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The Spirit of Laws
The Spirit of Laws (Contemporary Issues (Prometheus))
Release Date: March, 2002
Publisher: Prometheus Books
The Spirit of Laws is one of the most influential books of all time. This masterpiece of political philosophy was widely read throughout Europe, attracted an especially enthusiastic readership in England, and had a profound effect on the framers of the American Constitution. Montesquieu (1689-1755), already famous and controversial through his Persian Letters, a work of his youth in which he humorously satirized the foibles of French society, turned in his later years to this serious treatise on the nature of law. But though the subject itself was profound, this gravitas did not inhibit the famous Montesquieu wit. Master of the pithy bon mot, he managed to survey a great deal of political and philosophical territory while keeping his readers charmed with memorable and artfully turned phrases. "Liberty," he says, "consists in the ability to do what one ought to desire and in not being forced to do what one ought not to desire." Concerning the unpopularity of the English in France, he says it is due to their arrogance, which is such that even in peace "they seem to negotiate with none but enemies."The scope of this masterful work is truly prodigious. Montesquieu explores the essentials of good government; compares and contrasts despotism, monarchy, and democracy; and discusses the factors that lead to corruption of governments. Among the many other topics considered are education of the citizenry, crime and punishment, abuse of power and of liberty, individual rights, taxation, slavery, the role of women, the influence of climate on the temper of a people and their form of government, commerce, religion, and a host of additional subjects.The Spirit of Laws is essential and genuinely enjoyable reading for anyone interested in the development of democracy.
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The man who invented the separation of powers in government
Posted by Michael A Neulander on 1/16/2009
I read this book for a class on the philosophy of law. The French philosopher Montesquieu, in his book "Spirit of the Laws," wrote that one of the dangers of "activist" judges was rulings made by judges who are natural law theorist proponents become ex post facto laws for the people before the court, and if judges do this routinely, it would make life for citizens in such a society intolerable. "If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted" (158).
Montesquieu makes a very prescient observation relating to judges who have resorted to constitutional comparativism in their written opinions when adjudicating cases before them. Montesquieu is skeptical of the methodology used by judges who refer to foreign law in interpreting a nation's laws. Montesquieu writes in his book Spirit of the Laws that, "Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another" (8). Montesquieu also wrote that, "In republican government, it is in the nature of the constitution for judges to follow the letter of the law" (76).
Montesquieu is best known for being the first person to advocate in his writings for the separation of the judiciary from both the executive and legislative branches of government, an idea our "founders" adopted and has been enshrined in our Constitution as the "separation of powers system" of government. Therefore, Montesquieu does not think it is the prerogative of judges interpreting their nation's constitution or law code to make perceived necessary changes to keep up with changing social values. Montesquieu believes that in a democratic society, the people are sovereign and thus a nation's constitution and law code should be changed by the people's elected representatives and not by appointed judges. Montesquieu is not against citizens changing their Constitution or laws, "... the Constitution should keep up to date--but it should keep up to date with the views of the people."
Montesquieu's genius was in his perception of the history of how nations govern, which has provided ample proof that there is a direct correlation between those democracies that maintain a healthy balance of powers between the branches of government and are the same democracies that are most protected from the danger of slipping into tyranny; whether it is rule by a dictator or rule by a politically privileged few, such as an oligarchy. One of the best-articulated ideas on this subject comes once again from Montesquieu's book, Spirit of the Laws. "Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be a legislator" (157).
Recommended reading for those interested in philosophy, history of America's founding, and political science.