Liberal Constitutionalism and Political Particularism in Montesquieu’s The Spirit of the Laws

Montesquieu’s Political Particularism

Montesquieu’s political particularism occupies a central place in his philosophical and scientific project. It is enshrined in the very title of his book. Unlike Plato and Cicero before him, he writes not the Laws or On the Laws but On the Spirit of the Laws. ⁴ The title contains an allusion with a distinction. The spirit of the laws is formed by the relations of the laws to the physical and moral aspects of a country (EL I.3). On Montesquieu’s view, these relations, and not merely the laws themselves, must constitute the chief concern of lawmakers and theorists.

The line of argument that leads Montesquieu to these relations commences in the third chapter of Book I of The Spirit of the Laws. Here, with little fanfare, he raises the question of the best political order: into whose hands should we place the “strength of the whole society” (EL I.3)? The question soon takes on a more distinctive tincture: which government is most “in conformity with nature?” Following Algernon Sidney and John Locke, Montesquieu first refutes the paternal power argument for the rule of one alone. ⁵ When Sidney and Locke had dispensed with this argument, each turned to his central political principle—consent as the basis of legitimacy (Locke 2003, §6–7; Sidney 1996, II). Once Montesquieu has similarly dispensed with the argument for paternal power, he turns to his central political principle. It is not rule by consent. He writes,

It is better to say that the government most in conformity with nature is the one whose particular arrangement best relates to the disposition of the people for whom it is established. (EL I.3)

In response to his own question, Montesquieu refuses to say whether any particular form of government is “most natural.” Here, he will offer no answer that abstracts from the diversity and complexity of the empirical world. He offers instead what we can only describe as a meta-answer. The naturalness of a particular government can be judged only as we compare its arrangement with the disposition of a particular people.

Both social contract theorists and theorists of paternal power had used the standard of “conformity with nature” as the test of political legitimacy. Like Locke and Sidney before him, Montesquieu accepts that the legislator must take his bearings from nature, but he rejects their narrow accounts of the nature of nature. Locke understood consensual political orders to be in conformity with nature because such orders best reflect the universal moral facts of natural equality and natural freedom. Nature was uniform. But Montesquieu invokes a different conception of nature: nature is a manifold. A government that is according to nature must somehow strive to reflect moral facts rooted in our common human nature. But crucially, it must also reflect what is distinctively “natural” to each nation in the sense of second nature or disposition—what Jean Bodin (1580, 461), before Montesquieu, had called “the nature of each nation.” This position is the core of Montesquieu’s political particularism.

Of course, Montesquieu does not here deny the existence, in theory, of a common standard for judging regimes. Rather, he tells his reader that it is “better to say” that the most natural government is the one that relates well to the disposition of the people (EL I.3). It is less dangerous to say this than to answer the question of natural government in a way comparable to Locke or Sidney’s response. To propose theories of “natural government” without attending to the diversity of human societies threatens to give license to unwise and, as we will see, effectively illiberal projects of legal and political universalism. Montesquieu will praise a particular kind of politics later in Spirit, but as the work opens, he declines to follow his proto-liberal predecessors in outlining any universal prescriptions. ⁶

Yet, despite appearances, Montesquieu does not aim simply to dissuade would-be reformers from initiating legal and political change. Rather, he aims to help them to discern when change is required, how it should be pursued, and what kind of knowledge is required to pursue it beneficially. As he opens The Spirit of the Laws, he explains how he believes his book will affect his readers’ thinking on the subject of political change:

Each nation will find here the reasons for its maxims, and the consequence will naturally be drawn from them that changes can be proposed only by those who are born fortunate enough to fathom by a stroke of genius the whole of a state’s constitution. (EL Pref.)

We will find reasons for our maxims. But it seems that our maxims are not fully reasonable in the sense of being perfectly right or good, since in the same breath, Montesquieu speaks of proposing changes (Brewer 2008, 87). The reasons we will discover are explanations of causes. We will learn why things are thus and so. Understanding these reasons will not lead us to dismiss all proposed changes to our “reasonable” institutions but will rather lead us to recognize that beneficial changes can only be undertaken by those who can fathom by a “stroke of genius” the whole of their state’s constitution—and, by implication, the relationship of the constitution to culture and place (EL Pref.). As Brewer (2008, 87) puts it, “This intrinsic comprehensibility does not function as the acceptance of the status quo; instead it is the condition without which meliorative political intervention cannot be imagined.” From The Spirit of the Laws, reformers will naturally draw the conclusion that because they operate within social wholes, projects of political and legal transformation must be tailored to—and therefore limited by—the particular and distinctive nature or second nature of the people whose lot they hope to improve.

The Psychology of Liberal Constitutionalism

Readers of The Spirit of the Laws have often noted Montesquieu’s warnings against universalistic and rationalistic approaches to political change. Traditionally, these warnings have been seen as the obvious, prudential applications of his political sociology and climatology. On this reading, Montesquieu’s critique of universalism in politics, or his political particularism, flows from worries about instability: the legislator must “examine and test the soil”—the people—“in order to see whether it can support the weight” of the new political institutions (Rousseau 2002, 183). If he fails to do so, the regime may collapse. But while it is certainly true that political stability ranks among the chief concerns in Spirit, this understanding of Montesquieu’s political particularism is incomplete because it fails to capture the relationship between his admonitions regarding regime change and his liberalism. As I will argue, Montesquieu’s warnings against unseasonable political change flow from his understanding of liberty’s psychological dimension.

