Abstract
In the previous chapter, the discovery of the social was seen to occur as a discovery by the political of its own limits. These limits are only perceived when the principal terms of the political, law and power, are relativized, such that they no longer appear solely responsible for the constitution of a collective order. This relativization was seen to occur through a decentring of the chain of beings characteristic of the hierarchical imaginary. With the hierarchy in ruins, there is no single law (however calibrated) that commands all the different links in the chain. The intermediary links follow their own laws, all of which impact on human existence, which is thus subject to heterogeneous demands. Humans must thus try to produce a meaningful order from their own positive laws, even as all the general laws continue to condition this order. The fissure between the disorder occasioned by the general laws and the order constituted by positive laws ensures that there can be no simple principle of translation between the two types of law. The legislator, as the one who makes positive laws, encounters the effects of the general laws and, by implication, of the social, to the extent that he acts contrary to his situational limits. A wise legislator will be aware of these limits, and will adjust his actions accordingly. An even wiser legislator will understand his situation in terms of possibilities, as well as limits, and will direct the ship of state by tacking with the wind.
The history of all times and peoples, whose succession forms the great living word of God, is reduced to ruins and divided neatly into three heaps … O, Montesquieu!
(Herder)2
The genesis of this chapter can be found in Brian C. J. Singer, ‘Montesquieu on Power: Beyond Checks and Balances,’ in Montesquieu and His Legacy, ed. Rebecca Kingston (Albany, NY: SUNY Press, 2008).
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Notes
Johann Gottfried Herder, Herder on Social and Political Culture, trans. and ed. F. M. Bernard (London: Cambridge University Press, 1969), p. 217;
cited in Melvin Richter, ‘The Comparative Study of Regimes and Societies,’ in Eighteenth Century Political Thought, ed. Mark Goldie and Robert Wokler (Cambridge: Cambridge University Press, 2006), p. 170.
I have placed the twin ‘democracy-anarchy’ in scare quotes because sometimes the ‘shadow regime’ is demagogy; but sometimes, as in Aristotle, it is democracy itself, with the ‘politeia’ providing the more respectable twin. Aristotle , The Politics, trans. Ernest Barker (London: Oxford University Press 1958), pp. 113–15.
The term ‘despotism’ does not appear to have existed, at least in French, before the eighteenth century, being first found in the Dictionnaire de Trévoux in its 1721 edition. The term despot certainly existed in the latter half of the seventeenth century, but was not necessarily pejorative: thus the 1690 Dictionnaire de Furetière defines the despot as a ‘an honorary title and quality given to the princes of Wallachia and some of their neighbours’ [that is powers under the suzerainty of the Ottoman empire]. On the history of the term see in Richard Koebner, ‘Despot and Despotism: Vicissitudes of a Political Term,’ Journal of the Warburg and Courtauld Institutes, 14 (1951), pp. 275–302;
Melvin Richter, ‘The History of the Concept of Despotism,’ in Dictionary of the History of Ideas, 4 vols. (New York: Charles Scribner’s Sons, 1973), vol. 2, pp. 1–18;
Franco Ventura, ‘Oriental Despotism,’ Journal of the History of Ideas, 24 (1963), pp. 133–42;
Grosrichard Alain, La structure du sérail (Paris: Seuil, 1979); Binoche, Introduction à De l’Esprit des lois de Montesquieu, pp. 222–3.
‘[Montesquieu] is doubtless the first author to speak of power as a thing, separable in right and fact from its origin as well as its end, man himself.’ Pierre Manent, An Intellectual History of Liberalism (Princeton, NJ: Princeton University Press, 1994 [19871), p. 55.
Think of Max Weber’s definition: ‘Power is the probability that one actor within a social relationship will be in a position to carry out his will despite resistance’ in Economy and Society, vol. 1 (Berkeley, CA: University of California Press, 1978), p. 53.
Diana J. Schaub, Erotic Liberalism: Women and Revolution in Montesquieu’s Persian Letters (Lanham, M. D.: Rowan & Littlefield, 1995).
The idea of a ‘generalized other’ is George Herbert Mead’s, Mind, Self and Society (Chicago, IL: University of Chicago Press, 1934).
