Montesquieu, Charles Louis de Secondat (1689–1755)

Author(s):  
Mark Hulliung

Montesquieu, one of the greatest figures of the Enlightenment, was famous in his own century both in France and in foreign lands, from Russia to the American colonies. Later generations of French philosophes took for granted his concern to reform the criminal laws, to replace the Inquisition with a reign of tolerance, and to repudiate the vicious conquests of the Spaniards in the Americas. They also accepted his finding that Protestant, commercial, and constitutionalist England and Holland represented all the best possibilities of Europe; whereas Catholic, economically backward, and politically absolutist Portugal and Spain represented the worst of the Western world and constituted a warning to the French. Although the findings and specific reforms proposed by Montesquieu were repeated by many another figure of the French Enlightenment, his work in certain respects remained unique in the circles of the most advanced thinkers. In his efforts to think systematically about politics and to do so by employing the comparative method, he stands virtually alone in his age. Other thinkers sharing his commitments resorted to the universalizing language of natural rights when they ventured into the realm of political philosophy. Or, like Voltaire, they tied their thoughts about politics to a succession of specific issues, each essay bearing so indelibly the imprint of specific time and place that there was no room for theory in their writings. Finally, as is true of Diderot or D’Alembert, many of the philosophes were slow to recognize what Montesquieu knew from the outset, that if Enlightenment does not extend to politics it is futile. Steeped in Montaigne’s scepticism, Montesquieu found that in the absence of absolutes there were good reasons to appreciate the ‘more than/less than’ and ‘better than/worse than’ judgments of comparative analysis. In his notebooks he commented that the flaw of most philosophers had been to ignore that the terms beautiful, good, noble, grand, and perfect are ‘relative to the beings who use them’. Only one absolute existed for Montesquieu and that was the evil of despotism, which must be avoided at all costs. Montesquieu wrote three great works, each teaching lessons about despotism and freedom,The Persian Letters (1721), the Considerations of the Grandeur of the Romans and the Cause of Their Decline (1734), and The Spirit of the Laws (1748).

Author(s):  
ALEXANDRA A. TROITSKAYA

The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.


Author(s):  
Geoffrey Parsons Miller

This chapter explores the thesis that the historical narratives of the Hebrew Bible address abstract ideas about politics, government, and law. Taking issue with critics who view the Bible’s spiritual and theological message as incommensurable with political philosophy, the chapter argues that the stories of politics and kingship in the Hebrew Bible’s historical books set forth set forth an impressive political theory that rivals, in some respects, the work of Plato, Aristotle, and other Greek thinkers. The key is to bring out the general ideas behind the specific narrative elements. The chapter illustrates this thesis by examining the Hebrew Bible’s treatment of a number of classic problems of political theory: anarchy, obligation and sovereignty, distributive justice, and the comparative analysis of political organizations.


Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
Ira K. Lindsay

ABSTRACT Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.


2018 ◽  
Vol 28 (4) ◽  
pp. 583-614
Author(s):  
DANIEL THOMAS POTTS

AbstractThis study examines a little-known case of Enlightenment knowledge transmission centred on the rock-cut monument of Darius I at Bīsotūn in western Iran. It discusses a report on the monument published by the cartographer and historian Jean-Baptiste Bourguignon d'Anville, which originated with the Decalced Carmelite monk Emmanuel de Saint-Albert (born Jean-Claude Ballyet); who transmitted it to Isaac Bellet, a doctor involved in secret negotiations in Constantinople; who in turn sent it to Louis, Duke d'Orléans, in Paris; who passed it on to d'Anville. The collison of scholarly interest, political service and scientific personality offers a fascinating case study of the Enlightenment ‘republic of letters’ in action.


Kant Yearbook ◽  
2021 ◽  
Vol 13 (1) ◽  
pp. 49-71
Author(s):  
Mike L. Gregory

Abstract Kant’s Naturrecht Feyerabend has recently gained more sustained attention for its role in clarifying Kant’s published positions in political philosophy. However, too little attention has been given to the lecture’s relation to Gottfried Achenwall, whose book was the textbook for the course. In this paper, I will examine how Kant rejected and transforms Achenwall’s natural law system in the Feyerabend Lectures. Specifically, I will argue that Kant problematizes Achenwall’s foundational notion of a divine juridical state which opens up a normative gap between objective law (prohibitions, prescriptions and permissions) and subjective rights (moral capacities). In the absence of a divine sovereign, formal natural law is unable to justify subjective natural rights in the state of nature. In the Feyerabend Lectures, Kant, in order to close this gap, replaces the divine will with the “will of society”, making the state necessary for the possibility of rights.


2021 ◽  
Vol 16 (5) ◽  
pp. 84-97
Author(s):  
A. V. Arbekova

One of the tasks the modern law in the field of insolvency of legal entities pursues is to ensure the maximum balance of the rules governing the measures of liability applied to managers, participants and other entities controlling the debtor. In this regard, the author applies historical and comparative method of studying the measures of responsibility applied during the development of domestic legal regulation of insolvency and the critical assessment method that forms the basis for the analysis of the current Russian legislation. The paper carries out a retrospective analysis of the form and degree of fault as an element of the offense that traditionally acted as one of the criteria for choosing the type of insolvency, as well as for imposing the measures of responsibility. A comparative analysis of the norms of the Russian bankrupt legislation in historical retrospect allowed raising problematic issues of the current legislation and making proposals aimed at their resolution. Currently, the rules of the current domestic insolvency legislation provide an equal amount of responsibility for both bad faith (intentional) and unreasonable (careless) actions of entities controlling the debtor. The normative consolidation of measures of responsibility dependent on the form of fault, namely, the separate qualification of intentional and careless offenses, will secure coherent application of the principle of justice. Modern Russian law contains the concepts of “insolvency” and “bankruptcy”, which in some cases creates legal uncertainty. Therefore, it is proposed to delineate these concepts by law, eliminate the term “objective bankruptcy” from the application, and shift its semantic burden to the concept of “insolvency”. Thereby, a separate category of insolvency will be included in the current legislation.


Fascism ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 16-51
Author(s):  
Tamas Dezso Ziegler

Abstract The relationship between far-right political streams and fascism is a recurring topic in scientific literature. However, we find a low number of academic publications which try to create a framework for their similarities. This article uses Zeev Sternhell’s theory of fascism as a tool to measure different interpretations of fascism and the far right. According to its basic statement, there exists an anti-Enlightenment tradition in the Western world, which could serve as a substratum of these streams. This proves two points. Firstly, that there are several political groups which share a very similar political vision, even if their levels of aggression and radicalism are different. This is the reason why many neo-fascist, post-fascist, ‘populist’ and conservative parties have interchangeable rhetorical clichés and ideological patterns. Second, it shows that Western countries could successfully fight the rise of upcoming anti-democratic forces through strengthening the values of the Enlightenment-tradition.


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