To understand this relationship, we must begin with Montesquieu’s treatment of liberty as it takes shape in his books on the English Constitution and criminal law (EL XI, XII). Here, Montesquieu’s analysis moves along two fronts. First, in Book XI, he promises to approach political liberty in “relation with the constitution” (EL XI.1). Next, in Book XII, he promises to approach liberty “in relation to the citizen” (EL XII.1). Though significantly more porous than it first appears, this distinction suggests that the establishment of liberal or moderate constitutional forms may not fully guarantee the liberty of the citizen (EL XII.1).

In Book XI, Montesquieu describes the constitutional forms best suited to prevent abuses of power (EL XI.4). He initially defines political liberty as “the right to do everything the laws permit” (EL XI.3). ⁷ When a constitution allows arbitrary constraint or compulsion beyond the scope of settled laws, political liberty is imperiled. In other words, liberty requires the rule of law. Montesquieu, therefore, proceeds to his discussion of the separation of powers because this institutional feature preserves the rule of law. It becomes clear that “the laws that form political liberty in its relation with the constitution” are fundamental laws securing separation of powers and the rule of law (EL XI.1).

But what does the “liberty of the citizen” require, beyond the presence of liberal constitutional forms? In Book XII, Montesquieu writes that the liberty of the citizen “consists in security or in one’s opinion of one’s security” (EL XII.6). This aspect of liberty has an unmistakably psychological dimension. What matters is not only whether I am objectively secure but whether I consider myself to be secure. This unusual definition of liberty suggests that the citizen might not consider himself politically secure even if liberal institutions—the separation of powers and the rule of law—are in place. Instead, Montesquieu argues, the liberty of the citizen is realized only in the presence of the right kinds of “mores, manners, and received examples” (EL XI.1). Likewise, certain criminal laws “favor” the liberty of the citizen. In Book XII, Montesquieu focuses primarily upon these laws. Liberal mores, manners, and received examples pass here without further mention but will reappear later.

Montesquieu thus seems to present two views of political liberty: one that is psychological or subjective and another rooted in observable constitutional arrangements and practices (Rahe 2001, 81). His explicit distinction between Books XI and XII suggests as much (EL XII.1). But at the deepest level, both treatments of liberty are grounded in a psychology of fear. Just after Montesquieu promises to devote Book XI to “liberty in relation with the constitution” (the “objective” kind of liberty), he introduces a psychological definition of liberty. Appearing to get ahead of himself, he writes,

Political liberty in a citizen is that tranquility of spirit [tranquillité d’esprit] which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen. (EL XIX.6)

From the point of view of the citizen, political liberty is tranquility of spirit. A citizen’s tranquility of spirit depends upon his freedom from fear of fellow citizens, including those in power. But this reference to the “liberty in relation with the citizen” in a chapter purportedly concerned with “liberty in relation to the constitution” is not a Homeric nod. Rather, Montesquieu’s psychology of liberty serves as the point of departure for his analysis of the English constitution, and so, of his account of “liberty in relation with the constitution.” He continues,

When legislative power is united with executive power in a single person or in a single body of magistracy, there is not liberty, because one can fear that same monarch or senate that makes tyrannical laws will execute them tyrannically. (EL XI.6, emphasis added)

Separation of powers preserves liberty not simply by preventing actual tyrannical deeds but by removing the causes of fear—a passion that proves inimical to the human good in despotic regimes. Students of politics cannot fully understand even free and moderate political institutions except in relation to their effects upon the passions and opinions of men. Liberty has an important psychological dimension, and Montesquieu therefore locates goodness of “free” institutions largely in their ability to reduce fear. Absent this effect, the institutions are considerably less choiceworthy.

The psychological account of liberty also shapes Montesquieu’s defense of the English jury system. Judicial power is “terrible among men” when held by permanent officers because unlike the legislative and executive, it is ultimately the power to condemn (EL XI.6). The jury trial reduces this terror because it makes the judicial power “invisible and null” (EL XI.6). When one’s judges are not “continually in view,” one comes to “fear the magistracy but not the magistrates” (EL XI.6). Under a jury system, the citizen does not know the identity of his future judges. The judicial power is composed of all and none. Fear is diffused. Similarly, Montesquieu suggests that a man’s judges must be his peers, not simply because one’s peers are actually more inclined to dispense justice but because a judicial power so constituted will ensure that the accused “does not suppose he has fallen into the hands of people inclined to do him violence” (EL XI.6, emphasis added). The jury system is a free institution because it fosters an “opinion of security” and a “tranquility of spirit” in the citizen and the accused. Likewise, the fundamental feature of free government—rule by promulgated law—is a free institution not only because it protects the citizen from harm by arbitrary power but also because it liberates the citizen from fear of arbitrary individual wills. We see, therefore, that even Montesquieu’s analysis of formal institutional arrangements relies upon the psychological account of liberty—the account he seemed to reserve for Book XII (EL XII.1; Rahe 2009, 98). In this way, Montesquieu places the perceptions of the citizen at the center of his liberalism. He foregoes a merely juridical or formal account of political liberty.

