Montesquieu

As soon as men are in society, they lose the sense of their weak­ness ; the equa­lity that was among them cea­ses, and the state of war begins.

Every sepa­rate society comes to feel its strength, which results in a state of war nation to nation. Individuals in each society begin to feel their strength ; they seek to turn the prin­ci­pal advan­ta­ges of that society to their own bene­fit, which makes for a state of war bet­ween them.

These two sorts of state of war bring about the esta­blish­ment of laws among men. Considered as inha­bi­tants of such a vast pla­net that there will neces­sa­rily be dif­fe­rent peo­ples, they have laws bea­ring on the rela­tion­ship these peo­ples have with each other, and that is the law of nations. Considered as living in a society which has to be main­tai­ned, they have laws bea­ring on the rela­tion­ship bet­ween those who govern and those who are gover­ned, and that is poli­ti­cal law. They have still others bea­ring on the rela­tion­ship of all their citi­zens with one ano­ther, and that is civil law.

The law of nations is natu­rally foun­ded on the prin­ci­ple that the various nations must do each other as much good as they can in pea­ce­time, and as lit­tle harm in war­time, without com­pro­mi­sing their true inte­rests.

The object of war is vic­tory ; that of vic­tory, conquest ; that of conquest, self-pre­ser­va­tion. From this prin­ci­ple and the pre­vious one ought to flow all the laws that make up the law of nations.

All nations have a law of nations ; even the Iroquois do, who eat their pri­so­ners. They send and receive embas­sies ; they reco­gnize rights of war and of peace ; the trou­ble is that this law of nations is not based on the true prin­ci­ples.

Besides the law of nations with res­pect to all socie­ties, there is a poli­ti­cal law for each. No society could sub­sist without a govern­ment. All of the sepa­rate for­ces toge­ther, as Gravina puts it well, cons­ti­tute what we call the poli­ti­cal state.1

The ove­rall force can be put in the hands of one man alone, or in the hands of seve­ral. Some have held that, since it was nature that esta­bli­shed pater­nal power, govern­ment by one man alone was most in kee­ping with nature. But the exam­ple of pater­nal power pro­ves nothing. For if the power of a father is ana­lo­gous to govern­ment by one man alone, then after the father’s death the power of the bro­thers, or after the bro­thers’ death that of close cou­sins, are ana­lo­gous to plu­ral govern­ment. Political autho­rity neces­sa­rily entails the union of seve­ral fami­lies.

It is bet­ter to say that the govern­ment most in kee­ping with nature is the one of which the par­ti­cu­lar dis­po­si­tion rela­tes best to the dis­po­si­tion of the peo­ple for which it is esta­bli­shed.

The sepa­rate strengths can­not join toge­ther unless all wills are joi­ned. “The joi­ning of those wills,” rightly notes Gravina again, “is what we call the civil state.

Law in gene­ral is human rea­son, inso­far as it governs all the peo­ples of the earth ; and the poli­ti­cal and civil laws of each nation should be only the par­ti­cu­lar ins­tan­ces where that human rea­son is applied.

They should be so well adap­ted to the peo­ple for whom they are made that it is only by extreme chance that the laws of one nation can suit any ano­ther.

They must relate to the nature and prin­ci­ple of the govern­ment which is esta­bli­shed, or which one intends to esta­blish, either because they cons­ti­tute it, as do the poli­ti­cal laws, or because they main­tain it, as the civil laws do.

They must be rela­tive to the phy­si­cal facts of the coun­try, to the free­zing, tor­rid, or tem­pe­rate cli­mate ; to the qua­lity of the ter­rain, to its situa­tion, its size ; to the life style of its peo­ples, labo­rers, hun­ters, or she­pherds ; they must relate to the degree of free­dom which the cons­ti­tu­tion can allow ; to the inha­bi­tants’ reli­gion, their incli­na­tions, wealth, num­ber, com­merce, beha­vior, and man­ners. Finally, the laws are rela­ted to each other, to their ori­gin, to the legis­la­tor’s objec­tive, to the order of things upon which they are esta­bli­shed : it is from all these pers­pec­ti­ves that they have to be consi­de­red.

That is what I shall under­take in this book. I shall exa­mine all of these rela­tion­ships : toge­ther they form what we call the spi­rit of law.

I have not sepa­ra­ted poli­ti­cal laws from civil ones, for as my sub­ject is not laws but the spi­rit of law, and as that spi­rit consists in the various rela­tion­ships which laws can have with various things, I have had to fol­low less the natu­ral order of laws than of those rela­tion­ships and those things.

I shall first exa­mine the rela­tion­ships which laws have with the nature and prin­ci­ple of each govern­ment ; and as that prin­ci­ple has a supreme influence over the laws, I shall strive to unders­tand it well ; and if I can once esta­blish it, we shall see the laws flow from it as from their source. I shall then go on to the other rela­tions which seem to be more spe­ci­fic.

[Giovanni Vincenzo Gravina, Origines juris civilis, 1701–1713.]