Autor: Manent, Pierre

Buch: An Intellectual History of Liberalism

Titel: An Intellectual History of Liberalism

Stichwort: Montesquieu 2; Legislative: Locke - M.; d. eigentliche Souverän: weder Legislative noch Exekutive, sondern Notwendigkeit; Erweiterung v. L. und E. auf Gesellschaft; Gleichgewicht d. Gewalten -> Freiheit (Ohnmacht v. Staat u. Bürger -> Kultur, Wirtschaft)

Kurzinhalt: The end of all constitutional provisions is to make the two powers approximately equal in strength ... Why does he think that citizens will divide into two almost equal parties corresponding to the two powers?

Textausschnitt: 56b How does Montesquieu conceive of these two powers and their relationship? He begins by going back to Locke's doctrine on the subordination of the executive to the legislative: the latter contains "the general will of the state," the former, "the execution of that general will." As for the significance of the legislative, it also echoes English philosophy: "As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves." (Fs)

56c In spite of these superficial resemblances, the accent is going to be very different from that found in Locke. Locke insisted on the continuity, so to speak, between the mass of the people and the body of representatives, on the latter's necessary faithfulness to the trust placed in them. Montesquieu does not contradict this, but insists rather more on what distinguishes the representative body from the mass of the people. The faithfulness of the representatives to the electorate is valuable only if they also know how to be unfaithful; one has the feeling that the principal merit of representation is to prevent the people from taking "active resolutions," "something of which it is entirely incapable." In Montesquieu's eyes, the people are entirely capable of choosing their representatives well, but not of deliberating well: deliberation must be left to the representatives. One sees how, from Locke to Montesquieu, the interest moves from the origin of power toward its exercise or functioning. (Fs) (notabene)

57a As for the executive power, it "must be in a monarch's hands," because this post of government is technically better administrated by a single person rather than by several. Yet the principle of this monarch's legitimacy, the origin of his power, are never discussed. Decidedly, the interest is elsewhere. The most important concern is obviously the relationship between the two powers. Here again, Montesquieu's emphasis is contrary to Locke's. For Montesquieu, the danger for liberty comes rather from the legislative body:

Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers. But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; besides, the executive power is generally employed in momentary operations. (Fs)

57b And although of course the legislative must have the possibility of examining how the laws have been carried out, it cannot judge the conduct of the person who carries them out; his person must be "sacred." Finally, in legislative matters, the monarch must have the option, if not of making rulings, at least of "preventing" them. (Fs)

57c Montesquieu perceives very clearly that in a regime based on representation the legislative body, as holder of representative legitimacy, is the most naturally tempted to increase its power abusively. Hence, precautions must be taken to ensure a sufficient consistency to the executive. The end of all constitutional provisions is to make the two powers approximately equal in strength, or capacities, even though in accordance with the principle of the regime's legitimacy, the executive should be strictly subordinate to the legislative. The question then is obviously the following: are not these two equal powers going to paralyze each other? Hobbes would not have failed to notice that putting two equal powers opposite each other is a sure recipe for instituting permanent war between them. One must submit to the other or their conflict will bring on the ruin of the body politic. Montesquieu judges it otherwise: "These three powers (including the Upper House) should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert." (Fs)
58a The classic objection of the absolutists is that somebody has to decide in the last resort, and the one who does necessarily enjoys absolute sovereignty. Montesquieu agrees that these decisions must be made, but denies that they must be taken by one power. One decision can be taken by two powers that have agreed; and they will agree (volens nolens) precisely because a decision must be made. The true sovereign of such a regime is neither the legislative nor the executive, but necessity. Most of the decisions taken will not have been desired by either of the two powers. Montesquieu even speaks in his papers of a "miraculous bill" that "passed against the will of the Commons, the Lords and king." (Fs) (notabene)