Montesquieu’s understanding of despotism leads to his emphasis on the psychological dimension of liberty. Fear (crainte) is the principle of despotic government (EL III.9). Like virtue in a republic or honor in a monarchy, fear sets despotic government in motion and “makes it act” (EL III.1). Despotism both produces and feeds upon fear. While Montesquieu regards the experience of fear as an intrinsic evil (Shklar 1987, 69), he is equally concerned with its effect upon other elements of human well-being (Krause 2001; Robin 2004, 31–51). In despotic regimes, fear undermines the grounds of political agency—magnanimity and honor (EL V.12, III.8–9; Krause 2002a, 1–66; Montesquieu [1721] 1999, LXXIX). It vitiates love within the household (EL III.10; Montesquieu [1721] 1999, XV–XVI). In the presence of habitual fear, reason atrophies and man descends to the level of beasts (EL III.10, IV.4, V.14; Montesquieu [1721] 1999, VIII). Montesquieu summarizes the effects of fear upon human reason with a brief illustration drawn from travel literature: “When the savages of Louisiana want fruit, they cut down the tree and gather the fruit. There you have despotic government” (EL V.13). Fear is stupefaction. It paralyzes the humanity in the man (Montesquieu [1899] 2012, 1192; Shklar 1987, 82).

Against the backdrop of this account of despotic fear, Montesquieu offers his account of liberty as tranquility of spirit. Moderate and liberal government affords man a modicum of freedom from both the intrinsic evil of fear and its effects upon other elements of human well-being. ⁸ This vision of free government, as we will see, deeply informs Montesquieu’s warnings regarding universalism in politics.

Institutional Change and the “Tyranny of Opinion”

We find Montesquieu’s most explicit warnings against political universalism in his treatment of regime change in the crucial nineteenth book of The Spirit of the Laws. As I will show, the particularistic admonitions present in this book are rooted not merely in pragmatic reasoning about stability but in what I have called the psychology of liberal constitutionalism.

Book XIX is titled, On the Laws in Their Relation with the Principles Forming the General Spirit [l’esprit general], the Mores, and the Manners of a Nation. This is the reader’s first introduction to the term “general spirit.” In previous books bearing obscure titles, Montesquieu opens with brief chapters explaining the terms in doubt (Pangle 1973, 193–94). But “What the General Spirit Is” must wait until chapter 4 of Book XIX.

Instead, Montesquieu inserts chapter 2: “How Much It Is Necessary for Spirits to Be Prepared for the Best Laws.” Before he explains the meaning of the general spirit, he gives the reader an indication of its importance. Unlike climate, terrain, and other “physical causes” of laws, the general spirit, together with mores and manners, admits of manipulation by political reformers: it can be “prepared.” Montesquieu then provides four examples of “unprepared” spirits. He recounts episodes from Roman history in which non-Romans balked at Roman judicial formalities. The Germans found Roman tribunals “intolerable.” During one trial, they cut out the lawyers’ tongues and demanded, “Viper, stop hissing.” Mithradates reproached the Romans for their formal procedures of justice. The Laxians judged the Roman trial of their king’s assassin a “horrible and barbarous” affair. Finally, Montesquieu adds that the Parthians’ were unable to tolerate their king’s universal affability and accessibility (EL XIX.2). ⁹

In these four examples, Montesquieu shows us nations failing to understand and embrace the tone and practices of moderate government. In his view, judicial formalities and accessible rulers are hallmarks of moderate and free government. Formalities “increase in proportion to the importance given to the honor, fortune, life and liberty of the citizens” (EL VI.2). Likewise, accessibility characterizes a monarch, in contradistinction to the cloistered despot (EL XXIV.3). Montesquieu, therefore, means to suggest that the spirits of the Germans, the Laxians, and the Parthians were unprepared for “the best laws.”

A summary statement follows these four examples: “Even liberty has appeared intolerable to peoples who were not accustomed to enjoying it. Thus, is pure air sometimes harmful to those who have lived in swampy countries” (EL XIX.2). The “best laws” are laws of liberty and moderation. But absent properly prepared spirits, these best laws are harmful to a people. The harm these institutions cause springs not from the institutions themselves but rather from the people’s perception of them—from their appearance. Twice in this paragraph, Montesquieu remarks that good laws “appeared unbearable [paru insupportable]” to a people. The danger of free and moderate institutions for “unprepared spirits” lies in a problem of opinion, appearance, or perception.

Chapter 2 closes with a colorful and revealing anecdote. A Venetian traveler visited the court of the king of Pegu. When in the presence of the king this traveler mentioned that Venice had no monarch, the king of Pegu laughed “so much that he began to cough and could scarcely talk to his courtiers.” Montesquieu asks, “What legislator could propose popular government to such peoples?” With this final example, Montesquieu suggests that a people may lack the political categories necessary to take new political institutions seriously, much less judge the new institutions legitimate. Book XIX represents a warning for political reformers about the limits and perils of institutional change; yet more than a warning, it represents a guide to the right methods of political change.

