Montesquieu and Sociological Jurisprudence

Author(s): Eugen Ehrlich

Source: Harvard Law Review , Apr., 1916, Vol. 29, No. 6 (Apr., 1916), pp. 582-600
Published by: The Harvard Law Review Association

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 582 HARVARD LAW REVIEW

MONTESQUIEU AND SOCIOLOGICAL

TURISPRUDENCE

IN a highly flattering letter Mr. Justice Holmes has suggested a

criticism of my book on the sociology of law (Grundlegung der
Soziologie des Rechts) in that he finds therein no reference to Mon-
tesquieu. I accept the criticism, but beg that no inference may be
drawn therefrom, since in my eagerness to explain my own views on
the sociology of law I neglected to give a full account of the history
of the subject. But my reverence for the author of L'Esprit des
Lois is very great. Hence in this paper, seeking to pay due honor
to the illustrious American jurisconsult, I shall endeavor to make
amends for the omission and to render justice to one of the first
sociologists of the past in the only way worthy of his genius, namely,
by telling the whole truth about him, as I see it, not sparing neces-
sary criticisms.
When Montesquieu began to write, the doctrine of the law of
nature, as it had been laid down chiefly by Hugo Grotius and
Pufendorf, was at the height of its influence. Its followers assumed
that human society had been established by a social contract, ex-
press or implied, and that law was only a corollary of this original
contract, wherefrom it might be deduced by scientific ratiocina-
tion. As the social contract was the same in every part of the earth,
its logical consequence, the law of nature, must also be the same
everywhere and at every time; but as it was not always clear, it
must be unveiled by science. It formed the basis of and the stand-
ard for the municipal law, which miscarried whenever it deviated
from the principles thereof.
Montesquieu, too, talks of the law of nature, but in a different
sense. He uses it to mean the natural instincts of mankind which
must not be overridden by law; the desire to live in peace with
one's fellows, the sexual impulse, self-defense, the necessity of
search for food, the modesty of woman. A natural law of this de-
scription is obviously too barren and of too little import to serve
as a pattern for the law of a society.
His own views on the science of law are expressed in the prelimi-

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 583

nary chapter of his book in words which must be quoted in the

original:

[Les lois] doivent etre relatives au physique du pays; au climat glace,

brulant ou tempere; a la qualite du terrain, a sa situation, a sa grandeur;
au genre de vie des peuples, laboureurs, chaseurs, ou pasteurs; elles doi-
vent se rapporter au degre de liberte que la constitution peut souffrir;
a la religion des habitants, a leurs inclinations, a leurs richesses, a leur
nombre, a leur commerce, a leurs moeurs, a leurs manieres. Enfin elles
ont des rapports entre elles, elles en ont avec leur origine, avec l'objet
du legislateur, avec l'ordre des choses sur lesquelles elles sont etablies.
C'est dans toutes ces vues qu'il faut les considerer.

Thus in strict contradiction to the law-of-nature school, which

assumes a uniform, everlasting law to be inferred once for all
from a supposed contract which is essentially identical throughout
the whole world, Montesquieu teaches that law depends on multi-
farious conditions and varies at once with these conditions. This
idea of the correspondence of law with outward circumstances
perhaps marks the greatest progress effected by a single man in
legal science. But here we must denounce a certain vagueness which
appears in the very wording of the text. The French term devoir,
used by Montesquieu, signifies both what ought to be and what
must be. In the passage quoted above and generally throughout
the whole book, Montesquieu takes it in the first meaning. In the
main, therefore, his book deals with legislative politics. But he
was so far influenced by the law-of-nature school as not to draw a
sharp line between the law that ought to be and the law that ac-
tually exists. "The law," he says, "is but human reason govern-
ing all peoples, and the public and private laws ought to be (doivent)
only particular cases to which human reason is applied." More-
over he is aware that we may succeed in mastering legislation only
by understanding the real causes of the existence of law. There-
fore his point of issue shifts slowly. With him the two questions,
how law is to be constituted to fit its outward conditions, and how
it is necessarily shaped by those conditions, often flow into one an-
other. But in this way, along with a critical discussion of the ends
of law, we get a sociological explanation of law by its causes. In
fact L'Esprit des Lois must be considered the first attempt to
fashion a sociology of law.

