1. Law and Natural Rights: Montesquieu and Rousseau
Dr John Snape,
Associate Professor, School of Law,
5 December 2016

2. Mme Geoffrin’s ‘Salon and Times’ (Darach Sanfey found this)

3. 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’

4. 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 ( )
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 ( )
General will – sovereignty of the people
More all-embracing

5. Rousseau ( )
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)

6. Montesquieu (1689-1755) Lettres persanes (Anon, 1721)
Réflexions sur la Monarchie universelle en Europe (1734)
De l’ésprit des lois (Anon, Switzerland, 1748)

7. 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)

8. 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).

9. 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 ( CE) and by St Thomas Aquinas (c CE) – about the soul and reaching heaven
Thinkers such as Hugo Grotius ( ) and John Locke ( ) 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)

10. 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 ( )
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

11. 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)

12. 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

13. 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

14. 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

15. 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 self-prescribed 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

16. ‘Influence’ and Reception
In France
Montesquieu – read by Rousseau, by later philosophers and by French revolutionaries of
Rousseau – likewise as regards revolutionaries - Robespierre ( ) an avid early reader (as too of Montesquieu)
In England
Montesquieu – very popular among elite, even ‘fashionable’ (Langford) – Edmund Burke ( ) a great admirer
Rousseau – popular with Radicals – eg Thomas Paine ( ) – but conservative Samuel Johnson ( ) thought he was a ‘bad man’, along with Rousseau’s (one-time) friend David Hume ( )
In America
Montesquieu key to framers of US Constitution – Federalist Papers (Hamilton, Madison)

17. 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?

18. 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

19. 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

20. 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 Rousseau- Restless 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)