The next chapter, “On Tyranny,” seems at first to be out of place. Tyranny is not a regime type for Montesquieu, and one initially wonders why he takes up the subject in a book on the general spirit. In the original draft of The Spirit of the Laws, “On tyranny” is even more strikingly prominent: it appears to have been Book XIX’s lead chapter (Montesquieu 1998–, 4:462.). The chapter’s theme was apparently central to the purpose of Book XIX as Montesquieu first conceived it. When we consider this brief treatment of tyranny and its role in the book, we begin to see more clearly the theoretical connection between Montesquieu’s liberalism and his particularistic cautions regarding political change.

Montesquieu explains that there are two sorts of tyranny: a real tyranny (réelle tyrannie) and a tyranny of opinion (tyrannie d’opinion). Real tyranny “consists in the violence of the government.” Tyranny of opinion is “felt when those who govern establish things that run counter to a nation’s way of thinking [la manière de penser d’une nation].” The introduction of this second variety of tyranny is a true innovation. John Locke offers a single, juridical definition of tyranny—the “exercise of power beyond right” (Locke 2003, §199). Montesquieu’s “real tyranny” answers to Lockean tyranny. But tyranny of opinion is a new political category, forged for this occasion. Montesquieu invites the reader to ask after its significance as he turns to the reign of Augustus to illustrate his meaning.

He explains that when Augustus wanted to be called Romulus, the people “feared that he wanted to make himself king” (EL XIX.3). If he had adopted this name, the Roman people would likely have felt themselves under a tyrant’s heel, even in the absence of any acts of violence. The people’s fear did not simply flow from an aversion to acts of despotism. Rather, the institution of kingship was opposed to their manners. Montesquieu suggests that though Caesar, the triumvirs, and Augustus “were real kings,” the people did not perceive their reigns as tyrannical insofar as they “preserved an appearance of equality” and “seemed opposed to kingly pomp.” The perception of tyranny proceeded not from any institutional structure or act of violence but from the rulers’ contravention of national manners. The Romans did not want a king because they did not want to “suffer his manners.” Montesquieu implies that any political change, if it runs counter to the manners of a people, may be experienced as tyrannical and fear-inducing. Such changes need not come in the form of rulers that covet the name of Romulus (cf. Montesquieu [1899] 2012, 677).

In time, Augustus enacted truly harsh legislation. He governed violently, as a “real” tyrant (cf. EL XII.4). As the Roman people recognized his tyranny, they grew angry and discontent. But as Montesquieu explains,

Their discontent ceased as soon as [Augustus] brought back the actor Pylades, who had been driven out of the town by the factions. Such a people felt tyranny more vividly when a buffoon was driven out than when all their laws were taken from them. (EL XIX.3, emphasis added)

The Roman populace was in error, as Montesquieu makes clear. But this episode, together with his previous comments on the reign of Augustus, suggests that just as real tyranny can exist where tyranny of opinion does not, tyranny of opinion can exist where real tyranny does not. The Romans misjudged a real tyrant because he restored their favored celebrity. Another people may misjudge free and moderate government because it runs counter to their mores, manners and general spirit. Though the institutions of free government may not produce tyrannical violence in Montesquieu’s sense, a people may nonetheless experience these institutions as alien, dissonant with their manner of thinking and productive of fear and disquiet. In other words, they may experience a tyrannie d’opinion.

In light of this, we see now why Montesquieu introduces the concept of the general spirit as he does. The Germans and Laxians experienced a tyranny of opinion under the Romans’ judicial formalities (EL XIX.2). As I have argued, Montesquieu believes that such judicial formalities are essential to the full protection of political liberty. But here, he aims to show that when otherwise moderate, liberal institutions are installed before spirits are prepared to understand them and receive them as legitimate, the people perceive these innovations as tyrannical. No longer liberal in effect, the institutions become despotic in effect. That is, they enflame a people’s disquiet and fear—the same pernicious passion that sustains despotic regimes. They disturb and diminish a people’s “tranquility of spirit” and their opinion of their own security (EL XI.6). ¹⁰ While the Germans and Laxians may, in this instance, have been as mistaken as the Romans who felt tyranny when a buffoon was driven out, their perceptions carry moral significance for Montesquieu. The Romans’ institutional changes were harmful for the same reason that these liberal institutions are good in nations prepared for them. For on Montesquieu’s account, the goodness of these institutions lies substantially in their psychological effects. He teaches the legislator to evaluate political institutions not merely by assessing their merits as abstract forms but rather by considering their likely effects upon the passions and opinions of a particular people.

As we have seen, Montesquieu does not simply approach the legislator with counsels of expedience on the question of matching a regime to a people. He does not merely foretell the difficulties of political change amid a people unprepared to understand it or receive it. He goes beyond description and prediction. Montesquieu suggests that unseasonable political change represents an injury to a people analogous though not identical to the injuries of despotism. Situated in the matrix of Montesquieu’s psychology of liberty, this error is not merely technical but also moral. On his view, to seek political liberalization through merely institutional means while neglecting the cultural preconditions of these institutions is to misunderstand and offend against the substance of liberty itself.