Perhaps Montesquieu was referring to Louis le Bien-Aimé when he wrote: ‘A monarchy is ruined when a prince […] is more enamoured of what he fancies than of what he wills [plus amoureux de ses fantaisies que de ses volontés]’ (VIII, 6). The problem was that Louis XV was seen as failing to reciprocate his subjects’ love, largely because that love was diverted to his mistresses, who became excessively public figures. See Thomas E. Kaiser, ‘Louis le Bien-Aimé and the Rhetoric of the Royal Body’ in From the Royal to the Republican Body: Incorporating the Political in Seventeenth- and Eighteenth-Century France, ed. Sara E. Melzer and Kathryn Norberg (Berkeley, CA: University of California Press, 1998), pp. 131–61.
Perhaps by coupling honour with virtue, Montesquieu wants to neutralize the opposition between the pursuit of glory and concern with the common good, which Louis XIV lamented on his deathbed to the Dauphin. François Lebrun, Louis XIV: Le roi de gloire (Paris: Gallimard, 2007), p. 135.
Dena Goodman draws attention to the structure of power in the salon in The Republic of Letters: A Cultural History of the French Enlightenment (Ithaca, NY: Cornell University Press, 1994), pp. 90–135.
Historians of the period—Roland Mousnier, The Institutions of France Under the Absolutist Monarchy, 1590–1789, 2 vols., trans. Brian Pierce (Chicago, IL: University of Chicago Press, 1979–84);
Denis Richet, La France Moderne: L’Esprit des institutions (Paris: Flammarion, 1973)—seem agreed on the contradictory nature of absolutist attempts at juridical ‘centralization’.
An interesting example, with reference to the ‘droit d’aubaine’, the law regulating the status of foreigners, particularly with reference to the rights of inheritance, is presented by Peter Sahlins, Unnaturally French: Foreign Citizens in the Old Regime and After (Ithaca, NY: Cornell University Press, 2004).
This was generally how the term was understood in the period: ‘By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.’ Viscount Henry St. John Bolingbroke, Political Writings, ed. D. Armitage (Cambridge: CTHPT, 1997)
cited in Gordon S. Wood, ‘The American Revolution’, in The Cambridge History of Eighteenth Century Political Thought, ed. Mark Goldie and Robert Wokler (Cambridge, UK: Cambridge University Press, 2006).
Earlier one included the ‘indisponibilité de la courronne’ (which established the continuity of the monarchy) and the ‘inaliénabilité du domaine’ (which ensured the integrity of the monarchy’s territory). But these ‘fundamental laws’ originated in the writings the légistes of the sixteenth and early seventeenth centuries and their attempt to understand the monarchic state as being comprised of more than the person of the monarch. As such they did not refer explicitly to the Frankish invasions. By the eighteenth century the discussion of fundamental laws was, by contrast, very much tied to the question of origins. Blandine Kriegel, L’histoire à l’Age classique, vol. 4: La république incertaine (Paris: PUF, 1996), pp. 140–1.
This was the project of Jacob-Nicolas Moreau, and would be discontinued with the Revolution. Blandine Kriegel, L’histoire à l’Age classique: IV La république incertaine (Paris: PUF, 1996), p. 77.
Adam Smith, The Theory of Moral Sentiments, ed. D. D. Raphael and A. L. Macfie ***** (Indianapolis, IN: Liberty Fund, 1984), p. 230.
See, for example, Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995);
and Robert H. Jackson, Sovereignty: Evolution of an Idea (Cambridge: Polity Press, 2007).
Also the two articles I co-authored with Lorna Weir, ‘Politics and Sovereign Power: Considerations on Foucault’, European Journal of Social Theory, 9, pp. 443–465, 4 (2006) and ‘Sovereignty, Governance and the Political’, Thesis Eleven, 94, pp. 49–71, 1 (August, 2008).
‘Let us recall […] the most important characteristic of sovereignty. It results in an entirely secularized, profane conception of power. God is no longer considered the foundation and, thereby, principle of power, having been moved from the exterior to the interior, as it were. It is a matter therefore of an immanent conception of power [puissance] such that the latter finds in itself its own legitimacy and justification. The execution of power, that is, the exercise of its authority, depends on nothing other than itself. Sovereignty therefore requires absolute autonomy, both theoretical and practical.’ Gérard Mairet, ‘La génèse de l’État laique’ in Histoire des idéologies, vol. 2: De l’Église à l’État du IXe au XVIIe siècle, ed. François Châtelet (Paris: Hachette 1978), pp. 289–90 (my translation).