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584 HARVARD LAW REVIEW

Though in the mind of their author secondary and incidental

only, the sociological parts of the book are to-day of the greatest
scientific interest and before all attract the attention of a modern
sociologist. Let us begin with them. The idea of a sociological
science of law, while generally loose and wavering, is on some oc
casions perceived by Montesquieu very distinctly. In the preface
he asserts that he does not write in order to criticise what exists,
but to give the reasons and principles thereof. In another passage,
fearing that the reader might be shocked by his examination of the
principles of monarchy, he emphatically protests that he does not
speak of what should be, but of what really is. In speaking of po-
lygamy, he exclaims: "I do not justify customs, I give the reasons
thereof." Numerous purely sociological disquisitions, free from
any views on legislative politics, are scattered through the book.
As law is essentially a form of social life, it cannot be explained
scientifically otherwise than by the working of social forces. The
natural circumstances brought forward by Montesquieu, geograph-
ical configuration or climate, cannot have any influence on law ex-
cept by operating on society, which in turn acts on law. Thus in
order to discover the social foundation of law we must seek the very
form in which it is engendered by society. It is not the rule of
law as we find it in the codes, the textbooks, and the law tracts.
The rule of law does not proceed directly from society, it is devised
by legislators and jurists. Society itself fashions only the legal
order of the fundamental social institutions, the order of clan,
family, village community, property, contract, inheritance. The
ruling of this legal order, without any trace of the rule of law prop-
erly so called, constitutes the only law which may be found in
primitive tribes or lower stages of civilization, and even in our own
time a great deal of law still consists only in the legal order of social
institutions. From this primary legal order the rule of law is de-
rived by jurists and legislators by very intricate processes which I
endeavored to expound in the Sociology of Law. The rule of law
cannot be understood sociologically without considering the legal
order from which it arises. Nevertheless, the great majority of
sociologists have attended only to the rule of law, not the primary
legal order. As in this way they miss all the intermediate links,
formed by legal institutions, between the rule of law and society,
the whole treatment of the subject becomes unsatisfactory.

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 585

To Montesquieu, also, law presents itself as a body of rules. Yet

he looks behind and guesses, though in a very indefinite way, at
some of the outlines of society in the background. The term " soci-
ety," which he often employs, does not mean for him society in
the modern sense; it signifies only the state, as in the terminology
of the law-of-nature school, which he adopts. But even society
taken as state is in his meaning more than the artificial thing imag-
ined by the law-of-nature school, shaped by a contract supposed
but never settled. It is a living body, begotten by natural forces
and in a certain degree existent independently of state government.
In the Lettres Persanes he derides the inquiries into the origin of
society as they had been made by contemporary followers of the
law-of-nature school: If men did not form societies, if they lived
asunder and ran away upon seeing their mates, we might ask for
the reason; but as they keep together, the son remaining at his
father's, this is society and the real cause of society. Some passages
hinting at the natural foundation of the state are also to be found
in L'Esprit des Lois, especially in the chapter dealing with the law
of conquest.
The modern conception of society in contrast to the state pre-
sents itself to the mind of Montesquieu under various disguises,
the most important of which is what he calls the "general spirit."
"Several things govern men," he says, "climate, religion, laws,
principles of government, precedents, customs, manners; in these
the general spirit has its origin, being the offshoot thereof." We
may substitute the term "society" here for "general spirit" with-
out any difficulty, and we shall get a much more definite and pre-
cise notion of the relations of law and society than through the
teaching of the German historical school, where the " general spirit "
reappears, very obscure, under the name of popular consciousness
(Volksbewusstsein).
The "things governing men," to which we may add, quite in
the sense of Montesquieu, the economic situation, play their part
in modern sociology as elements of social life. There is a remark-
able difference between the passage last quoted and the parallel
passage quoted in French from the first book at the outset. In the
former, law is mentioned along with climate, religion, principles of
government, precedents, customs, manners, among the constitu-
ents of the " general spirit," whereas in the latter only the correspond-