The General Spirit and the Means of Political Change

As Montesquieu warns against the establishment of liberal institutions in nations not yet prepared for them, he speaks from within the moral logic of his own liberalism. This much is clear when we consider his particularistic warnings in the context of his psychological understanding of political liberty. But while this reading confirms the theoretical consistency of Montesquieu’s position, the practical harmony of his liberalism and particularism still remains in doubt. Does Montesquieu’s worry about the tyranny of opinion leave the liberal reformer’s hands tied? In this section, I show how, as Book XIX proceeds, Montesquieu limns the contours of an approach to political change that can avoid the problem of tyranny of opinion. As one would expect, this approach calls for cultural change as a forerunner to political change. But Montesquieu’s liberal commitment to the limited scope of law casts a veil of moral suspicion over the use of coercive cultural legislation (e.g., banning the burqa) as a means of cultural transformation. Montesquieu therefore seeks to develop an account of indirect, noncoercive cultural change as preparation for political liberalization. ¹¹ Previous scholarship, including Pangle (1973, 195–96), Schaub (1995, 138–44), Larrère (2009), and Samuel (2009, 312), has noted that the phenomenon of political change moves to the fore in Book XIX of Spirit. But crucially, I argue as previous scholars have not that this treatment of change represents Montesquieu’s attempt to develop a practicable model of political reform within the bounds of his liberal and particularist commitments. This model displays practical coherence of his liberal constitutionalism and political particularism.

The early chapters of Book XIX suggest that Montesquieu means to teach the legislator to reshape his nation’s spirit (XIX.2) so that, when he finally establishes new civil, political or fundamental laws, these changes will not run counter to the people’s manner of thinking (XIX.3). In this way, the people will comprehend the eventual changes and receive them as legitimate, and the legislator will avoid both the “tyranny of opinion” as well as acts of “real tyranny.”

But to understand how Montesquieu’s approach to political reform unfolds in Book XIX, we must first grasp the political vocabulary and analytical categories he uses there. As we have seen, the book’s central concept is the general spirit. In chapter 4, Montesquieu finally explains what it is. A nation’s general spirit is a cause, though not a first cause (Larrère 2009, 287). Still other physical and moral causes form it (EL XIX.4). These include climate, human nature, religion, laws, political ideas, received examples, history, mores, and manners. The general spirit is, therefore, not simply a “sociological” variable. Laws and material causes help to shape it. But the general spirit is also not an empty signifier, intended to represent the concatenation of all causes that “govern men” (EL XIX.4). Having been shaped by these moral and physical causes, the general spirit shapes them in turn. It acts upon its causes. We have seen how the general spirit can limit a people’s willingness to accept new political institutions (EL XIX.2). More importantly, according to Montesquieu, a nation’s mores “depend” upon its general spirit (EL XIX.14).

Because Book XIX is a study of political change, Montesquieu devotes his attention to laws, mores, and manners, for unlike physical causes (e.g., geography and climate), these admit of manipulation by the legislator. They are potential sites of human agency. Mores and manners are “usages that laws have not established, or that they have not been able to, or have not wanted, to establish” (EL XIX.16). When laws, mores and manners are in harmony, “Mores represent laws, and manners represent mores” (EL XIX.16). Mores impress the content of the laws upon man’s everyday experience, his judgment and his passions. For instance, when the laws give unquestionable authority to the king, mores often give unquestionable authority to the husband, and thereby represent these laws to man. Manners also represent mores to the man, although in a different way: they are physical and exterior, consisting in the covering, movements, and postures of the body. But despite their physicality, manners are designed to shape “internal conduct” (EL XIX.16). Manners are habits of the body that represent and reinforce the habits of the heart. Given their powerful connection to law and the people’s reception of it, mores and manners must, to some extent, lie within the ken and control of statesmen.

Using these categories, Montesquieu unfolds his art of political change in chapters 5–15 of Book XIX. Pangle (1973, 195–96) is correct in dividing the approach of these chapters into two distinct modes. In chapters 5–11, Montesquieu shows how the legislator may sometimes use the existing general spirit of a nation to produce a greater degree of political liberty or to prevent further decline into despotism. This is often possible in Europe. In chapters 12–15, Montesquieu explains how the legislator may bring about political change when the general spirit itself is averse to liberty and moderation, as one finds under profoundly despotic governments. In the first case, the legislator may act with the general spirit and canalize its flow for his political ends. In the second case, the legislator acts not against but apart from the general spirit to alter it indirectly. Both methods avoid direct manipulation of custom, mores and manners.

