MONTESQUIEU'S IDEA OF JUSTICE

ARCHIVES INTERNATIONALES D'HISTOIRE DES IDEES

INTERNATIONAL ARCHIVES OF THE HISTORY OF IDEAS

79

SHEILA MARY MASON

MONTESQUIEU'S IDEA OF JUSTICE

Directors: P. Dibon (Paris) and R. Popkin (Washington Univ., St. Louis) Editorial Board: J. Aubin (Paris); J. Collins (St. Louis Univ.); P. Costabel (Paris); A. Crombie (Oxford); I. Dambska (Cracow); H. de la Fontaine-Verwey (Amsterdam); H. Gadamer (Heidelberg); H. Gouhier (Paris); T. Gregory (Rome); T. E. Jessop (Hull); P. O. Kristeller (Columbia Univ.); Elisabeth Labrousse (Paris); A. Lossky (Los Angeles); S. Lindroth (Upsala);J. Orcibal (Paris); I. S. Revaht (Paris) ;J. Roger (Paris); H. Rowen (Rutgers Univ., N.J.); C. B. Schmitt (Warburg Institute; London); G. Sebba (Emory

Univ., Atlanta); R. Shackleton (Oxford); J. Tans (Groningen), G. Tonelli (Binghamton, N.Y.).

MONTESQUIEU'S IDEA

OF JUSTICE

by

SHEILA MAR Y MASON

• Springer-Science+ Business Media, B. V

© 1975 Springer Science+Business Media Dordrecht Originally published by Martinus Nijhoff, The Hague, Netherlands

All rights reserved, including the right to translate or to

reproduce this book or parts thereof in any form

ISBN 978-94-010-1622-3 ISBN 978-94-010-1620-9 (eBook)

DOI 10.1007/978-94-010-1620-9

PREFACE

Part One of Montesquieu's Idea of Justice comprises a survey of the currency in philosophical, ethical and aesthetic debate during the second half of the 17th century of the terms rapport and convenance, which are central to the enigmatic definition given to justice by Mon­tesquieu in Lettres Persanes LXXXllI. In this survey, attention is concen­trated on the way in which the connotations of these terms fluctuate with the divergent development of the methodological and speculative outgrowths of Cartesian ism into two schools of thought, materialist and idealist, often widely at variance in their views of the nature and orga­nization of the universe.

In Part Two, Montesquieu's definition of justice is set against this background, whose doctrinal conflicts, because of the characteristic as­sociations of its key terms, it may be taken to reflect, just as it may be held to epitomize, by virtue of its elaboration in the opening chapter of De l' Esprit des Lois and its close terminological affinities with the defini­tion of law there given, an undoubtedly related conflict between the implications of causal determinism and the aspirations of idealist meta­physics surviving at the heart of Montesquieu's outlook, and, remaining unresolved, often said to impair the coherence if not the validity of his theory of society.

The reconstitution of the philosophical matrix of the definition which is now undertaken, drawing largely on the fragmentary evidence of Montesquieu's notebooks and his minor works, demonstrates, how­ever, by clarifying his intellectual allegiances and his methodological procedures, that, far from internal inconsistency, his idea of justice represents a fruitful interpenetration of the philosophical currents of his time. The union within it of the epistemological assumptions of contem­porary empiricism contained in the notion of relationship, with the transcendent, if elusive, ideal of fitness, summarizes in a single formula

his double achievement of dignifying his scientific thesis with serious moral aspirations, while at the same time founding this idealism on a solid empirical groundwork. Montesquieu's idea of justice holds the key to establishing the unity of his thought and also offers his posterity an escape from the blind alley of determinism.

In preparing this work, which began as a thesis for the degree of Doctor of Philosophy approved by the University of London, I have been much helped by the encouragement and advice of friends and colleagues, particularly of Dr. Pauline Smith of Hull. lowe a special debt to Professor J. S. Spink for his generous assistance and his un­failing patience.