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586 HARVARD LA W REVIEW

ence of law with these things is emphasized. If the difference is not

an accident, we must see therein a perception that law is a compo-
nent of social life along with the other "things governing men"
and that each of them determines the others. It is an admirable
early suggestion of the social consensus imagined by Auguste Comte
and Herbert Spencer. We find it again in an observation as to the
English people: "I do not pretend that climate has not produced
a great part of the laws and manners of this nation, but I say that
the customs and manners of this nation may have a great relation
to its laws." There too the interdependence of all the elements of
social life is assumed. Thus, in the opinion of Montesquieu law is
shaped by society and shapes it at the same time. This is in strict
contradiction with the general opinion of his age, namely, that law
was imposed on society from the outside by a legislator, an idea,
however, which has left many traces in his book.
Again some twenty years before Blackstone, who, however,
learned much from him, and half a century before Buckle and
Savigny, he perceived that the history of law was much more than
a serial relation of curiosities, he saw that it was a means to explain
the structure of a society by showing the progress of its institutions,
and he guessed already the importance of historical continuity for
understanding the present by the past. To that end he devotes
learned discussions to the Roman law of inheritance, to early French
procedure, and to the feudal law of the Middle Ages. Eighty years
before Roscher and Knies he frames a history of economics and in-
serts in his book the admirable chapters on the economic bearing of
the conquests of Alexander the Great and others on the progress of
the world's commerce. A century before Karl Marx he insists on
the intimate connection of the economic situation and its "legal
superstructure," and he is probably the first to deal with economic
problems - exchange, agriculture, money, population, coloniza-
tion - in a juridical book. About a hundred and twenty years
before Ratzel and Brunkes he foreshadows political geography and
anthropogeography in the chapters on the influence of climate on
law, slavery, domestic relations and government, and in the chapters
on the influence of geographical configuration upon law. We may
find there, along with many desultory and superficial observations,
such ingenious reflections as this: "There are different require-
ments of different climates which have shaped different manners

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 587

of life, and out of the different manners of life result diff

That is a clear conception of a society, especially in economic rela-
tion, formed by geographical circumstances and forming the law
in accord with its exigencies. Almost a century and a half before
comparative and ethnological jurisprudence commenced to col-
lect stones and bricks for the building which is still to be erected,
he started to compile data as to the laws and customs of China,
Japan, India, Persia, and even of savage tribes. Moreover, there
are in his works treasures of hints and observations as yet untouched.
Perhaps there is no topic of sociology of law for which L'Esprit
des Lois does not contain a valuable suggestion.
In his youth Montesquieu applied himself to natural history and
probably yielding to the turn of mind acquired in this occupation,
he employs largely the inductive method of scientific research even
in matters of law, being thus in this direction also a precursor of
modern tendencies. This is a somewhat striking point. In the pref-
ace he seems to give quite a different account of the way in which
he arrived at his leading ideas:

"I began my work again and again; I have a thousand times thrown
away the pages I have written. I felt every day my paternal hands
fall. I followed my subject without any preconceived aim; I knew
neither rules nor exceptions; I did not find truth but to lose it. But
as soon as I discovered my principles, all I sought came to me, and I
saw my work begin, grow, advance, come to an end."

And again:

"I laid down my principles and I saw the particular cases yield to
them of themselves; that the history of all nations was only the conse-
quence therefrom."

That is seemingly the genuine scholastic method, beginning with

principles and progressing to particular cases by logical ratiocina-
tion. But in reality the principles Montesquieu starts with are not
contrived a priori. They are all derived from facts he collected,
scrutinized, and turned over in his mind during the twenty years he
was engaged in his work. Indeed the preface gives a very impressive
view of the laboratory of a genius and of his self-deceptions. Great
thinkers often believe they have drawn their fundamental ideas
from a sort of sudden enlightenment, whereas they are grown sub-
consciously in the long course of years, and what appears to be the

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588 HARVARD LAW REVIEW

intuition of a moment is only the discharge of a mind filled with

priming powder at the expense of a life.
His statement of the principles of the three forms of government,
virtue in the republic, honor in the monarchy, fear in the despotism,
certainly looks like a genuine a priori proposition. Yet it is inferred
from innumerable facts. In his mind, republics are the small
city commonwealths of antiquity and later of Italy and the Nether-
lands; monarchies are the feudal and half feudal realms of France
and England in the Middle Ages and in his time; despotisms are the
great empires of the Orient, the Roman Empire in decay, and Rus-
sia. What he calls principles are the moving forces of these states.
His true teaching is that the three forms of government which appear
in history are each of them directed and determined by forces of a
certain description, depending upon size, geographical configura-
tion, climate, customs, manners, and the other "things governing
men." The "principles" are but a terse and striking characteriza-
tion of the forces resulting from the social structure of the states
with which the three forms of government have been connected in
history; and only his profound knowledge of history and his close
observation of the events of his time enabled him to put it as he
did. Here his superiority to his predecessors who had treated this
subject, Aristotle included, becomes apparent; for he does not
think of the forms of government as empty schematic formulas and
of their effects as consequences of purposely-framed ordinances,
but conceives them, rather, as the upshot of the working of natural
forces in society.
In consequence perhaps no legal author has ever been more anx-
ious to amass facts. His works, and above all his L'Esprit des Lois,
are literally crowded with facts - social, historical, economic, ethno-
logical. He was helped in accumulating these facts by his amazing
scholarship in ancient history and literature. Also he had read
thoroughly the relations of travelers in foreign countries, and he
utilized his own observations, which he was admirably equipped to
make. Then, too, his long journeys in England, Germany, Austria,
and Italy, his frequent periods of residence in Paris, and his brief
career as a courtier at Versailles, gave him an excellent oppor-
tunity.
It is true we find in L'Esprit des Lois rather hints, suggestions,
and materials for a sociology of law than in any way an investiga-

