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Montesquieus Definition Of Law Essay Research Paper

Montesquieu`s Definition Of Law Essay, Research Paper


The following was completed for a Political Thought and Theory Class in my


Senior Year of Highschool..my grade was an 85 Montesquieu: Definition of Law


Into the first three chapters of Book 1, The Spirit of Laws, Montesquieu


condensed a lifetime of thinking, not so much on law as what law is, (after all,


the work by Montesquieu is entitled The Spirit of Laws, not The Laws of the


Spirit). The definition of law provided to us by Montesquieu can be most clearly


identified as a series of relationships which are derived from the nature of


things; relationships varying not only among human beings, but animals and


thought. Background: Montesquieu, Charles-Louis de Secondatbaron de la Br?de et


de Born January 18, 1689, Montesquieu (Caption 1-1) belonged to an old family of


modest wealth that had been ennobled in the 16th century for services to the


crown. Charles-Louis studied at the faculty of law at the University of


Bordeaux, was graduated, and ventured out for experience in law. He married


Jeanne de Lartique and through marriage he became socially and financially


secure. He wrote many works pertaining to the lawfield (Encarta).


Montesquieu?s Definitions of Law ?Laws, in their most general signification,


are the necessary relations arising from the nature of things.? (Spirit)


Montesquieu in the first book would seem to be collating all that has been said


on the law into some complex equation, eliminating the common and arriving at


some simple solution. Thus, laws in the most general sense are the relationships


between things (all things) as the nature of things shows: the nature of things


seen, heard, and read. God isn?t seen nor heard, or read; still, he must have


his place, but not first in the order of the nature of things (Catholic).


?There is, then, a prime reason; and laws are the relations subsisting between


it and different beings, and the relations of these to one another.? (Spirit)


But we have overlooked a key word kept by Montesquieu in his most concentrated


definition: laws are not only relationships, they are necessary relationships.


Here grows a somewhat ambiguous question. Why are they necessary? They are not


necessary due to a decree of some sort, but become natural; thus the term


?Prime Reason. (Loy 89)? ?God is related to the universe, as Creator and


Preserver; the laws by which He created all things are those by which He


preserves them. He acts according to these rules, because He knows them; He


knows them, because He made them; and He made them, because they are in relation


to His wisdom and power.? (Spirit) It is true that Montesquieu seems to waver


between ?natural law? and ?laws of nature? as expressions. It is also


true that he defines laws of nature as those that derive solely from our beings


(Loy 90). ?By the allurement of pleasure they preserve the individual, and by


the same allurement they preserve their species. They have natural laws, because


they are united by sensation; positive laws they have none, because they are not


connected by knowledge.? (Spirit) Animals however, are without knowledge but


have some natural laws. Although Montesquieu does spare us the


seventeenth-century discussion

of pre-social man, he has not escaped certain


confusions in regards to human reason and Prime Reason (Chan). ?Before there


were intelligent beings, laws were possible; they had therefore possible


relations, and consequently possible laws. Before laws were made, there were


relations of possible justice. To say that there is nothing just or unjust but


what is commanded or forbidden by positive laws, is the same as saying that


before the describing of a circle all the radii were not equal.? (Spirit) It


is also in his discussion of natural law that Montesquieu comes to the


conclusion that after God comes first a state of peace. For Montesquieu, peace


is the first law of nature. Following natural laws are nourishment, sex, and


society (Chan). ?But the intelligent world is far from being so well governed


as the physical. For though the former has also its laws, which of their own


nature are invariable, it does not conform to them so exactly as the physical


world.? (Spirit) Once the natural law is done with (and Montesquieu started


there for many reasons), one is on relatively clearer, emperic grounds with the


positive laws. International law, political law, civil law: nothing in


Montesquieu?s estimation could be more easily grasped from looking at man?s


past. When Montesquieu makes his famous statement that law is human reason, one


takes note he is writing under the heading ?positive law. (Loy 91)? ?Law,


in general, is human reason insofar as it governs all the nations of earth.?


Conclusion: All of this, although not original, is Montesquieu?s obvious


contribution to his science of laws. His whole attraction to his subject


(whether conscious or not), his role in intellectual history, his genius, were


involved with seeing everything through both kinds of Nature (Loy 92). Through


metaphysics and science, through moral and physical causes, through Philosophy


and History, through absolute and relative, through what ought to be and what is


the spirit guiding human social life on this earth is, its existence and its


essence, his goal was simply his honesty and seen in historical perspective, his


great contribution to the Enlightenment and the Social Sciences. The Spirit of


Laws gives us the ability to share in Montesquieu?s most logical and awarded


analysis of what laws are; a series of relationships which are derived from the


nature of things; relationships varying not only among human beings, but animals


and thought. By understanding first what law is, we may better strive towards


improved legal systems and society?s perfection.


The Catholic Encyclopedia. ?Charles-Louise de Secondat, Baron de


Montesquieu.? http://www.newadvent.org/Cathen/10536a.htm (retrieved 27 April


2000) Chan, Jannie C. ?Montesquieu?s Political Theory: Truth or Fiction??


http://www.nassaulib.org/professors/JannieChanSOL.htm (retrieved 3 May 2000)


Encarta Learning Zone. ?Montesquieu, Charles Louis de Secondat, Baron de la


Brede et de.? http://encarta.masn.com/find/concise.asp?z=2&+i03BF9000


(retrieved 3 May 2000) Loy, Robert J. Montesquieu. New York: Twayne Publishers,


1968 Montesquieu, Charles-Louis de Secondat. The Spirit of Laws. http://www.taxexemptlaw.com/library/sol-01.shtml


(retrieved 24 May 2000)

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