Montesquieu
 

VI.9 On the severity of punishments under the various governments

Severity of punish­ments is bet­ter sui­ted to a des­po­tic govern­ment, the prin­ci­ple of which is ter­ror, than to a monar­chy and a repu­blic, which are dri­ven by honor and vir­tue.

In mode­rate sta­tes, love of the home­land, shame, and fear of accu­sa­tion are dis­sua­sive moti­ves that can halt many cri­mes. The grea­test punish­ment for an evil act will be to be convic­ted for it. Civil laws will the­re­fore cor­rect it more easily, without requi­ring so much force.

In such sta­tes, a good legis­la­tor will be less intent on puni­shing cri­mes than on pre­ven­ting them ; he will be more devo­ted to pro­mo­ting values than to impo­sing punish­ments.

Chinese wri­ters1 are conti­nually making the point that the more punish­ments were found to increase in their empire, the more imma­nent was revo­lu­tion. That is because the punish­ments were being increa­sed as values were fai­ling.

It would be easy to prove that in all or almost all the sta­tes of Europe, penal­ties have decrea­sed or increa­sed pro­por­tio­na­tely as the society was moving nea­rer to or far­ther from free­dom.

In des­po­tic coun­tries, peo­ple are so unhappy that they fear death more than they regret the loss of life ; punish­ments must the­re­fore be more rigo­rous. In mode­rate sta­tes, loss of one’s life is fea­red more than death as such is drea­ded ; here punish­ments that merely take one’s life are the­re­fore suf­fi­cient.

Men who are extre­mely happy and extre­mely unhappy are equally prone to seve­rity, wit­ness monks and conque­rors. Only the ave­rage life and the mix­ture of good and ill for­tune lead to content­ment and pity.

What we see in men taken indi­vi­dually exists in the various nations. Among savage peo­ples who live a very hard life, and among peo­ples of des­po­tic govern­ments where there is but one man exor­bi­tantly favo­red by for­tune while it does vio­lence to eve­ryone else, man is equally cruel. Contentment pre­vails under mode­rate govern­ments.

When we read in the his­to­ries exam­ples of the atro­cious jus­tice of the sul­tans, we feel with a sort of sad­ness the suf­fe­rings of the human race.

In mode­rate govern­ments, eve­ry­thing can serve a good legis­la­tor as mate­rial for punish­ments. Is it not quite extra­or­di­nary that in Sparta one of the prin­ci­pal ones was to be for­bid­den to lend one’s wife to someone else, or to receive someone else’s wife, and obli­ged never to be in one’s house except with vir­gins ? In a word, wha­te­ver the law calls a punish­ment is indeed a punish­ment.

I will later show that China in this regard fits the case either of a republic or of a monarchy.