Montesquieu & the separation of powers

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Montesquieu - Separation of powers

Résumé du document

Past and future have in common that the latter is as uncertain as the former. Indeed, there is no such thing as malleable as human memory. More than how things really were, one often only retains what he wanted to. The problem is that as a consequence there is sometimes a certain discrepancy between what I think I know and what I really know. For some authors, this has been a real issue. It is after all easy to credit an idea to someone when already centuries have passed. That has been the case for the French philosopher Charles-Louis de Secondat, also known as Montesquieu.

Montesquieu is mostly well known for two of his works: the "Lettres Persanes" and "L'esprit des Lois", in which he developed the famous idea of the separation of powers. Admittedly, Montesquieu's paternity on the theory is indisputable. He may not have been the first to put it into words, with Aristotle having basically stated the same idea two thousands years earlier, but he is the one who embodied the theory in a constitutional government guaranteeing the rights of the individuals. But if the concepts of Montesquieu have been perfectly understood by the American founders, it is mostly not the case nowadays.

The twentieth century has denatured the theory of the separation of powers, the ideas of the author having been greatly misunderstood. Indeed, at some point, Montesquieu had been classified as the father of modern constitutionalism, arguing for a hermetic division of powers. He was nearly classified as a defender of democracy in public law textbooks. Even more, authors have sometimes qualified Montesquieu as idealist, his so-called theory being unrealistic.

Extraits

[...] Vol.4, pp.177-96. - Krause, S. (2000). Spirit of Separate powers in Montesquieu' in The Review of Politics, Vol pp.231-65. - Montesquieu (1758). De l'esprit des Lois. http://www.constitution.org/cm/sol-02.htm - Stewart, I. (2002). ‘Montesquieu in England: his ‘Notes on England'', Oxford U Comparative L Forum ouclf.iuscomp.org - Troper, M. (2008). ‘Séparation des Pouvoirs', Dictionnaire électronique Montesquieu. http://dictionnaire-montesquieu.ens- lyon.fr/index.php?id=286 - Vile, M. [...]

[...] De l'esprit des Lois. Book II, Chapter 1. Idem. XI Idem. XI Krause, S. (2000). Spirit of Separate powers in Montesquieu' in The Review of Politics, Vol pp.231-65. Stewart, I. (2002). ‘Montesquieu in England: his ‘Notes on England'', Oxford U Comparative L Forum ouclf.iuscomp.org. Eisenmann, C. (1952). [...]

[...] pensée constitutionnelle de Montesquieu' in Various authors, La pensée politique et constitutionnelle de Montesquieu: bicentenaire de L'esprit des lois 1748-1948, Recueil Sirey, Paris, pp.133- 60. Montesquieu (1758). De l'esprit des Lois. Book XI, Chapter 6. Idem. XI Idem. XI Eisenmann, C. (1952). pensée constitutionnelle de Montesquieu' in Various authors, La pensée politique et constitutionnelle de Montesquieu: bicentenaire de L'esprit des lois 1748-1948, Recueil Sirey, Paris, pp.133- 60. [...]

[...] The thing is that Montesquieu did not believe in the equality of all citizens. As many other authors, like Machiavelli for instance, he was wary of people” in general. It should not be forgotten that for the French philosopher in order to have the right to elect their representative, men needed to meet some peculiar requirements concerning their wealth, their age, their education and of course their sex. For Montesquieu, only this (small) part of people” is able to participate to political power. [...]

[...] Montesquieu's liberty has a consubstantial relation to law. As a matter of fact, political liberty is for the French philosopher a “tranquillity of mind arising from the opinion each person has of his security”[5], a feeling that can only come from laws. As such, a government guaranteeing that a citizen should not have anything to fear from another one is needed. The Need in Moderation This is the reason why Montesquieu devoted himself to analyzing the different types of government existing and what is the place of liberty in each. [...]