PHILOSOPHY OF LAW

The Spirit of Laws, principal work of the French political philosopher Montesquieu (in full
Charles-Louis de Secondat, baron de La Brède et de Montesquieu) first published in 1748.
Montesquieu’s masterpiece is one of the most influential studies in the history of political theory
and jurisprudence.

The first of these is his classification of governments, a subject that was de rigueur for a political
theorist. Abandoning the classical divisions of his predecessors into monarchy, aristocracy, and
democracy, Montesquieu produced his own analysis and assigned to each form of government
an animating principle: the republic, based on virtue; the monarchy, based on honour; and
despotism (see tyranny), based on fear. His definitions show that this classification rests not on
the location of political power but on the government’s manner of conducting policy; it involves a
historical and not a narrow descriptive approach.

Montesquieu
The Spirit of Laws, principal work of the French political philosopher Montesquieu (in full
Charles-Louis de Secondat, baron de La Brède et de Montesquieu) first published in 1748 as
De L’Esprit des loix; ou, du rapport que les loix doivent avoir avec la constitution de chaque
gouvernement, les moeurs, le climat, la religion, le commerce, etc. (The Spirit of Laws, 1750).
Montesquieu’s masterpiece is one of the most influential studies in the history of political theory
and jurisprudence.

Montesquieu envisioned The Spirit of Laws as a major work of law and politics, and he applied
himself accordingly to its composition. He undertook an extensive program of reading in law,
history, economics, geography, and political theory, producing several volumes of notes, of
which only one, on geography, survives. He employed a succession of secretaries, sometimes
as many as six simultaneously, using them as readers and amanuenses but not as précis
writers. By 1740 the main lines of his masterpiece were established and a great part of it was
written. By 1743 the text was virtually complete, and he began the first of two thorough and
detailed revisions, which occupied him until December 1746. The actual preparation for the
press was at hand. A Geneva publisher, J. Barrillot, was selected, further corrections were
made, several new chapters were written, and in November 1748 the French-language work
was published in two quarto volumes, comprising 31 books.

Montesquieu had acquainted himself with all previous schools of thought but identified himself
with none. Of the multiplicity of subjects treated by Montesquieu, none remained unadorned. His
treatment of three was particularly memorable.

The first of these is his classification of governments, a subject that was de rigueur for a political
theorist. Abandoning the classical divisions of his predecessors into monarchy, aristocracy, and
democracy, Montesquieu produced his own analysis and assigned to each form of government
an animating principle: the republic, based on virtue; the monarchy, based on honour; and
despotism (see tyranny), based on fear. His definitions show that this classification rests not on
the location of political power but on the government’s manner of conducting policy; it involves a
historical and not a narrow descriptive approach.

The second of his most-noted arguments, the theory of the separation of powers, is treated
differently. Dividing political authority into the legislative, executive, and judicial powers, he
asserted that, in the state that most effectively promotes liberty, these three powers must be
confided to different individuals or bodies, acting independently. His model of such a state was
England, which he saw from the point of view of the Tory opposition to the Whig leader Robert
Walpole, as expressed in Viscount Bolingbroke’s polemical writings. The chapter in which
Montesquieu expressed this doctrine—Book XI, chapter 6, the most famous of the entire
work—laid in his drawers, save for revision or correction, since it had been penned in 1734. It at
once became perhaps the most important piece of political writing of the 18th century. Although
its accuracy has in more recent times been disputed, in its own century it was admired and held
authoritative, even in England; it inspired the Declaration of the Rights of Man and of the Citizen
(1789) and the Constitution of the United States (ratified 1788, entered into force 1789).

