Baron de Montesquieu (1689-1755)

Charles-Louis de Secondat, Baron de Montesquieu was born near Bordeaux, France, to a wealthy family. He inherited a seat in the parliament of Bordeaux and was active in politics most of his life. Well educated by his family, he was a most influential writer against the absolutism of the French monarchy (Carrithers, 2010).

Montesquieu challenged the underlying assumptions of natural law by presenting a radically different conceptualization of law and society. He considered law integral to a particular people’s culture. The central thesis of his The Spirit of Laws (1886) was that laws are the result of a number of factors in society, such as customs, physical environment, and antecedents, and that laws can be understood only in the context of particular societies. He further posited that laws are relative and that there are no good or bad laws in the abstract. Each law, Montesquieu maintains, must be considered in relation to its background, its antecedents, and its surroundings. If a law fits well into this framework, it is a good law; if it does not, it is bad.

But Montesquieu’s fame rests above all on his political theory of the separation of powers. According to this theory, a constitution is composed of three different types of legal powers, legislative, executive, and judicial, with each of these powers vested in a different body or person. The role of the legislature is to enact new laws; of the executive, to enforce and administer the laws as well as to determine policy within the framework of those laws; and of the judiciary, simply to interpret the laws established by the legislative power. This classification influenced the form of constitution subsequently adopted by the newly created United States of America after the Declaration of Independence (Bodenheimer, 1974) and also influenced constitutional thinkers in other countries as well throughout the late eighteenth and nineteenth centuries.

Leopold Pospisil (1971:138), in his analysis of Montesquieu’s contributions, aptly remarked, “With his ideas of the relativity of law in space as well as in time, and with his emphasis on specificity and empiricism, he can be regarded as the founder of the modern sociology of law in general and of the field of legal dynamics in particular.”

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