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 589

tion thereof. But from among these scattered bones there springs
up already the nucleus of the future science, the perception of some
natural accord with law in social life. Certainly the adherents of
the law-of-nature school used to write of the accord of nature with
law and the legal and moral standard as varieties of the same spe-
cies; and Montesquieu, too, expresses this view in his preliminary
chapter. But that is an idea of quite a different order. It does not
mean that law and morals are subject to some natural conformity
to law, but only that they are a form of natural law taken as a natu-
ral phenomenon. On the other hand, the mercantilists and physio-
crats, both predecessors and contemporaries of Montesquieu, were
already investigating economic laws. But although to-day we may
consider the laws of exchange and production which they dealt with
as in some sort social laws, in their opinion these were more laws
of things exchanged and produced than laws of human action with
respect to them. The sociological law realizes the law of causality
in application to human action in society. In the sociology of
law it would stand for the notion that the arising of legal standards
and their effects are subject to a causality of the same description
as other phenomena of nature. That is exactly the idea which
underlies the sociological and political investigations of Montes-
quieu - in identical circumstances human beings will behave
in an identical way. His inferences for legal science are that under
the same conditions the same law will arise, that under the same
conditions the same law will have the same effect, and that under
different conditions it will have a different effect. In this connec-
tion several heads of the chapters of the twenty-ninth book, which
deals with the composing of statutes, are very instructive, as, for
instance: "That rules which seem to be the same have not always
the same effect"; "That rules which seem to be the same have not
always the same motives"; "That rules which seem to differ may
originate from the same spirit"; "That rules which appear iden-
tical may sometimes be very different."
Therefore the facts accumulated by Montesquieu do not play
the role of mere collectanea. They are illustrations of general laws,
implied by them but not always expressly determined by the writer.
For, in his own words, "it is not important to cause people to read,
but to cause them to think." His true meaning is this: I give you
the facts, consider them thoroughly. You will then perceive that

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590 HARVARD LAW REVIEW

certain causes have produced an effect. Thence you may infer the
general law that everywhere under the same conditions the same
things will happen. If you will take notice of the conformity to
law shown by the facts I have adduced, you will see the future in the
present and you will be able to arrange your activities accordingly.
This train of thought obviously goes back to Bacon and is much
more British than French; it is much nearer kin to Locke and
Hume than to Cujacius, Donellus, Voltaire, and Rousseau.
A chapter entitled "How Law may Contribute to Fashion, Cus-
toms, Manners and the Character of a Nation" furnishes a striking
example of his turn of mind. In this chapter he aims to show that
certain features of national character are necessarily developed by a
free constitution. We perceive at once that he is speaking of the
English people, and the chapter is perhaps the most subtle, refined,
and accurate analysis of English national character which has ever
been written. Yet there is no express mention of Great Britain
or England or the English at all. The chapter is conceived in gen-
eral terms. All the features of the English national character, in-
cluding peculiarities in comparison with France of his time, such
as the modesty and isolation of women, the luxury and extrava-
gance of the gentry in the eighteenth century, and even such his-
torical events as the conquest and oppression of Ireland, which, of
course, is only hinted at and not mentioned expressly, are explained
by the working of a free constitution, and it is supposed that, given
the same conditions, these phenomena would be met with every-
where. No doubt the effects of constitutional law are highly exag-
gerated. The national character is the result of innumerable cir-
cumstances, most of which it is impossible even for the modemn
sociologist to discover. The constitution is much more the effect
than the cause of national character. But we may overlook this.
The most noteworthy point is the anxiousness of the author of
L'Esprit des Lois to hold only to the general bearing of a special
case so that he does not in form speak of the case at all.
This tendency appears also in those parts of his book which treat
of legislative politics. We must not, however, lay too much stress
upon his projects of reform. They are born of practical sense and
a deep sentiment of justice and morals. They are usually excellent
in style, marked bykeenness and penetration, and some of them, such
as the deadly sarcasms on negro traffic or the famous letter of a

