Law and Natural Rights:
Montesquieu and Rousseau
Dr John Snape,
Associate Professor, School of Law
Mme Geoffrin’s ‘Salon and Times’
(Darach Sanfey found this)
The Questions
• Since Ancient Greece, people have been obsessed by
variants of one question - how can we best live
together?
• Their answers have always been about law – create
laws that best promote values held dear (religious,
ideological)
• Pre-Enlightenment thought looks to God or gods
• Enlightenment thought looks to mankind - preoccupied
with how we discern those values - how can we create
the laws that realise them? By a ‘science of politics,’ of
‘political law’, of ‘public law’, of a ‘science of legislation’
Two Sorts of Answer
• One type of answer – ‘scientifically’ – what are men
and women really like? What laws best address their
true nature?
– Charles de Secondat, Baron de Montesquieu (1689-1755)
• Separation of Powers – ésprit général
• Less all-embracing
• Another type of answer – ‘speculatively’ – knowing
what we know about people, how could laws be made
legitimate?
– Jean-Jacques Rousseau (1712-1778)
• General will – sovereignty of the people
• More all-embracing
Rousseau (1712-1778)
Discourse: ‘Sur l’origine
et les fondements de
l’inégalité’ (Dijon,
1755)
Du Contrat Social
(Amsterdam, 1762)
Émile, ou de
l’éducation (Holland
and France, 1762)
Montesquieu (1689-1755)
Lettres persanes
(Anon, 1721)
Réflexions sur la
Monarchie
universelle en
Europe (1734)
De l’ésprit des lois
(Anon, Switzerland,
1748)
Montesquieu and Rousseau (1)
• Montesquieu deploys new version of natural law
(sc ‘law of nature’) to state what laws best
address true nature of men and women
– Laws in general (he says) are ‘the necessary relations
arising from the nature of things’ (EdL, I.i)
• Rousseau largely rejects natural law in favour of
the customs of people, all natural rights being
surrendered on man’s entry into political order
– Laws are “Nothing but the declaration of the general will”
– Can there be ‘any reliable and legitimate rule … taking men
as they are, and laws as they can be’? (CS, I)
Montesquieu and Rousseau (2)
• Backgrounds and mentalities of each man as different
as possible to be in eighteenth century Europe
• Montesquieu - a nobleman (de la robe) - a former
judge, président à mortier (hence ‘President M’): a
cautious, empirical, reasoner - privileged
• Rousseau a ‘Citizen of Geneva’ – son of a philosophical
clock-maker, learned in early-modern political thought
– not at all privileged!
• Views that each developed expressed this difference in
backgrounds and outlooks – Montesquieu occluded –
Rousseau strident and direct: ‘Man was born free, and
everywhere he is in chains’ (CS, I.i).
Natural Law (1)
• Each thinker engaged in different ways with the claims
of natural law – the law of nature
• For centuries, in the West, this had been defined by St
Augustine (354-430CE) and by St Thomas Aquinas
(c1225-1274CE) – about the soul and reaching heaven
• Thinkers such as Hugo Grotius (1583-1645) and John
Locke (1632-1704) had sought to redefine natural law –
more about mankind, less about God
• To the Lockeian mind, precepts of natural law had to be
formulated by reference to empirical observation, not
(mainly) the transcendence of the human soul –
nonetheless, natural law ‘conservative’ (Courtney)
Natural Law (2)
• Even as reformulated, there are problems. Natural law
– is deterministic (‘Whatever is, is right’ – Alexander Pope)
– might imply there can never be real change
• Montesquieu and Rousseau respond to these problems in different
ways
– Montesquieu by a (Lockeian) reformulation of natural law, in
terms of climate and regimes
• Esprit des lois (1748) – explanation of why positive laws as
they are (building both on Grotius and Samuel von Pufendorf
(1632-1694)
– Rousseau by (largely) rejecting natural law and supplanting it
with ‘public reason’ and societal customs, beliefs, morality
• Du contrat social (1762) – argument for a better political
society than the reality of European states
Natural Rights
• Men and women ‘born free’ and good, with ‘natural rights’
(‘inalienable rights’) - radical, not conservative
• Issue is whether can reserve natural rights on entering
political society –Yes, Montesquieu
• No, Rousseau, Hobbes. Must all be surrendered to the state
• Lying, cheating, killing, etc did not apply in the state of
nature because no property (contra Hobbes, Montesquieu)
– but ‘we should not expect anything different from the
noblesse de robe’ (Loughlin, p 138, of Rousseau’s view)
• When natural rights become civil rights, justice is
substituted for instinct (or ‘pity’) in the state of nature –
effect of politics is therefore ‘utterly transformative’
(Loughlin, p 345)
Separation of Powers
• Montesquieu – men are fearful - must be checks and
balances in the state (see also Locke)
– legislative and executive (plus judicial)
– a matter of empirical observation – based on
Montesquieu’s view of the English constitution (a