Taken by itself, the title of chapter 5 does not appear to mark the beginning of a meditation on political change, for it reads, “How Careful One Must Be Not to Change the General Spirit of a Nation.” But with this, Montesquieu does not flatly deny the necessity of changing the general spirit. Rather, he promises a discussion of how careful the legislator must be not to change it. He then describes France in terms reminiscent of the account of Paris in the Persian Letters (Montesquieu [1721] 1999, XL, VIII, LV). The French—especially French women—possess a joie de vivre, sociable humor, playfulness, and even frivolity. Men live in the company of women, and each sex desires to please the other. From this desire is born ornamentation and the multiplication of fashions. Montesquieu concludes, “Fashions are an important subject; as one allows one’s spirit to become frivolous, one constantly increases the branches of commerce” (EL XIX.8). In light of his teaching on commerce in Books XX and XXI, his meaning is clear. Commerce is conducive to liberty because it softens mores, habituates men to give and demand precise justice, and establishes powers independent of the state. Within the general spirit of the French people, Montesquieu sees the germ of liberty. Their vanity multiplies opportunities for commerce, and commerce conduces to liberty—about which more below. If the legislator’s end is liberalization and moderation, he may find within the vices of the national character a source of political improvement.

But this mode of political reform is not always possible. In historically despotic nations, the general spirit offers no support for the work of political liberalization. The legislator finds little or nothing inclined toward liberty in either the national character or general spirit—no French vanity and no Athenian gaiety. Therefore, if he wishes to liberalize and moderate the state, he must alter the general spirit and the causes that form it to prepare the people.

Montesquieu asserts that in despotic nations, “there are no laws, so to speak; there are only mores and manners” (EL XIX.12). Though he understands that many despotic nations live under nominally legal decrees, he means to suggest that mores and manners are the most powerful forces in these nations. They tend to exert great influence in forming the general spirit. One would, therefore, suppose that Montesquieu’s reforming legislator must act upon mores and manners if he would “prepare spirits” for better laws. But he surprises us with an initial warning: “It is a maxim of capital importance that the mores and manners of a despotic regime must never be changed; nothing would be more promptly followed by a revolution” (EL XIX.12). This statement seems to suggest that political reform is impossible in historically despotic states. But we should note that while Montesquieu calls this maxim important, he does not say it is true without qualification. We should also note that Montesquieu expects revolution as the consequence of changing mores and manners in a despotic regime; they must “never be changed” if one wishes to avoid a revolution.

Yet, chapter 14 is titled, “What Are the Natural Means of Changing the Mores and Manners of a Nation.” With this, Montesquieu seems to shunt aside the “capitally important maxim” of chapter 12. If the maxim were unqualifiedly true, he would exclude despotism from the analysis in chapter 14. But instead, he uses the historically despotic Muscovite regime to illustrate the “natural means” of changing mores. Before proceeding to the Muscovite examples, he writes,

We have said that the laws were the particular and precise institutions of the legislator and the mores and manners, the institutions of the nation in general. From this it follows that when one wants to change the mores and manners, one must not change them by laws, as this would appear to be too tyrannical; it would be better to change them by other mores and other manners. (EL XIX.14)

The legislator must change mores and manners to alter the general spirit and prepare a nation for better laws. But when he crafts new laws aimed at changing mores and manners directly, he errs. He will appear tyrannical because his institutions will run counter to the nation’s manner of thinking (EL XIX.1, XIX.2). Instead, he must find a way to effect a change in mores and manners, and so in the general spirit, without opposing them (cf. Courtney 1963, 22–23). For as soon as he is seen to oppose them, he will cause the same fear and insecurity—tyranny of opinion—that he would have produced had he simply imposed “the best laws” without preparing spirits (EL XIX.2). Montesquieu’s legislator must change mores and manners not by laws but by new mores, new manners, and fresh examples.

This indirect method takes shape as Montesquieu recounts two episodes from the reign of Peter the Great. First, Peter wanted all Muscovite men to shorten the lengths of their beards and their robes. He passed a law mandating it. If a long-robed man sought to enter a town, the officer would impose a sartorial penalty, trimming the offending frock (EL XIX.14). Montesquieu calls these sanctions “tyrannical” and “violent means.” Such spectacles illustrate the wrong way—the tyrannical way—to change mores and manners.

We recall here that on Montesquieu’s view, real tyranny “consists in the violence of the government” (EL XIX.3). The violence of the government has a specific meaning for Montesquieu. A government does violence to man when, as Montesquieu explains earlier in Spirit, its punishments proceed from “the legislator’s capriciousness” rather than “the nature of the thing”—that is, the nature of offense (EL XII.4). Each class of offenses carries a natural, necessary and reasonable penalty. When the offender meets with his natural penalty through the mediation of a government, no violence is done him (EL XII.4). But the imposition of penalties in excess of an offense’s natural penalty constitutes an act of violence. Likewise, the imposition of legal penalties for an action carrying no natural, necessary legal penalty constitutes an act of violence (e.g., the execution of heretics). This position is central to Montesquieu’s liberalism. As he explains in chapter 14, “Every penalty that does not derive from necessity is tyrannical. The law is not a pure act of power; things indifferent by their nature are not within its scope [ressort]” (EL XIX, 14).