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 59I

Jew to the Holy Inquisition upon the auto-da-fi of a Jewess nine-

teen years old, a letter overwhelming by its bitter irony, will rank
with the masterpieces of literature. But after all, they are not
above the average political wisdom current in his time. The re-
forms of constitutional law, criminal law, and civil law for which he
strived have mostly become matters of course and his subtle argu-
ments and fervent attacks against despotism, slavery, and torture,
and his pleadings for some restriction upon the prosecution of heresy,
although very bold when written and very impressive to his con-
temporaries, now appear commonplace. But they may still be
recommended to those who are prone to excuse their indolence with
respect to public affairs by the assumed impossibility of achieving
any progress. The progress is evident if two centuries ago a genius
like Montesquieu was required to urge as improvements what to-
day are matters of course.
In all these things Montesquieu is only a child of his age: humane,
philanthropic, rationalistic, daring, ingenious, witty; but after all
in these respects he does not mark any substantial progress. Yet
he is infinitely superior to the publicists of the eighteenth century
in his leading idea that legislation must be put on a scientific basis.
That is exactly what he proposes in the preface of L'Esprit des
Lois. He teaches that the people must be enlightened. When
plunged in ignorance men have no doubts even while committing
the most fatal blunders. When sufficiently instructed they tremble
even while doing good. They see the disadvantages of reforms;
they suffer from the bad, being afraid of the worse; they allow the
merely good, hesitating to better it; they consider the parts in
order to understand the whole; they examine the causes to de-
termine the effects. In order to arrive at the knowledge he desires,
man must be instructed in human nature. (De connacttre sa propre
nature lors qu'on lui montre.) What he calls human nature, in
the language of our times may be expressed by the phrase " human
society." By enlarging the insight into society and its forces for
which knowledge of human nature is the condition, we may realize
the control of society by legislation just as an engineer who directs
a steam engine controls it with the help of his knowledge of the
mechanism. Montesquieu neglects administration and judicature,
which give still greater opportunity to control society than does
legislation.

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592 HARVARD LAW REVIEW

We can trace the impress of this thought in many parts of the

book dealing with legislative politics, especially in those parts
treating of criminal law. But it may be preferable to give merely
some comments on his views on liberty. Liberty, as he uses the
word, is nothing but the life of society in contrast to the govern-
ment of the state. In contrast with Hobbes and the law-of-nature
school, he perceives distinctly the claim of society to a life independ-
ent of the state and the chief object of his inquiry is to protect it
from the encroachments of state power. And now we come to the
chapter of L'Esprit des Lois, entitled " De la Constitution d' Angle-
terre," a chapter which is one of his chief titles to glory and perhaps
more than any other is destined to immortality.
The arrangement of this chapter is very like that of the chapter
spoken of above in which he treats of the influence of the political
constitution upon the character of a nation. There is no doubt
that it is founded entirely on observation of the working of the
British constitution. Yet there is still no mention of Great Britain
except in the title and in a few words at the end of the chapter.
The question with which he is concerned is not the frame of the
British constitution, but how the constitution of a free people must
be framed. And he examines the principles of this constitution
"where liberty will appear as in a mirror" only because, to quote
his words in the preceding chapter, "there exists a nation in the
world which has political liberty for the direct object of its consti-
tution." Here, too, he intends a general law embodied in a special
case.
The chapter in question sets forth the famous doctrine of the
balance of powers. The three branches of government-legislation,
administration, and judicature - must be intrusted by the constitu-
tion to different bodies and must be kept in perfect equilibrium in
order to make impossible any arbitrary discretion on the part of an
officer of state; the legislative power being confined to the settle-
ment of general rules and to control of the executive power on
general lines without regard to any special case; the executive
power being limited to foreign politics and military affairs; and
the judicial power having for its only task the decision of lawsuits
and criminal prosecutions on the basis of statutory law. In this
way each power is checked by the two others and all oppression and
extortion is obviated. And as the person who wields military force

