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Contribution of Montesquieu to the Law

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  Montesquieu (1689 – 1755), who is one of the representatives of Enlightenment, is a French political thinker. He enters comparative society, law and management styles in his book, The Spirit of the Laws. In this respect, the study has a special place as a comparative sociological observation. However, his aim was not to record or depict many specific cases he had collected; he wanted to enlighten the social, political and legal phenomena through these data. At the end of his studies, he concluded that there were some universal principles or laws governing social phenomena. Then, Montesquieu argues that these principles are singular cases that fit spontaneously, and the history of all nations is manifested as a result of these universal laws. Accordingly, for instance, the various positive legal systems in different societies are determined by the climate, economic conditions of the region, the way of life of people, the nature and principles of the forms of government. The integrity of these conditions constitutes the spirit of laws. Montesquieu first talks about the relations of laws with the government, and for him, there are three forms of government: republican, monarchical and despotic. The ethical principle of the Republican government is the virtue of citizenship; the honor of the monarchical government; and the fear of despotism. Certain forms of legal systems will be in effect when these forms of government and their principles are given. Moreover, it is one of the main theses of Montesquieu that the climate and economic conditions have important effects on the determination of the laws because the climate is effective in shaping the character and excitement structure of a people. In this respect, for example, the character of the Norwegian people is not the same as the Spanish people. Therefore, the laws must be in conformity with the character structure of that people so that it should not be adapted to the laws of another society. Another important point in Montesquieu's theory is the notion of freedom. According to him, freedom is the right to do whatever the laws permit, and not do what we want, and political freedom requires the separation of powers. The separation of powers is a model of the democratic state administration introduced by Montesquieu. Within this model, the state is divided into several units, each unit has separate and independent power and responsibility areas. In addition, each unit may impose restrictions on the use of power by another. Montesquieu divided political power into three as legislative, executive and judicial. He based his idea on the form of British rule. According to this, the power in the British administration system was shared between the king, parliament, and courts. To conclude, his views on balancing these powers have had a significant impact both in America and in France, especially in the 1791 French Declaration of Human and Citizen Rights.



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