58b Given that decisions must be made and that therefore the two powers are forced to agree, will they not possibly agree on something to the detriment of the citizens? Might they not reach an agreement to oppress them, to divide up their spoils? What Montesquieu suggests is that the compromise between the two powers will take place necessarily, or at least generally, to the benefit of the citizen's liberty. The explanation of this fortunate result is found in another chapter of The Spirit of the Laws, which is as important as the one we have just considered, but too often is neglected by commentators. While chapter 6 of book 11 describes the statics of the separation of powers, chapter 27 of book 19 reveals its dynamics. It introduces a fundamental notion for understanding the functioning of free regimes, the notion of party:

As there are in this state two visible powers—the legislative and executive—and as every citizen has a will of his own, and may at pleasure assert his independence, most men have a greater fondness for one of these powers than for the other, and the multitude have commonly neither equity nor sense enough to show an equal affection to both. (Fs)

And as the executive power, by disposing of all employments, may give great hopes, and no fears, every man who obtains any favor from it is ready to espouse its cause; while it is liable to be attacked by those who have nothing to hope from it. (Fs)

All the passions being unrestrained, hatred, envy, jealousy, and an ambitious desire of riches and honors, appear in their extent; were it otherwise, the state would be in the condition of a man weakened by sickness, who is without passions because he is without strength. (Fs)

The hatred which arises between two parties will always subsist, because it will always be impotent. (Fs)

These parties being composed of freemen, if the one becomes too powerful for the other, as a consequence of liberty this other is depressed; while the citizens take the weaker side, with the same readiness as the hands lend their assistance to remove the infirmities and disorders of the body. (Fs)

Every individual is independent, and being commonly led by caprice and humor, frequently changes parties; he abandons one where he left all his friends, to unite himself to another in which he finds all his enemies: so that in this nation it frequently happens that the people forget the laws of friendship, as well as those of hatred, (emphasis added)

59a I must attempt to analyze briefly this very remarkable text, in which the extraordinarily evocative description of the England of Walpole and Bolingbroke prophetically contains a summary of the functioning of two centuries of representative regime. (Fs)

59b Each of the two powers, precisely because it confronts another power of approximately equal strength, needs partisans. And because it is a power, it is bound to attract them. Just as power is divided in two, society is going to be divided between the partisans of one power and those of the other. The citizens are going to wish themselves represented by one or the other: even the executive is going to become representative in a way. The citizens are going to seek to realize their ends through the power they favor and whose favor they hope to win. But their will cannot have an immediate or direct effect, since it can be realized only through a power that is held in respect by another power. Because society is represented by a divided power, the citizens are going to be powerless to do much to harm each other. (Fs)

59c But what if one of the parties is supported by such a large majority that it obliterates the other party and the citizens who support it? Montesquieu responds by referring to the consequence of liberty. If one of the powers seems to get carried away, he argues, then the citizens will go to the aid of the other. But why is he so certain that such a mechanism will come into play? Why does he think that citizens will divide into two almost equal parties corresponding to the two powers? (Fs)

59d Citizens are certainly partisans of one or the other power and hope to gain advantages from it. But above all they are members of society, which is distinguished from the two powers. Consequently, if one of the powers takes too much advantage, a certain number of its own partisans, the most lukewarm at first, will feel threatened as members of society. Actually, citizens have a twofold interest: that the power serve their interest, and that it not weigh too heavily on society. They also have a twofold feeling: that the power they favor "represents" them, and also that it is different from them—that it does not understand or will betray them. It is the inevitable interplay of these two inseparable interests and feelings that guarantees that the citizens will spontaneously help the weaker power. The "double dealing" of citizens with power is inscribed in the logic of representation: from the moment that power is supposed to represent the citizen, the feeling of alienation grows along with the desire for identification. (Fs)

60a Thus such a regime produces a double impotence. The division of power leaves the citizens generally incapable of doing much to each other; conversely, citizens can easily make the power powerless by changing parties.1 The impotence of citizens and of power condition each other. This is ultimately what Montesquieu calls liberty. Since divided power can neither do much against the citizen (hence the feeling of security), nor for him (except for patronage) the citizen has only to "assert his independence whenever he pleases." He turns his desires and activities toward domains unfamiliar to politics, toward domains where strictly speaking one does not exercise power over other men. He can now earn money or write books: the economy and culture are the two great domains liberated by this double impotence. (Fs)