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 593

might not care too much for constitutional checks when planning
an assault upon liberty, Montesquieu imagines a military organiza-
tion which makes the army quite inefficient at home without pay-
ing much respect to its efficiency abroad.
Accordingly liberty, in the opinion of Montesquieu, means the
condition of society in which it is not restricted by government
beyond limits determined by legislation, which in turn, in accord-
ance with the views on representative government which he enter-
tains, is in functional connection with society. The judicial power
also, though in a different way, is intrusted to delegates of society.
This doctrine has been thoroughly disputed, and in fact it is in
part vague and incomplete and it does not avoid contradictions.
In the first place, we are told that the legislative power merely states
general rules, enacts statutes, and settles the budget, but it does
not interfere with special cases. As the executive power is concerned
only with affairs of international law, and the judicial power with
affairs of civil law, we might assume that the executive power had
nothing to do with domestic affairs. But there is plenty of domestic
business which cannot be provided for by general rules and cannot
be dispatched by judges. We must inquire for the department
which is to manage it. Subsequently Montesquieu seems to suppose
that the executive power has for its function the execution of
statutes and ordinances made by the legislature. And he says that
the ministers charged by the king with this duty of executing them
are accountable to the legislative power therefor. But the execu-
tive power goes beyond the boundaries of its competency described
in the first instance. Finally there is a great deal of governmental
business which does not consist in the execution of statutes, and as
it is not connected with any expense independent of the budget,
there is no hint in Montesquieu which power has to do with it.
These are the most striking inconsistencies in Montesquieu's exposi-
tion, but we may easily find much more of the same description.
There are two inaccuracies in point of fact. The balance of power
imagined by Montesquieu really never existed either in Great Brit-
ain or elsewhere. The English Parliament was at first only a court
of justice. It never became an exclusively legislative and control-
ling body. It has still at present executive and judicial work to
perform and it had much more of this work in the time of Mon-
tesquieu. Much of the authority of the king and consequently

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594 HARVARD LAW REVIEW

of the Cabinet in Great Britain, and moreover the authority of some

boards may with good reason be considered legislative; the king
in the past was a judge also and has never been deprived by law of
this function, some judicial power being still exercised by his offi-
cers. Courts in Great Britain and elsewhere are not restricted to
the application of statutes as Montesquieu maintains in consequence
of his misconception of the judicial function. British judges find
law themselves and settle rules of judicial law. Thus in the sense
of Montesquieu they are legislating.
Because of these and some other deficiencies which have been
pointed out, especially by German scholars, the theory of Montes-
quieu does not hold ground in the scientific world. But after all,
Montesquieu saw more and deeper than his learned critics. It is
precisely the merit of Montesquieu that from the embarrassing
perplexity of state institutions he disentangled the elements of the
fundamental functions they subserved, and singled out the concrete
bodies by which those fundamental functions were exercised in
Great Britain in his time. State authorities, magistrates, officers,
boards, may arise for governmental purposes, may appropriate
and usurp in the long run very disparate jurisdictions, and still
there are the needs of governmental business, the tendencies of
social life, which determine them in their growth, and the insight of
a genius will distinguish in their intricacy the great lines of develop-
ment and point out the forces driving in a certain direction.
That is exactly what Montesquieu did. He observed the three
branches of governmental power which must necessarily exist in
any state, be they actually allotted as they may. He saw the general
tendency to separate them and attribute them to different boards
or bodies. He perceived the importance of disconnecting and bal-
ancing them for the individual welfare and the freedom of the
people. He understood the very meaning of parliamentary control
and of the responsibility of the Cabinet. In all this he cared much
more to delineate the essential traits than to accurately set forth
the details. In order to bring out the true direction of the move-
ment he neglected the secondary forces which might produce acci-
dental deviations. In this turn of his mind he is essentially French.
What is not plain is not French. (Ce qui n'est pas ciair n'est pas
franfais.) Certainly he had a great predecessor in Locke, but it
is just his additions and omissions which give general bearing to

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 595

his teachings, whereas Locke's statements apply only to the British

constitution. In this part of his book, which we must recognize
as a masterpiece, Montesquieu proved himself a profound and keen
observer, capable not only of seeing what had grown, but of fore-
seeing what was growing. Palpably the British constitution has
since followed in the way at which he hinted. At present it cor-
responds to his description much more than it did at the time when
he wrote. The framers of the constitution of the United States
adopted a great part of his teaching, especially with respect to the
balance of powers. The constitution of the first French republic
and that of the Restoration were largely influenced by his doctrine.
But most of all the constitution of Belgium, the model of written
constitutions in Europe and other parts of the world in the nine-
teenth century, shows the same influence. Thus the eleventh chap-
ter of the eleventh book of L'Esprit des Lois became an event
in the world's history.
In still another part of his work, namely, in that part which
deals with federal republics, he proved to be not only a learned
scholar and an observer of wonderful acuteness, but a guide and a
prophet in constitutional politics. He saw that the only kind of
republican government which he knew by experience, namely, the
city commonwealths in antiquity and later in Italy, prospered when
small and weak but were exposed to the danger of conquest, and as
soon as they grew in size and force became subject to corruption
of all kinds. Therefore he imagined that the best line for them was
federative government. He had before his eye the federation of
republics in Switzerland, the federation of the Netherlands and the
Holy Roman Empire of Germany, which he conceived to be a federa-
tion of monarchies and republics. He inferred therefrom that a
federation of small monarchies was wholly impossible, as it was not
to be found in history, and that a federation of monarchies and
republics was necessarily deficient, as the German Empire then
obviously was, because the spirit of monarchy, requiring war and
enlargement, was incompatible with the spirit of a republic, which
demands peace and moderation. But a federation of small repub-
lics would thrive, as was proved by Switzerland and the Netherlands.
By association they would gain military force to resist conquest and
they would preserve the advantage of a pure republican govern-
ment within. The marvelous prosperity of federal republics in