The Muscovite manners governing dress and grooming are “indifferent by their nature.” They are certainly not indifferent politically; indeed, Montesquieu has underscored their political import. But they are indifferent with respect to the primitive or natural law (EL XVI.12, XII.4, I.1). They therefore fall outside the scope of positive law. To punish a man for the length of his beard is an act of violence and tyranny, Montesquieu insists. By extension, any use of penal codes to regulate indifferent manners constitutes an act of violence and tyranny. To attempt to change such manners by laws is not only imprudent; it is immoral and illiberal. Therefore, while Montesquieu’s art of political reform often relies upon changes in manners, it cannot directly regulate these conventions. The injunctions of legislators must remain within the natural scope of the law.

Montesquieu uses a second episode from the reign of Peter the Great to illustrate an alternative—what he calls the “natural means” of changing mores and manners. When Peter assumed his rule, Muscovy’s women were “enclosed and in a way enslaved” (EL XIX.14). Peter objected to these conditions. He called leading women to his court, had them don German dresses, and sent them new fabrics. The foreign styles were a success. We expect Montesquieu to say that the women appreciated the flattering new style of dress. Instead, he explains that the women “immediately appreciated a way of life that so flattered their taste, their vanity, and their passions, and they made the men appreciate it” (EL XIX.14, emphasis added). The new manners began to transform the mores of the household. Montesquieu leaves it to his reader to discern how this change unfolded. But he implies that the charming new attire shifted the balance of power between the sexes by strengthening the men’s attachments to the women—or, more to the point, by weakening the men. The Muscovite women became more like the alluring and fashionable French women of the Persian Letters, who in Rica’s assessment had achieved a “wholesale capture of authority” in their households (Montesquieu [1721] 1999, CVII).

Montesquieu explains that the liberalization of mores in the domestic sphere will spur similar effects in the political sphere. In chapter 15, he predicts,

This change in the mores of women will no doubt affect the government of Muscovy very much. Everything is closely linked together: the despotism of the prince is naturally united with the servitude of women; the liberty of women, with the spirit of monarchy. (EL XIX.15)

The liberation of women from domestic enslavement opens a pathway to the moderation and liberalization of laws and political institutions. When the husband’s authority is absolute and untrammeled, the general spirit is inclined toward despotism. When the husband’s authority is checked, softened, moderated or even undermined by feminine charm, the general spirit is inclined toward monarchy—a form of government that is, by its nature, moderate and somewhat free (EL XI.4).

With this example, Montesquieu illustrates what he calls the “natural means” of changing mores, manners, and consequently, political institutions. Peter the Great did not “establish” new mores and manners; he did not directly oppose traditional mores and manners. Instead, he “inspired” new mores and manners by insinuating new examples and engaging the people to change their customs themselves (EL XIX.12, 14). Montesquieu calls the method “natural” for two reasons. First, it does not rely upon violence or tyranny. The legislator governs against nature when he dispenses punishments for practices that are by their nature not worthy of punishment—“things indifferent by their nature” (EL XIX.14). In this way, Peter’s treatment of the women is consistent with nature, unlike his earlier treatment of men in overlong frocks. Second, the method is natural because it uses natural passions to achieve its ends. Animated by their passions, the people changed their own mores. So strictly speaking, Montesquieu’s “natural means” of changing mores does not contradict the “maxim of capital importance” that mores must never be changed in despotic states (EL XIX.12). This indirect change in mores was not “promptly followed by a revolution” in the conventional sense (EL XIX.12). But Montesquieu predicts that the new manner of dress would work its way through the whole of state and society, reshaping the general spirit and gradually contributing to the moderation of political and legal institutions. Montesquieu suggests that when the legislator follows the natural means of political change, he advances his nation toward freer and more moderate political institutions without revolution. As importantly, he avoids real acts of tyranny and the appearance of tyranny, for he establishes nothing that runs “counter to the nation’s way of thinking” and does no violence to man (EL XIX.3, XIX.14, XII.4).

This vision of political change is shaped by Montesquieu’s commitment to political liberty, his rejection of crude political universalism, and his liberal understanding of the moral limits of legislation. In view of these considerations, he crafts a coherently liberal particularist model of political reform. The Montesquieuian legislator aims to avoid the twin shoals of tyranny of opinion and coercive cultural legislation while still guiding his nation toward a freer and more moderate politics. If liberal institutions are praiseworthy in light of their effects upon the citizen’s tranquility of spirit, then the means of liberalization must be subject to a similar standard of judgment. Through attention to mores, manners, and the general spirit, the legislator may establish bridgeheads to political liberty.

Montesquieu’s examples from the reign of Peter the Great may initially strike us as being obscure and of limited application outside eighteenth-century Muscovy. But his search for a means of cultural transformation that operates within the bounds of his liberal commitments does not end at the court of Peter. Montesquieu’s books on commerce (XX–XXI) immediately follow Book XIX’s exhortation to use indirect means of cultural preparation, and they are best understood as a continuation of this theme. The aims of the present study do not require, nor does space allow, an in-depth analysis of Montesquieu’s famous insinuations regarding the power of commerce to make way for free and moderate government by softening mores and inculcating habits of giving and demanding “exact justice” (EL XX.1–2). Instead, it is critical to see at this point that moral and unmistakably liberal considerations bring him to this destination. That is, in view of the argument of Book XIX, we see that Montesquieu does not turn to commerce simply because he considers it a technically efficient means of promoting the preconditions of political liberty. Rather, he focuses upon commercial activity because it represents a potential path to fostering mores consonant with “better laws” without resort to illiberal means of coercive cultural transformation, which are beyond the scope of law. The doux commerce thesis emerges as a distinctively liberal response to a distinctively liberal problem.

