Chapter 6 - Legislating Within the Limits

Summary

Where the prospects for constitutionalism repose upon the possibility of justice among particulars, the stakes are high enough to make constitutionalism itself a cardinal human good. The terms upon which family is generated—a deliberate and individual act of will—propagate to the entire social development that ensues. In short, the goal of political liberty in the constitutional order is predetermined by the necessity of civil liberty to the self-governing soul. The constitutional order is directly opposed to the power-centered order, and the great question concerning it is whether it can operate effectually—which is to say, whether a deliberate social order that concentrates in the hands of individuals provision to assure just dealings (among particulars) can survive the vagaries of human capacities and inclinations. The foreclosure of rule in the household to females is unrelated to their moral and intellectual capacities, just as foreclosure of rule by philosophers in the polis is unrelated to their moral and intellectual capacities. The development of deliberately chosen roles and relationships creates a limited horizon (a cave) within which recourse to transcendent aims is foreclosed. Hence, the observation in EL 19.27:

In a free nation it is more often indifferent whether individuals reason well or ill. It suffices that they reason. Liberty, which guarantees the effects of these same reasonings, derives from this.

The question of the constitutional order—or law-making in general—becomes the question of how to fit the developed order to the indirect pursuit of the cardinal human goods.

Montesquieu's response to that inquiry comes in the form of a discussion opening in Book 19 on the laws “in relation to the principles that shape the general spirit (or mind), the morals, and the manners” of a people. What is most striking in this formulation is Montesquieu's explicit departure from the standard for principles laid out in his introduction of archetypal constitutions in Books 1 through 10. In that first formulation each regime had a “nature” and “a principle.” The nature prescribed the what or substance of each regime, while the principle infused each with its principle of motion. That we now entertain plural principles that “shape” mind, morals, and manners establishes a clear turn away from the archetypes.