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 596 HARVARD LAW REVIEW

America and Australia has since demonstrated the correctness of

his views.
But it is a dangerous thing to be a pioneer. The idea of building
a sociology of law with the means and materials of the eighteenth
century is one of astonishing grandeur, but here, as elsewhere,
grandeur is separated from the ridiculous only by a pace. The
efficiency of mental effort is conditioned not only by the merits of
the originator but also by the whole condition of the country.
Even a genius running before his time cannot entirely get away from
the atmosphere wherein he breathes. He is checked at every step
by the prejudices and shortcomings he shares with his contempo-
raries. On the other hand, he is deprived of the support which science
could afford, since it has not yet gathered the materials for the
solution of the questions which he agitates, and he does not exer-
cise a real influence on his contemporaries who can only grasp what
is within the reach of the understanding of their time. The fate
of the great achievements of Montesquieu resembles in a certain
measure the fate of the steam engine constructed by Denys Papin
in the seventeenth century which, imperfect as it then necessarily
was, remained unnoticed at the time in order to be discovered some
centuries thereafter. Montesquieu was admired in his age chiefly
for that part of his work which was perishable and has passed
away. His most important scientific labors have not been attended
to. Now they are forgotten, superseded by the scientific progress
accomplished in later times, and have to be dug out from the
dust by his biographers.
In the first place, the foundation of his work is extremely un-
reliable in point of fact. He was indeed a great scholar in ancient
history and in the history of the early Middle Ages, but of course
the history which was at hand for him was not the critical history
which we have to-day. He accepts every word of the miracles re-
lated by Livy and Dionysius for truth. He believes in Lycurgus
as well as in Romulus and Remus. He knows all about the con-
stitution of Rome in the period of the kings and immediately there-
after with respect to which modern historians most unhappily con-
fess they know nothing at all. He is much better informed as to
the Franks in the sixth and seventh centuries than Sohm and
Brunner. So with the sources to which he had access with reference
to savage tribes, to China, to Japan, to Persia, to Turkey, to the

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 597

Tartars, and to the Muscovites. We must highly respect his zeal

to know about these distant peoples and realms. But we cannot
overlook the fact that the relations of travelers, reports of mis-
sionaries, and historical works of his day have ceased to have any
scientific value.
Moreover, the task he essays exceeds even what modern sociolo-
gists would be able to perform. In order to explain law by society
we must have a thorough knowledge of the economic and social
situation of the society in question. To the extent that we are not
sufficiently helped by ancient authors we must seek supplementary
information in the remains of past ages, in monuments, in furniture,
in instruments, in vase pictures, in inscriptions, which give us in
some directions much more light than the written sources. The
scientific utilization of antiquities (Altertuimer), indispensable for
the knowledge of social and economic relations, is even now in
embryo. When Montesquieu was at work, the compilation and
scrutiny of such data had just begun. Unfortunately, Montesquieu
did not take account of what existed in his time. The same must
be said of the parts of the book dealing with actual relations of
law and society. He lacked throughout the statistical, geographi-
cal, ethnological, ethological data, the shortcomings of which even
now make a scientific foundation of sociology impossible in many
directions. With respect to distant realms and peoples, savage
tribes, Chinese, Japanese, Muscovites, Persians, and Turks, the
only thing we can assert is that the relations of travelers and re-
ports of missionaries, and even the historical works from which
he endeavored to get some information, have been shown to have
no scientific value. Consequently the only thing which he could
really utilize was his own observation. In fact the most notable
paragraphs which we read still with greatest interest rest simply
upon that. In this category are the chapters on the British con-
stitution and on the English national character heretofore spoken
of; also the chapter on honor as the principle of monarchy, on
(French) education in the monarchy, on the character of Spaniards,
on court and courtiers, and the hints on the Holy Roman Empire
and on Poland. From this point of view the Lettres Persanes,
founded exclusively on observation, may pass for the best of his
works. Another deficiency of the work of Montesquieu, which,
however, he shares with modern sociologists, is the identification