TABLE OF CONTENTS

Preface

Introduction

PART I

MONTESQUIEU'S DEFINITION OF JUSTICE: PRECURSORS AND PARALLELS

1. Lexicographers II. Metaphysicians

III. Moralists and Others IV. English Thinkers V. Aesthetic Ideas

Conclusion

PART II

MONTESQUIEU'S IDEA OF JUSTICE: ITS BACKGROUND,

MEANING AND SIGNIFICANCE

VII

IX

3 8

33 67 88

107

1. Biographical Origins 113 II. Towards a Metaphysical Framework 143

III. Justice and Law: the Significance of De l'Esprit des Lois, Bk. I 183 IV. Justice and Law: an Alliance of Science and Morals 210

V. Justice as a "Leitmotif" 254 Conclusion 292

Appendix. Montesquieu's Aesthetic Theories 295

Bibliography 306

Index 316

INTRODUCTION

In Letter LXXXIII of the Lettres Persanes Montesquieu sets out to define justice:

"La justice est un rapport de convenance, qui se trouve reellement entre deux choses: ce rapport est toujours Ie meme, quelque etre qui Ie considere, soit que ce soit dieu, soit que ce soit un ange, ou enfin que ce soit un hom­me."l

Justice is a relationship of suitability actually existing between two things, a relationship which remains the same whoever considers it, whether God, angel or man.

Justice, a relationship of suitability existing between things? It is diffi­cult to conceive of an odder pronouncement from a trained and prac­tising magistrate, and even odder to discover it in the pages of a work largely devoted to the comparative study of morals and manners. The imposing abstractions of Letter LxxxnI, the soaring metaphysical vision of a necessary geometrical structure of moral relationships linking all beings together, are a far cry from the homespun didacticism of the Fable of the Troglodytes, the allegorical but transparently simple and straightforward answer to Mirza's enquiries into Usbek's thinking on the quality of justice in men. Usbek has now obviously progressed be­yond mere human virtue to the contemplation of a justice, which ifit is still a quality seems to invest the whole nature of things; but how or why he does not tell us. The Troglodytes' justice consists plainly enough in patriotism and mutual consideration, while the what and wherefore of a relationship of suitability are left disquietingly vague. In De I' Es­prit des Lois Montesquieu forestalls complaints on a similar score:

"il ne faut pas toujours tellement epuiser un sujet, qu'on ne laisse rien a faire au lecteur." 2

1 Nagel I, p. 169; Pleiade I, p. 256. 2 Bk. XI, ch. 20: Nagel I, p. 249; Pleiade II, p. 430.

x INTRODUCTION

It is up to us to fathom Usbek's words and to put his theory into per­spective. To do so we must not only investigate the philosophical and moral traditions and related terminology which could have been fa­miliar territory for Montesquieu, but also piece together from the whole body of his works the incomplete and scattered jigsaw puzzle which represents his personal philosophy.

The core of Montesquieu's definition of justice is made up of two elements: the idea of relationship, and the idea of suitability, of which the first possesses structural and cognitive associations, and the second functions descriptively or normatively depending on whichever of two broad philosophical streams, naturalistic or idealistic, is selected as the framework of Montesquieu's thinking. Both elements have a special significance in the context of the history of ideas during the 17th and early 18th centuries, but the origin of their association with justice can be traced back at the same time to some of the earliest Greek thinking on the subject. 3

Using the analogy of mathematical correspondence between opposite terms, the Pythagoreans produced a theory of limit and proportion in society, thereby moving towards a more refined definition of the order­ed relationship between persons that had always been implied in the idea of requital central to the primitive law oftalion. In Book V of the Ethics Aristotle elaborated and systematized the Pythagorean theory, again drawing a parallel with mathematics. The starting point of his discussion is justice in its general aspect, justice as the sum of human virtue, defined as obedience in every respect to the laws of society. He soon passes to justice in its particular distributive and corrective appli­cations, reaching the conclusion that justice is response to the aware­ness of proportion in human relationships, a proportion which reflects the degrees of merit in each party. There is no indication in the Ethics, however, that such a proportion is necessary or essential in the sense that it corresponds to the pre-ordained order of things. On the contrary, Aristotle emphasizes that men commonly understand a variety of things when they speak of merit, and seems to consider that differences of merit have no qualitative significance, only quantitative:

"Justice is therefore a sort of proportion; for proportion is not a property of numerical quantity only, but of quantity in general ... "4

3 See G. del Vecchio, Justice: an Historical and Philosophical Essay, Edinburgh University Press, 1952.

4 Op. cit., Bk. V, ch. 3; translated by H. Rackham, London, Loeb series, 1926, p. 269.

INTRODUCTION XI

One has to look elsewhere, to the Rhetorica, for the association of justice with a principle of universal validity:

"In fact, there is a general idea of just and unjust in accordance with nature, as all men in a manner divine, even if there is neither communica­tion nor agreement between them. This is what Antigone in Sophocles evidently means, when she declares that it is just, though forbidden, to bury Polynices, as being naturally just .... And as Empedocles says in regard to not killing that which has life, for this is not right for some and wrong for others. 'But a universal precept, which extends without break throughout the wide ruling sky and the boundless earth'." 5

and the precise metaphysical significance of this principle in the wider framework of Aristotelian thought is a matter for speculation in view of his general opposition to Platonic idealism.