The third of Montesquieu’s most-celebrated doctrines is that of the political influence of climate.
Basing his approach on doctrines met in his reading, on the experience of his travels, and on
experiments—admittedly somewhat naive—conducted at Bordeaux, France, he stressed the
effect of climate, primarily thinking of heat and cold, on the physical frame of the individual, and,
as a consequence, on the intellectual outlook of society. This influence, he claims, is not, save in
primitive societies, insuperable. It is the legislator’s duty to counteract it. Montesquieu took care
(as his critics have not always realized) to insist that climate is but one of many factors in an
assembly of secondary causes that he called the “general spirit.” The other factors (laws,
religion, and maxims of government being the most important) are of a nonphysical nature, and
their influence, compared with that of climate, grows as civilization advances.

Society for Montesquieu must be considered as a whole. Religion itself is a social phenomenon,
whether considered as a cause or as an effect, and the utility or harmfulness of any faith can be
discussed in complete independence of the truth of its doctrines. Here and elsewhere,
undogmatic observation was Montesquieu’s preferred method. Sometimes the reader is
beguiled by this into the belief that Montesquieu maintains that whatever exists, though it may
indeed stand in need of improvement, cannot be wholly bad. Yet with a bold parenthesis or a
rapid summing-up, the reader is reminded that for Montesquieu certain things are intrinsically
evil: despotism, slavery, and intolerance.

The History of Law

A law can be generally defined as a rule governing human behavior that has been accepted as
valid and can be enforced by a central authority. In small prehistoric societies, laws were not
needed. Either consensus of opinion or use of force would result in acceptable behavior. As
soon as civilizations began to develop and people began to live together in larger and more
diverse groups, it became necessary to develop common understandings of what constituted
acceptable behavior.

An Overview of Legal History

The earliest record of a written legal systems dates from approximately 2100 BCE in the ancient
city of Ur. Cultures in different parts of the world developed their own ways of governing human
behavior. The Western legal tradition that developed in Europe and spread to the Americas has
come to be the dominant legal tradition in the world. This tradition is largely secular and does
not rely on religious concepts in its formulation.

Origins of Law
Research has indicated that a desire for law and order may be a natural human trait.
Undoubtedly, early societies established codes to govern society long before writing existed.
One of the oldest written codes of laws is the Code of Hammurabi. This code was inscribed in
stone c. 1772 BCE for King Hammurabi of Mesopotamia. Although Hammurabi's code is not the
oldest known set of written laws, it is one of the most complete. It also influenced the
development of later law codes.

Law in the Ancient World

Western civilization owes many of its major institutions to the ancient Roman society. One of the
most significant Roman contributions is the concept of Roman law. Roman law developed from
a document called the Twelve Tables. The rules of the Twelve Tables later evolved into a
complex legal system that was applicable to all citizens throughout the vast Roman Empire. The
Roman legal system constituted a system of law and order that everyone could depend upon. It
developed many important concepts that are now vital to legal systems. Not the least of these is
the concept of jurisprudentes, the use of legal experts to study laws to determine the best
interpretations. Roman law affected the development of legal systems throughout the West for
centuries to follow.

Law in the Middle Ages

The period from the fifth century to the fifteenth century in Europe is generally referred to as the
Middle Ages, or the Medieval period. The primary system of government was based on
feudalism. The feudal system was based on land ownership. Under feudalism, lords "owned"
land, and vassals were given permission to work the land by the lord. In return, the vassal was
required to serve the lord when required, whether militarily or with payment of goods or money.
Just as the vassal had obligations to the lord, so did the lord have obligations to the vassal,
such as maintaining and protecting the land. This system of land usage extended in a
continuous chain all through society. At the top of society was the king, who owned all of the
land. He granted use of land to his noblemen, who in turn granted use to lesser nobility, and so
on down the line to the common serf. At each level, there was a system for regulating laws and
behaviors. In practice, most legal decisions were based on the same principles of common law,
following customs that had been handed down over time.

In medieval Europe, the power and authority of the Catholic Church was largely unquestioned.
Church and state were closely related. The Church developed laws governing church-related
activities, such as marriage and priesthood. This set of canon law was separate from secular
law. Most of the time, the two systems functioned smoothly together, but there were times when
the two contradicted each other.