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598 HARVARD LAW REVIEW

of law and the rule of law which he fo

and law tracts. Hence, as he does not see the legal ruling of social
institutions forming the intermediate link between the rule of law
and the society, he fails to establish any interdependence between
them. Where he tries to set forth the causes of some law he can
but give conjectures, usually unsustained from a scientific point
of view, mostly desultory and fallacious, often absurd and even
ridiculous. The chapters on climate, geographical configuration,
and religion are full of this. The reason is that practically he did
not sufficiently take into account what he perceived theoretically,
namely, that they must shape social institutions before they can
produce rules of law. Again, when he enters into the inquiry as to
the social and economical situation he is not capable of pointing
out their consequences in law because he misses the social institu-
tions through which they operate. The history of the world's
commerce, and the treatise on feudal law, admirable as they are,
appear in some measure suspended in the air. We may ask what
they have to do in a book on the spirit of laws. It would be dif-
ferent if he took care to show how landed interest in the Middle
Ages was influenced by the feudal military organization, and how
the successive enlargements of commerce must necessarily have oc-
casioned transformations and improvements in the law of contract.
In the legislative parts of the book his political views do not
agree with modern ideas. His opinions are very liberal, but his
tendencies are rather feudal. He was very proud of his descent from
an ancient race, and his propositions are constantly influenced by
this affection. He aims to reserve to the nobility as much as possi-
ble of the prerogatives of past ages. In this constitution the first
chamber is reserved for the nobility, and is also the privileged court
of noblemen, who, being exposed to the jealousy of the people,
cannot be indicted before the popular tribunal. Trade is prohibited
to the noblesse. Great trading companies ought not to be licensed,
since they would be able to check the influence of other classes.
Honor in its feudal conception is said to be the principle of monarchy.
An ancient French law is recommended which fines a nobleman
more heavily than a villain, but with respect to other punishments
is more severe toward the people. On the other hand, his classical
studies often led him to feel some attachment to the republics of
antiquity, to their austere virtue, their patriotism, and their frugal-

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 MONTESQUIEU AND SOCIOLOGICAL JURISPRUDENCE 599

ity. This old-fashioned bias in both directions has greatly injured

the legislative parts of his book.
Finally Montesquieu does not realize the modern conception of
development and evolution. Causality in society and in law, in
his understanding, means only changes produced by outward cir-
cumstances. This is not yet the development imagined by Buckle
and Savigny, which supposes changes coming from the nature of the
subject changed, and therefore conditioned by the very structure
of society. Only in some historical passages may we find traces of
this notion. Causality in the mind of Montesquieu is still less
evolution in the sense of modern natural philosophy, which implies
a slow adaptation of the subject evolved to outward circumstances,
and contains the idea of perfectibility, as every posterior stage is
understood to present a higher degree of existence than those which
preceded it. Montesquieu lacks this notion entirely. He does not
know anything about the degrees of structural development. He
compares the character of the Chinese and of the Spaniard (Ducarac-
tMre des Espagnols et celui des Chinois). He puts on the same line
the republic of Lycia and the Netherlands. In his opinion the ex-
pediency of law depends mainly on the intelligence and the good
nature of the legislator who intends to meet the circumstance.
If the emperors of China had been wise enough and kind enough
to their people they would have been able to impart to it as perfect
a constitution as that of England.
Montesquieu has suffered in full the tragedy of a genius anticipat-
ing his age. His contemporaries understood him only in what was
relatively trifling and transient in his work; all that was qualified
for immortality passed without an echo. Coming generations pre-
ferred to build up a new work from the basement instead of taking
advantage of the foundations erected rather hastily by Montes-
quieu. Thus the effect of L'Esprit des Lois does not correspond
with the mental force which it demonstrates. In view of modern
scientific exigencies it is a capricious, dilettante, fragmentary work
of a grand seigneur rather than of a scholar. Nevertheless it is a
splendid work embracing immeasurable treasures of thought from
which generations of scientists may derive ideas and suggestions.
If it should fall to one's lot to reach the years of Methuselah one
might try perhaps in the last century of his age, provided with the
entire scientific armor of the next millennium, to carry out a work

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6oo HARVARD LAW REVIEW

such as Montesquieu intended. I do not think he would be obliged

to make any fundamental alterations. I suppose he could keep
the trestle and the framework, the leading ideas, the arrangement,
and much of the details. In the main it would suffice to put a new
argument under the heads of the chapters which could remain un-
changed. Then certainly it would be one of the best books which
could be written on the philosophy and the politics of law.
Eugen Ehrlich.
VIENNA.

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