See Jean Ehrard, ‘La souveraineté’ in L’esprit des mots, ed. Jean Ehrard (Geneva: Droz, 1990), pp. 140–60;
C. Larrère, ‘Montesquieu: l’éclipse de la souveraineté’ in Penser la Souveraineté, ed. G. M. Cazzaniga and Y.-C. Zarka (Paris: Vrin, 2002), pp. 199–214; and Céline Spector, Montesquieu: Pouvoirs, richesses et sociétés, pp. 41–4.
In the Résumé to his course of 1954–55, he writes: ‘One is seeking here in the idea of institution a solution to the difficulties of the philosophy of consciousness. Before consciousness, there are only the objects constituted by it.’ And later: ‘One therefore understands by institution the events that endow an experience with durable dirnensions, in relation to which an entirely different set of experiences will make sense, and will form a thinkable sequence or history ….’ And in the notes to the course: ‘[it is a matter of an] inter-subjective or symbolic field, [that] of cultural objects, which is our milieu, our hinge, our joint—instead of the alternation subject-object.’ Maurice Merleau-Ponty, L’Institution* La passivité: Notes de cours au Collège de France (1954–55) (Paris: Éditions Belin, 2003), pp. 35 and 123–4.
Cited in Werner Stark, Montesquieu: Pioneer of the Sociology of Knowledge (Toronto: University of Toronto Press, 1961), p. 43.
According to James Moore, the ‘first publication in the English language to make use of the four stages theory was John Dalrymple’s An Essay towards a General History of Feudal Property in Great Britain, published in 1757.’ Dalrymple admits a particular debt to the unpublished papers of Lord Kames, while claiming that his work had been ‘revised by the greatest genius of our age, President Montesquieu’, without, however specifying what exactly these debts and revisions were. ‘Natural Rights in the Scottish Enlightenment’, in The Cambridge History of Eighteenth Century Political Thought, ed. Mark Goldie and Robert Wokler. Behind the four stages theory was a concern with different property regimes, and a critique of feudal property relations as inappropriate to a commercial society. Montesquieu is relatively unconcerned with modern property relations and does not treat feudal law as an obstacle. Concerning the Scottish Enlightenment and the four stages of society, see the works of Ronald L. Meek, ‘Smith, Turgot and the “Four Stages” Theory’, History of Political Economy, p. 3 (1970); Social Science and the Ignoble Savage (Cambridge: Cambridge University Press, 1976);
and Peter Stein, ‘The Four Stage Theory of the Development of Society’, in The Character and Influence of the Roman Civil Law: Historical Essays (London: Hambledon Press, 1988), pp. 395–409.
Otherwise the claim made by Peter Gay would be true: ‘The history first practiced by Montesquieu […] and finally christened “Theoretical or Conjectural History,” was sociology.’ The Enlightenment: An Interpretation, vol. I: The Rise of Modern Paganism (New York: Norton, 1966), p. 34.
For example, Elie Carcassonne, Montesquieu et le problème de la constitution française au XVIIIe siècle (Paris: PUF, 1926), Chapter 1; Althusser, Politics and History, pp. 97ff.; Pangle, Montesquieu’s Philosophy of Liberalism, pp. 294–5; Peter Gay, The Enlightenment: An Interpretation, vol. 2: The Science of Freedom, pp. 467–9.
I am considering only Montesquieu’s arguments against Boulainvilliers. A reading of Harold A. Ellis, Boulainvilliers and the French Monarchy: Aristocratic Politics in Early Eighteenth-Century France (Ithaca, NY: Cornell University Press, 1988) suggests that Boulainvillier’s positions were sometimes more nuanced than Montesquieu presents.
Michael Sonenscher speaks of a distinction between prince (the government) and state rather than between power and law. Though for reasons noted earlier I hesitate to use the term ‘state’ with reference to the ancien regime, the point remains substantially the same: in monarchies alone does power (the prince) have only an indirect influence on the mechanisms of distribution of wealth, landed property and rank. By contrast, the attempt to root the specificity of monarchies in a distinction between power rooted in the will of the living (force or virtue) and the will of the dead (as in monarchies) strikes me as more dubious, because it ‘freezes’ the law, whether in terms of the introduction of new laws by the monarch, or their registration by the parlements. Before the Deluge: Public Debt, Inequality and the Intellectual Origins of the French Revolution (Princeton, NJ: Princeton University Press, 2007), pp. 135–8 and 147.
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Singer, B.C.J. (2013). Power, Law and the Three Regimes: Political Bonds. In: Montesquieu and the Discovery of the Social. Palgrave Macmillan, London. https://doi.org/10.1057/9781137027702_2
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