commercial republic disguised as a monarchy) – English a
people gripped by anxiety
• Tyranny - the failure to use power for the public good
– what Montesquieu really worried about is despotism, or
government by fear
– Rousseau – men should be free – necessary to separate
will from force – legislative from executive and two make
sure two operate together
The General Will (1)
• Rousseau, rather than Montesquieu
–
–
–
–
We, the people, can decide what to do
By a majority
Directly, not through representatives
By a size of majority according to nature of issue
• Will = sovereignty
– Not about a sovereign
– Not, as such, about the state
– About the surrender of individual rights to the general
will
• Not natural right but political right
The General Will (2)
• Rather than the general will, Montesquieu has
‘the general spirit’ (l’esprit général), consisting of
seven causes, all balanced, all requiring the
attention both of legislator and historian:
–
–
–
–
–
–
–
climate (the only physical cause);
religion;
laws;
‘maxims of government’;
past examples;
customs; and
manners
Liberty
• For Montesquieu, about security, especially of property
– ‘Freedom from fear’
– Rule of law
– Not about surrender of natural rights to general will
• Rousseau – about being free within political order – an exchange of
natural freedom for political freedom – obedience to selfprescribed law – civil freedom unlike natural freedom constrained
by general will (see Loughlin, pp 113-5): ‘if anyone refuses to obey
the general will he will be compelled to do so by the whole body;
which means nothing else than that he will be forced to be free’ (CS
I, vi)
• ‘State of Nature’ v Political order – inequality of state of
nature ‘institutionalized’ in political order (Brooks)
• Only a lawgiver is wise enough to found a political order
‘Influence’ and Reception
• In France
– Montesquieu – read by Rousseau, by later philosophers and by French
revolutionaries of 1789-1799
– Rousseau – likewise as regards revolutionaries - Robespierre (17581794) an avid early reader (as too of Montesquieu)
• In England
– Montesquieu – very popular among elite, even ‘fashionable’
(Langford) – Edmund Burke (1729-97) a great admirer
– Rousseau – popular with Radicals – eg Thomas Paine (1737-1809) –
but conservative Samuel Johnson (1709-1784) thought he was a ‘bad
man’, along with Rousseau’s (one-time) friend David Hume (17111776)
• In America
– Montesquieu key to framers of US Constitution – Federalist Papers
(Hamilton, Madison)
Rousseau on Montesquieu
• Rousseau in Émile:
‘The science of politics is and probably always will be unknown. […]
In modern times the only man who could have created this vast
and useless science was the illustrious Montesquieu. But he was
not concerned with the principles of political law; he was content
to deal with the positive laws of settled governments; and nothing
could be more different than these two branches of study.’ (E, pp
421-2)
• But Rousseau like Montesquieu in some ways – both think
custom important – both think such a concept as natural
right
• Whether two men met ‘quite likely’ but not certain –
Rousseau report’s Diderot’s presence at Montesquieu’s
funeral in Paris (Shackleton, p 37) – personal knowledge?
Concluding Thoughts (1)
• Difference of perspective between Montesquieu and
Rousseau:
– Empirical (Montesquieu) – ‘sociology’ of positive laws
– Idealistic (Rousseau) – about deliberative political
philosophy – ‘What’s the right thing to do’? (Sandel)
• History and nature
– Montesquieu cautious about history but nature rethought
– History an aspect of the general will for Rousseau
• Moderate and radical
– Moderate (Montesquieu)
– Radical (Rousseau) – Robespierre, above
Concluding Thoughts (2)
• Montesquieu
– Influential early on in economics and commerce (see
Céline Spector’s work)
– Implies small government
– Regarded as great liberal thinker
• Rousseau
– About politics, ethics, deliberation
– Suggests idea of big government
– At best an ambiguous liberal – libertarians hate him!
• Neither Montesquieu or Rousseau atheists – both still
have some idea of God – envisage, though, a distinct
place for the Deity in human affairs
Some Further Reading
• Rousseau, Social Contract (CS), Book I; Émile, esp Bk V (‘Of
Travel’); Montesquieu, Spirit of Laws, Bks I, VI and Bk XIX,
chs 4, 27
• Secondary: Martin Loughlin, Foundations of Public Law
(Oxford, 2010) pp 112-9, 137-9, 343-6; R Wokler, Rousseau:
A Very Short Introduction (Oxford, 2001); N Dent, Rousseau
(Abingdon, 2005); L Damrosch, Jean-Jacques RousseauRestless Genius (New York, 2005); R Shackleton,
Montesquieu, A Critical Biography (Oxford, 1961); C
Courtney, Montesquieu and Burke (Oxford, 1963)C Spector,
‘Honor, Interest, Virtue: The Affective Foundations of the
Political in The Spirit of Laws’ in Montesquieu and his
Legacy (RE Kingston (ed)) (Albany, 2009); T Brooks,
‘Introduction’ in Rousseau and Law (Aldershot, 2005)