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January 30, 2007
Montesquieu's influence on Madison and the American founders, particularly evident in the theory of separation of powers that informs the United States Constitution, is well noted. In Federalist Papers, No. 10 Madison's key question is how to eliminate the negative effects of faction or interest. His answer is the general application of the checks and balances principle, which is now central to the American constitutional system. Madison emphasizes that the greater size of the federated Union will allow for more effective governments than were the states to remain more independent. So we have a republic of diverse interests, which was contested by the Anti-Federalists who opposed the union. Secondly, Montesquieu was the first theorist to propose an important judicial branch and function institutionally discrete from the legislative and executive powers. Locke, in contrast to Montesquieu, considered judicial power to be a mere sub-set and institutional sub-division of legislative power. The Framers of the U.S. Constitution followed Montesquieu, rather than Locke, in structuring the branches of the federal government; and the door is opened to the rival conceptions of the separation of powers in constitutional interpretation.
What then of Montesquieu? How does he fit into the Hobbes/Locke trajectory in modernity? Does Montesquieu reject the social contract theory of politics most often associated like Leo Strauss? Or does Montesquieu rework it? If so, then how does Montesquieu address the Lockean attempt to found the state upon the securement pre-given natural rights to the pursuit of individual interests and happiness?
Montesquieu most agrees with Hobbes in a critique of natural law as understood in the tradition. Montesquieu, like Hobbes, rejects the tradition as containing an inadequate understanding of nature, a rejection in both thinkers clearly associated with the rejection of teleology within the new science and philosophy of the seventeenth century.
Montesquieu argues that Hobbes misunderstands human nature as much as the ancients, for he fails to appreciate the "flexible" or, the "historical" character of humanity. Montesquieu also disagrees with Hobbes, and follows Locke on the true normative foundation--natural right. He does not see natural right as Hobbes does, as "a right of every man to everything, including one another's body," or as a simple liberty. He rather follows Locke in grasping natural rights as self-ownership and thus as containing within it limitations such that no one has a natural right to "another's body," or goods.
In Locke, self-ownership flowers into the rights of life, liberty and estate, and the proper or legitimate end of government is preservation of the objects of these rights. In Montesquieu self-ownership more simply leads to the standard of liberty: the rational or good order is the one that is free. Montequieu differs somewhat from Locke in the emphasis on liberty (rather than rights-securing) and on liberty as security, or the opinion of security. Montesquieu on the whole subjectivizes the criteria of political right. The good order is not so much a certain kind of order per se, but the order that produces a certain subjective state in the citizens.
Montesquieu's conception of the function of courts was as promoters of moderation and liberty under the separation of powers. His central notion is that an independent judicial branch, as a part of the separation of powers, is the primary institutional means of promoting a complex of values, including moderation, gradual reform, liberty, and individual tranquility, within the constitutional design. An independent judiciary is specially suited to perform this incrementalist “moderating” or “liberalizing” role.a properly structured government will contain an independent judicial branch designed to exercise a moderating power for incremental liberal legal reform via humane interpretation of the law. Indeed, given the traditionalist and aristocratic character of the judiciary, this authority can be exercised in a subtle and unobtrusive or “cloaked” fashion, allowing the courts to “imperceptibly mitigate the severity of the law,” accomplishing reforms while causing minimal political disruption and without provoking a political backlash
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