Ep. 239: Montesquieu Invents Political Science (Part One)

0:00 Mark: You're listening to the Partially Examined Life, a podcast by some guys who at one point set on doing philosophy for a living, but then thought better of it. Our question for episode 239 is something like what is the relationship between law and culture? We'll be discussing Montesquieu's the Spirit of the laws from 1748. For more information, please visit partiallyexaminedlife.com this is Mark Linsenmayer, driven neither by virtue nor honor nor fear in Madison, Wisconsin.

0:23 Seth: This is Seth Paskin, more sensitive to pain and sensual pleasures in the temperate climes of Austin, Texas.

0:30 Wes: This is Wes Alwan, checked and balanced in Cambridge, Massachusetts.

0:34 Dylan: This is Dylan Casey, not flinching while being flayed in Madison, Wisconsin.

0:40 Wes: You're such a Muscovite.

0:41 Dylan: Yes, indeed. Northerner, born and bred.

0:45 Mark: So we picked another 700 some page

0:48 Dylan: book and then we read 60 pages of it.

0:51 Mark: Yes, I like to look at online syllabi and we found one from a Yale political philosophy class. So we are looking at Books 1 to 3, Book 11, Chapters 1 to 6, Book 14, Chapter 1, Book 19, Chapter 27, and Book 20, Chapters 1 through 4. Oh, and the preface. And there was secondary material.

1:10 Dylan: It's clearly the founding fathers selection, except for the crazy climate stuff.

1:15 Mark: Yes, I believe that the title of the lecture that this accompanied was about the separation of powers, but you have to have the stuff at the beginning of the book to figure out what he's doing this for. And yes, the weird climate stuff. Apparently, according to this professor, he was the first ecologist. He was the first one to really express a strong opinion that what laws a country had relate in some way to its climate. If we need to give a one sentence summation of the book is that he's inventing political science, that he's trying to determine the not just what laws would accord with universal justice or something like that, but what laws by nature go with each type of government.

Right. In other words, if it doesn't have those laws, it's going to be unstable. So, like the logic internal to a structure. And likewise how culture and law fit together, how religion and law fit together, how economics and law fit together, and how all those things fit together with each other.

2:10 Dylan: I think that's right. And the way that he speaks about moderate governments of liberty, he is both trying to articulate a science of how government works, but also he seems to be a partisan of a certain kind of stability and moderate government and commerce. I mean, like I said, the founding fathers of the American republic clearly read this Guy and then wrote the Constitution.

2:36 Mark: And the French Revolutionaries should have read this guy. It seems like.

2:40 Wes: Yeah, a lot of it looks so familiar because a big part of this is based on his analysis of what's going on in England, where he spent some time. He traveled around quite a bit. And he seems to like the way the English are doing things. And, of course, that forms a precedent for the American system, which is really interesting to see. So all the stuff that we're familiar with, checks and balances and separation of powers and a jury of your peers and all that shows up here. And to those of us who didn't know about Montesquieu. And that's surprising.

3:12 Mark: Yeah, just a little more historical. When I originally started reading this, I had no idea. Okay, 1748, that date means nothing to be like, what does that mean? But this is seven years before Rousseau's Discourse on Inequality, so before his Social Contract as well. This is after Locke and Spinoza and Hobbes and Descartes. Those guys are all 1600s. The Spinoza tractatus is 1677. Or no, rather his Ethics. So it was when he died, was then. So Locke is 1690, his big political work that we discussed. So those have been sitting around for quite a while. He is building on those folks. He discusses Hobbes briefly in what we have here. And despite what I just said, he and Rousseau are taken to be foundational for bringing to light the ideals that gave rise to the French Revolution.

3:59 Seth: Right.

3:59 Mark: That he. As Dylan said, there's something very conservative about him. And Edmund Burke was also influenced by him. And in England, he does clearly seem to think that more liberty is better. So we can kind of talk about what that means, like more liberty in what situations and for what kind of people. So it's not unqualified, but he definitely feels like a lot of monarchies. Right. And he was. France was an absolute monarchy at the time he was writing this. But a lot of them could be much more liberal. And some things about them, like you might think, well, the more powerful the monarch, the more stable the monarchy is going to be.

But he argues specifically that. No, no, no. Like Edmund Burke argues later, to have a noble class to counterbalance. So that's part of this separation of powers kind of thing, is that it's not just in a republic, but even in a monarchy, really, in anything, separation is always going to be better.

4:50 Dylan: Yeah. Because of preference for stability. When we get to those analyses of the. Essentially, he breaks it into three forms of government. Republic, democracy, aristocracy, and despotism. His analysis of the genesis of that is very different than someone like. And then Hobbes, his presentation of State of Nature is also different than.

5:11 Wes: It's more like Rousseau. Yeah.

5:12 Dylan: So that'll be interesting stuff to go through. The beginning is about what he means by this idea of a spirit.

5:19 Wes: Yeah. What does he mean?

5:21 Dylan: He says at the end of the first part, page nine, he's going to examine the spirit of the laws. The spirit consists in the various relations that laws have with various things. So I took it to be that it's the animating mechanisms. He has this very mechanical language. And this aligns with what Mark was saying about a kind of political science, about how the mechanism of law works in relationship to kinds of governments, and that there are characteristic mechanisms for those different kinds of governments and there's variation in between them. But he'll speak of a kind of an animating spirit for each of the different kinds of government.

6:04 Wes: Yeah, I think it'll come down to what he'll also call passions, Right?