As far as the strictly inter-personal bearing of justice is concerned, the Scholastics added little to Aristotle. Aquinas contents himself in the Summa Theologica with a generalized restatement of the idea that it ex­presses proportion:

"(Justitia) importat aequalitatem quamdam, ut ipsum nomen demonstrat: dicuntur enim vulgariter ea quae adequantur, justari." 6

However they were naturally concerned to endow their theory of jus­tice with the metaphysical dimension lacking in the Master. The pro­portion which justice expresses had for them a significance beyond mere quantitative distribution of virtue in the social sphere, for it re­flected the operation of a transcendent principle. This they represented as the expression and fulfilment of a transcendent and omnipotent will, in which justice was fused with wisdom, and goodness with pity:

"Impossibile est Deum velIe nisi quod ratio suae sapientiae habet. Quae quidem est sicut lex justitiae, secundum quam ejus voluntas recta et justa est. Unde quod secundum suam voluntatem facit, juste facit; sicut et nos quod secundum legem facimus, juste facimus. Sed nos quidem secundum legem alicujus superioris, Deus autem sibi ipsi est lex." 7

Linking justice with such a metaphysical principle opened the way for the kind of definition which Montesquieu was to produce. Once the nature of things is seen to he clearly determined by an omnipotent and omniscient force, then one can begin to represent its moral structure in terms of relationships of suitability which actually exist between things.

6 Rhetorica, 1373 b.; London, Loeb series, 1926, pp. 139-141. 6 Op. cit., IIa, 2ae, Quaest. 57, Art. Ie. 7 Ibid., la, Quaest. 21, Art. I, ad. 2.

XII INTRODUCTION

Such relationships are so described because they conform to the norm fixed by transcendent authority.

This is not to say that the large dose of theology which the Scholastics injected into moral thinking immobilized the vigorously positivist strain of juridical theory cultivated by Aristotle. On the contrary, the definitive form that it received at the professionally experienced hands of Roman jurisconsults passed unchanged into the mainstream of Euro­pean culture. Its basic formula:

"Justitia est constans et perpetua voluntas suum cuique tribuendi,"

remains still today the prototype of most dictionary definitions for example.

Moreover, scepticism towards the universalist doctrine of natural justice which usually accompanied metaphysical conceptions of its source constituted an equally resilient tradition, endorsed by believers and non-believers alike. In the 16th century Thrasymachus is resur­rected by Montaigne in the Essais,8 and nearer to Montesquieu's day, by Pascal in his Pensees:

"Sur quoi fondera-t-ill'economie du monde qu'il veut gouverner? Sera-ce sur la justice? il l'ignore. Certainement s'it la connaissait il n'aurait pas etabli cette maxime, la plus generale de toutes celles qui sont parmi les hommes, que chacun suive les moeurs de son pays. L'eclat de la veritable equite aurait assujetti tous les peuples. Et les iegislateurs n'auraient pas pris pour modele, au lieu de cette justice constante, les fantaisies et les caprices des perses et allemands. On la verrait plantee par tous les etats du monde, et dans tous les temps, au lieu qu'on ne voit rien de juste ou d'injuste qui ne change de qualite en changeant de c1imat, trois degres d'elevation du pole renversent toute la jurisprudence, un meridien decide de la verite. En peu d'annees de possession les lois fondamentales changent, Ie droit a ses epoques, l'entree de Saturne au Lion nous marque l'origine d'un tel crime. Plaisante justice qu'une riviere borne. Verite au-dec;a des Pyrenees, erreur au-delft." 9

Pascal, it is true, not least in his attitude to reason, swam against the tide of the 17th century, a time when the human mind began to assert its self-sufficiency and its independence of divine patronage and guid­ance in such fields of knowledge as politics and jurisprudence as well as in the physical sciences. Descartes provided it not only with critical weapons for use against authority, but also with a general method suit­able for all kinds of research, and the means by which a whole body of rational philosophy embracing mathematics, the natural sciences and

8 In Book III, ch. 13, De I'Experience. 9 Pensees 294 (Brunschvicg numeration), editions du Seuil, Paris, 1962, p. 63.

INTRODUCTION XIII

metaphysics could be constituted. Mathematics provided him with the clue to this general method: he perceived that science in general could be approached in a similar way as a study of the relationships between things. BailIet, his biographer, recounts how he made his discovery:

" ... il abandonna l'etude particuliere de l'arithmetique et de la geometrie, pour se donner tout entier a la recherche de cette science generale, mais vraie et infaillible, que les Grecs ont nommee judicieusement mathesis ... et ... il jugea qu'il y avait une science generale destinee a expliquer toutes les questions que l'on pouvait faire touchant les rapports, les proportions et les mesures, en les considerant comme detachees de toute matiere, et que cette science generale pouvait a tres juste titre porter Ie nom de matMmatique universelle, puisqu'elle renferme tout ce qui peut faire meriter ce nom de science et de mathematique particulier aux autres connaissances." 10

The idea of a universal algebra was first expressed in the Regulae ad Di­rectionem Ingenii, written about 1628,11 but Descartes comments upon it directly in the better known Discours de la Methode:

"Mais ce qui me contentait Ie plus de cette methode etait que, par elle j'etais assure d'user en tout de ma raison, sinon parfaitement, au moins Ie mieux qu'il rut en mon pouvoir: outre que je sentais, en la pratiquant, que mon esprit s'accoutumait peu a peu a concevoir plus nettement et plus distinctement ses objets; et que, ne l'ayant point assujetti a aucune matiere particuliere, je me promettais de l'appliquer aussi utiIement aUX difficultes des autres sciences que j'avais fait a celles de l'algebre." 12

From this insight combined with the application of the criterion of evidence, drawn also from mathematics and reinforced by the experience of the cogito, Descartes was able to construct a new and purely rational explanation of the physical world. It is true that he did not replace analytical and deductive processes by more empirical procedures, though he was prepared to experiment in order to discover the ques­tions that needed to be answered. He continued moreover to subordi­nate the natural sciences to metaphysics, in which many arbitrary principles went unquestioned; but the first and greatest step had been taken.

It was in the same spirit of pioneering rationalism that Hugo Grotius asserted a few years prior to the Regulae in the preface to his De Jure Belli ac Pacis that the propositions of natural law would retain their

10 La Vie de M. Descartes, Paris, 1691; Part I, ch. 2, sec. 6, p. 114. 11 The Regulae were first published in the Opuscula posthlJma physica et mathemalica, Amster­

dam, 1701. 12 Op. cit., (1637), Part II; Paris, Garnier, 1960, p. 52.

XIV INTRODUCTION

validity even if we were to assume that there was no God,13 an assertion which could be read as a premature reply to Pascal's scepticism about justice. And Grotius's substitution of the authority of reason as revealed in natural law for the authority of divine command as expressed in re­velation and orthodox tradition, together with Descartes's contribution to the philosophy and techniques of science itself, hold two of the keys to the genesis of Montesquieu's definition of justice. For the essence of Cartesian method was the application of the idea that all knowledge consists in the perception of relationships. Since there was never any doubt that the form of intelligence corresponded exactly to the nature of reality, it was permissible, not to say perfectly logical to represent its structure in terms of relationships also. Thus when Montesquieu defines justice as "un rapport de convenance qui se trouve reellement entre deux choses," he is treating it as a structural element of moral reality, and could equally be signalling the belief that ethics can be subjected to a scientific approach as much as physics, in anticipation of his ap­proach to concrete social phenomena in the Lois, where he actually produces a science of society. When he qualifies his definition, adding "ce rapport est toujours Ie meme, quelque etre qui Ie considere, soit que ce soit dieu, soit que ce soit un ange, ou enfin que ce soit un homme," he is treading in the steps of Grotius by suggesting that the principle which informs the moral structure of the world, which determines the fitness of relationships of justice, while undoubtedly transcendent, is nevertheless in some way independent of the arbitrary will of any super­natural or intelligent being. The relationships of justice are unalterable by God, men or angels.

But the nature of their independence is never precisely indicated, which raises the possibility of a third key to the significance of Montes­quieu's definition. Since God is, as it were, made to stand down, and the relationships of justice are described as really existing between things, it could be that Montesquieu was putting into necessarily ambi­guous words a theory inspired by the kind of rationalistic materialism usually attributed to Spinoza. The suitability of the relationships be­tween things could amount to nothing more than the compossibility of phenomena which a doctrine of reason immanent in nature implies.

The viability of this particular interpretation is one of the things which a study of the significance attached in the works of contempora­ries and near contemporaries to the specialized vocabulary used by

13 The work was first published in Paris in 1625.

INTRODUCTION xv

Montesquieu in his definition, in conjunction with a reconstruction, as far as surviving texts allow, of his personal philosophy, should help to decide. More generally it is hoped that this double investigation, in showing the extent to which Montesquieu's ideas about justice crystal­ize the moral thought of a generation, will also reveal how far they surpass it.