
instituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a
particular movement, we cannot determine. Be that as it may, they have not
a more intimate relation to God than the rest of the material world; and
sensation is of no other use to them than in the relation they have either
to other particular beings or to themselves.
By the allurement of pleasure they preserve the individual, and by the
same allurement they preserve their species. They have natural laws,
because they are united by sensation; positive laws they have none,
because they are not connected by knowledge. And yet they do not
invariably conform to their natural laws; these are better observed by
vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have
some which we have not. They have not our hopes, but they are without our
fears; they are subject like us to death, but without knowing it; even
most of them are more attentive than we to self-preservation, and do not
make so bad a use of their passions.
Man, as a physical being, is like other bodies governed by invariable
laws. As an intelligent being, he incessantly transgresses the laws
established by God, and changes those of his own instituting. He is left
to his private direction, though a limited being, and subject, like all
finite intelligences, to ignorance and error: even his imperfect knowledge
he loses; and as a sensible creature, he is hurried away by a thousand
impetuous passions. Such a being might every instant forget his Creator;
God has therefore reminded him of his duty by the laws of religion. Such a
being is liable every moment to forget himself; philosophy has provided
against this by the laws of morality. Formed to live in society, he might
forget his fellow-creatures; legislators have therefore by political and
civil laws confined him to his duty.
2. Of the Laws of Nature. Antecedent to the
above-mentioned laws are those of nature, so called, because they derive
their force entirely from our frame and existence. In order to have a
perfect knowledge of these laws, we must consider man before the
establishment of society: the laws received in such a state would be those
The law which, impressing on our minds the idea of a Creator, inclines
us towards Him, is the first in importance, though not in order, of
natural laws. Man in a state of nature would have the faculty of knowing,
before he had acquired any knowledge. Plain it is that his first ideas
would not be of a speculative nature; he would think of the preservation
of his being, before he would investigate its origin. Such a man would
feel nothing in himself at first but impotency and weakness; his fears and
apprehensions would be excessive; as appears from instances (were there
any necessity of proving it) of savages found in forests,2
trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equality,
would fancy himself inferior. There would therefore be no danger of their
attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of
subduing one another is far from being well founded. The idea of empire
and dominion is so complex, and depends on so many other notions, that it
could never be the first which occurred to the human understanding.
Hobbes3 inquires, "For what
reason go men armed, and have locks and keys to fasten their doors, if
they be not naturally in a state of war?" But is it not obvious that
he attributes to mankind before the establishment of society what can
happen but in consequence of this establishment, which furnishes them with
motives for hostile attacks and self-defence?
Next to a sense of his weakness man would soon find that of his wants.
Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one another; but the
marks of this fear being reciprocal, would soon engage them to associate.
Besides, this association would quickly follow from. the very pleasure one
animal feels at the approach of another of the same species. Again, the
attraction arising from the difference of sexes would enhance this
pleasure, and the natural inclination they have for each other would form
a third law.
Beside the sense or instinct which man possesses in common with brutes,
he has the advantage of acquired knowledge; and thence arises a second
tie, which brutes have not. Mankind have therefore a new motive of
uniting; and a fourth law of nature results from the desire of living in
3. Of Positive Laws. As soon as man enters
into a state of society he loses the sense of his weakness; equality
ceases, and then commences the state of war.
Each particular society begins to feel its strength, whence arises a
state of war between different nations. The individuals likewise of each
society become sensible of their force; hence the principal advantages of
this society they endeavour to convert to their own emolument, which
constitutes a state of war between individuals.
These two different kinds of states give rise to human laws. Considered
as inhabitants of so great a planet, which necessarily contains a variety
of nations, they have laws relating to their mutual intercourse, which is
what we call the law of nations. As members of a society that must
be properly supported, they have laws relating to the governors and the
governed, and this we distinguish by the name of politic law. They
have also another sort of law, as they stand in relation to each other; by
which is understood the civil law.
The law of nations is naturally founded on this principle, that
different nations ought in time of peace to do one another all the good
they can, and in time of war as little injury as possible, without
prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that of
conquest preservation. From this and the preceding principle all those
rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois
themselves, though they devour their prisoners: for they send and receive
ambassadors, and understand the rights of war and peace. The mischief is
that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a polity
or civil constitution for each particularly considered. No society can
subsist without a form of government. "The united strength of
individuals," as Gravina4 well
observes, "constitutes what we call the body politic."
The general strength may be in the hands of a single person, or of many.
Some think that nature having established paternal authority, the most
natural government was that of a single person. But the example of
paternal authority proves nothing. For if the power of a father relates to
a single government, that of brothers after the death of a father, and
that of cousins-german after the decease of brothers, refer to a
government of many. The political power necessarily comprehends the union
of several families.
Better is it to say, that the government most conformable to nature is
that which best agrees with the humour and disposition of the people in
whose favour it is established.
The strength of individuals cannot be united without a conjunction of
all their wills. "The conjunction of those wills," as Gravina
again very justly observes, "is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the
inhabitants of the earth: the political and civil laws of each nation
ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they are
framed that it should be a great chance if those of one nation suit
They should be in relation to the nature and principle of each
government; whether they form it, as may be said of politic laws; or
whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the
quality of its soil, to its situation and extent, to the principal
occupation of the natives, whether husbandmen, huntsmen, or shepherds:
they should have relation to the degree of liberty which the constitution
will bear; to the religion of the inhabitants, to their inclinations,
riches, numbers, commerce, manners, and customs. In fine, they have
relations to each other, as also to their origin, to the intent of the
legislator, and to the order of things on which they are established; in
all of which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These
relations I shall examine, since all these together constitute what I call
the Spirit of Laws.
I have not separated the political from the civil institutions, as I do
not pretend to treat of laws, but of their spirit; and as this spirit
consists in the various relations which the laws may bear to different
objects, it is not so much my business to follow the natural order of laws
as that of these relations and objects.
I shall first examine the relations which laws bear to the nature and
principle of each government; and as this principle has a strong influence
on laws, I shall make it my study to understand it thoroughly: and if I
can but once establish it, the laws will soon appear to flow thence as
from their source. I shall proceed afterwards to other and more particular
1. "Law," says Plutarch, "is
the king of mortal and immortal beings." See his treatise, A
Discourse to an Unlearned Prince.
2. Witness the savage found in the
forests of Hanover, who was carried over to England during the reign of
3. In pref.,
4. Italian poet and jurist,
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