Liberty and The Separation of Powers
A second major theme in De l'esprit des lois concerns political liberty and the best means of preserving it. "Political liberty" is Montesquieu's concept of what we might call today personal security, especially insofar as this is provided for through a system of dependable and moderate laws. He distinguishes this view of liberty from two other, misleading views of political liberty. The first is the view that liberty consists in collective self-government—i.e. that liberty and democracy are the same. The second is the view that liberty consists in being able to do whatever one wants without constraint. Not only are these latter two not genuine political liberty, he thinks, they can both be hostile to it.
Political liberty is not possible in a despotic political system, but it is possible, though not guaranteed, in republics and monarchies. Generally speaking, establishing political liberty on a sound footing requires two things:
- The separation of the powers of government.
- Building on and revising a discussion in John Locke's Second Treatise of Government, Montesquieu argues that the executive, legislative, and judicial functions of government should be assigned to different bodies, so that attempts by one branch of government to infringe on political liberty might be restrained by the other branches. (Habeas Corpus is an example of a check that the Judiciary branch has on the Executive branch of government.) In a lengthy discussion of the English political system, he tries to show how this might be achieved and liberty secured, even in a monarchy. He also notes that liberty cannot be secure where there is no separation of powers, even in a republic.
- The appropriate framing of civil and criminal laws so as to ensure personal security.
- Montesquieu intends what modern legal scholars might call the rights to "robust procedural due process", including the right to a fair trial, the presumption of innocence and the proportionality in the severity of punishment. Pursuant to this requirement to frame civil and criminal laws appropriately to ensure political liberty (i.e., personal security), Montesquieu also argues against slavery and for the freedom of thought, speech and assembly.
Read more about this topic: The Spirit Of The Laws
Famous quotes containing the words liberty and the, liberty and, liberty, separation and/or powers:
“What is Americanism? Every one has a different answer. Some people say it is never to submit to the dictation of a King. Others say Americanism is the pride of liberty and the defence of an insult to the flag with their gore. When some half-developed person tramples on that flag, we should be ready to pour out the blood of the nation, they say. But do we not sit in silence when that flag waves over living conditions which should be an insult to all patriotism?”
—Anna Howard Shaw (1847–1919)
“Musicians are seldom unemotional; a woman who could sing like that must know how to love indeed.
Girls brought up [as you were,] in a very strait-laced and puritan fashion, always pant for liberty and happiness, and the happiness they have never comes up to what they imagined. Those are the girls that make bad wives.”
—Honoré De Balzac (1799–1850)
“New York is a woman
holding, according to history,
a rag called liberty with one hand
and strangling the earth with the other.”
—Adonis [Ali Ahmed Said] (b. 1930)
“Last evening attended Croghan Lodge International Order of Odd Fellows. Election of officers. Chosen Noble Grand. These social organizations have a number of good results. All who attend are educated in self-government. This in a marked way. They bind society together. The well-to-do and the poor should be brought together as much as possible. The separation into classes—castes—is our danger. It is the danger of all civilizations.”
—Rutherford Birchard Hayes (1822–1893)
“To receive applause for works which do not demand all our powers hinders our advance towards a perfecting of our spirit. It usually means that thereafter we stand still.”
—G.C. (Georg Christoph)