On Montesquieu’s view, commerce is one means of escaping the trilemma that faces friends of liberty as they consider the prospects for political change in despotic nations. The first horn of this trilemma is a posture of quietism in the face of despotism; the second is a rationalistic, universalistic and narrowly institutional pursuit of political change that ignores the psychological dimension of liberty and the thick cultural preconditions of “better laws”; the third is the pursuit of direct cultural transformation through the coercive power of the state in violation of morals limits on the scope of law. None of these choices are acceptable from the point of view of Montesquieu’s unified liberal particularist framework. But into this space, commerce enters as an indirect and noncoercive means of liberalizing culture and preparing a people for free and moderate institutions.

Conclusion and Implications

Montesquieu’s political particularism is not a mere pragmatic codicil to his normative liberal project. Rather, by virtue of its very structure, his liberalism demands a careful consideration of culture, place, and circumstance, and it eschews an easygoing confidence in the power of human intelligence to formulate generally applicable political solutions. Montesquieu’s resistance to universal political solutions flows from the moral logic of his liberalism.

In his Spirit of the Laws, Montesquieu confronts both the moral and practical challenges of political liberalization. He warns against mechanistic efforts to install liberal institutions in nations unprepared to embrace or maintain them. This warning issues from his conviction that, to a significant degree, the goodness of free government is contingent upon the citizen’s perception of the regime. Under the right circumstances, free institutions help to promote the “liberty of the citizen,” which consists of the citizen’s security and, crucially, the citizen’s tranquility or belief that he is secure. From this psychological account of liberty, it follows inevitably that conscientious advocates of free and moderate politics must regard as a paramount concern the manner in which a populace perceives institutional changes. And because their perception is largely a function of what we imprecisely call a nation’s “culture”—its distinctive mores, manners and customs—Montesquieu explores the problem of transforming a nation’s culture to make it more hospitable to free and moderate government. He concludes, on unmistakably liberal grounds, that while state-builders and reformers must often pursue fundamental changes to a people’s way of life as preparation for constitutional changes, these actors must not transgress the moral limits of state power by using coercion to change the nation’s culture directly. Consistent friends of liberty must indirectly prepare a people for better institutions. In commercial activity, Montesquieu sees one potentially effective and morally legitimate means of promoting mores and manners conducive to free and moderate government.

Previous scholarly interpretations of The Spirit of the Laws have failed to note the remarkable theoretical ties that bind Montesquieu’s normative liberal commitments to his particularistic admonitions. As I have argued, Montesquieu’s psychology of liberty and his understanding of the moral limits of positive legislation give shape to both his political particularism and his liberal constitutionalism. This internal unity challenges the view that Montesquieu’s thought is bifurcated. But more broadly, the theoretical interdependence of Montesquieu’s liberalism and political anti-universalism is noteworthy because it challenges the common tendency to associate the whole of Enlightenment political thought with rationalistic and universalistic approaches to the art of politics that overlook the ways in which place, culture, and history must complicate the instantiation of normative principle. ¹² While many Enlightenment liberals displayed a preference for the “nakedness and solitude of metaphysical abstraction,” Montesquieu’s particularistic art of politics finds firm moral grounding in his commitment to political liberty (Burke 2003, 7). This suggests the need for a more variegated understanding of the essential character of early modern liberalism and Enlightenment political thought.

But the more immediate significance of the present study, as I have indicated, lies in its contribution to ongoing debates concerning the ethics and politics of regime change and the progress of liberal democracy in the world. This reevaluation of the unity of Montesquieu’s political project invites us to consider whether the contemporary theory and practice of democratization has focused too little on the cultural and social constraints upon political change and too intently on formal institutional design. This challenge is particularly worth considering as it comes from the father of modern constitutional design. The cultural preconditions of modern liberal regimes—with representative institutions and separation of powers—may not be as thick or exacting as the preconditions of classical republican regimes, but it does not follow from this that no preconditions exist beyond rational self-interest. Self-interestedness does not render men unfit for liberal constitutional government, as it might for the classical republic of virtue. But it is equally true that a people’s rational self-interest cannot alone suffice as the foundation for liberal politics—not even in the most skillfully designed, carefully balanced political system.

Montesquieu’s framework ultimately provides fresh moral reasons for aspiring liberal reformers and state-builders to ask soberly whether cultural conditions will permit their contemplated institutional innovations to produce the benefits they are designed, in theory, to impart. This theoretical founder of the liberal tradition does not deny the possibility of political transformation in nations with illiberal pasts, but especially in such cases, he urges reformers to judge the methods of political liberalization by a moral standard implicit in his theory of liberty. On his view, when theorists and statesmen embrace both liberal constitutionalism and political particularism, their loyalties remain undivided.