6:08 Dylan: Yep, exactly.

6:10 Wes: So it'll turn out, for instance, that the principle of a monarchical government will be honor.

6:16 Dylan: Yep. It's the motivating spirit. I guess the word that is translated as spirit is esprit. And there's a way in. I think of it as the prime mechanism. So in an aristocracy, you would say that the government and the people and the structures of government are oriented to honor and to cultivating the privileges associated with honor. And your progress through the society and culture are surrounded by honor. And the ways of judging good and bad are motivated by honor.

6:51 Wes: It's the sort of thing that perpetuates the structure and keeps it intact. So in book three, he'll talk about this in terms of principles. So what's the nature of a monarchy is different from asking what its principle is. And the principle is the thing that makes it function. The whole point of talking about a spirit here is to say it's not just that laws are these things that you somehow arbitrarily decree, and then they form the society that's a function of that set of laws. There has to be ways in which the laws are enforceable, whether it's by honor or fear or some other mechanism. There's got to be mechanisms by which they actually can form a society. And when you get at those mechanisms and principles, you're getting at the spirit.

7:40 Dylan: In his analysis, there are characteristics of sorts of laws that are associated with spirit. The spirit of individual sorts of government.

7:50 Mark: Incentives, I feel like, is the big missing word here that is how modern political scientists and economists would talk about all these things. So in a despotism, right, one person has absolute power. Everybody else is really a slave. In that case, it really is like, the more powerful the despot, the more stable it's going to be. So the motivating thing is fear. That's what's going to keep everybody in check and keep the despot in power. So in that way, he sounds like he's almost in that section being Machiavelli. Even though he. When he gets at specific examples, he's like, oh, yeah, and those, you know, turkey is a despotism and it's time and it's just horrible.

8:28 Wes: And they turn out not to be very stable.

8:30 Dylan: If they're stable, they're not robustly stable, Meaning that once they start toppling, they just explode. There's no robustness to them at all.

8:40 Mark: But they're not going to explode into one of the other forms. They're going to explode into a different tyranny, into a different despotism. Somebody else is going to just take power. Building a monarchy or a republic is difficult. Is like this act of construction. And you have to have cultural factors and legal factors and institutions and all these things. And as soon as corruption creeps into one of those forms, it has a gravity toward despotism, whereas despotism creeps itself like, well, it's already corrupt by its very nature. So corruption is not going to make it worse, it's just going to make it switch hands.

9:12 Seth: So we've kind of like touched on. Heard a lot of thematic elements here in this early parts of this. But I didn't realize that Montesquieu was so revolutionary, as you'd put it out, Mark, in the introduction. But one of the things that struck me about this is that he's saying that there's a character. We talked about kind of the superfluousness of the climate section. But he believes there's character to a people, and it's driven by geography and history and the physical aspect of the country and the fecundity of the land and all of these things.

And it determines a certain aspect of the character of the people, which he'll at some point talk about as the civil state. And he thinks that the appropriate sort of government is dictated by this civil state of the people. So this is not the Prince. He's not outlining the ideal government of one sort or another. He's not proposing. He's saying, these are the things I've observed. There are these different Types of governments and the success or failure of those governments to sustain themselves in large part is related to how appropriate they are fitted to the character of the people.

10:27 Mark: Yeah. So even despotisms, some despotisms are going to be more stable than others if the people themselves are more childlike and indolent and uninspired.

10:38 Seth: He's hostile to despotism, but he's also willing to say that there are some cases where it makes more sense than others.

10:45 Mark: I was so blown away when first reading, actually, I was listening to the audiobook. I listened all the way through book 19 on the audiobook, which I really recommend the Librivox version. The guys. I really enjoyed the person who read it. But, yeah, I was remembering Nietzsche's little offhand quip about, yeah, people, if you're in the south, it's really hot and you just lie around and it's really hard to get anything done. But if you're in the north, the peoples of the north, they're so hardy because they have to live in all this. I don't know if he read Montesquieu, but, like, that's 100 plus pages, I think, of this book is going on that theory. So it's not even a racist thing, although it's certainly racist adjacent. Because if you Northern people move south, then you're going to get just as indolent and feckless.

11:33 Seth: He doesn't think they're permanent conditions. It's just the climate affects you.

11:37 Dylan: If you move to the south, you become delicate, weak and sensitive. But if you move to the north, you'll become robust and strong and be able to withstand flaying.

11:47 Seth: So the three of you live in cold climates, or at least climates that have seasons. And I live in Texas. Am I weak, effeminate, given to sensual pleasures? And compared to the three of you, it's very possible that I am.

12:01 Mark: I think the powerlifting seems to speak against that. Right. He's not a determinist. He just thinks that these are, again, incentives. These are sort of baselines. So if you, as you do, Seth, pursue an active lifestyle and employ powerlifting. Is that what it's called, the type of weight training you do?

12:21 Seth: Olympic lifting?

12:22 Mark: Olympic lifting, yes. Post another video of you doing this to astound our listeners. Yeah. So that would be a good counter to the natural state of being in the South.

12:32 Seth: I guess the important point is that what Montesquieu is driving at is not that there's an absolute form of government that's good or an absolute state of human nature. That's appropriate, I think. He's conservative with a small C in the sense that he's in favor of stable governments that conform to fixed laws. He doesn't mind if it's a monarchy. He doesn't mind if it's an aristocracy. He's not in favor of despotism and instability that's driven out of not having fixed laws and not having an ordered society. So he's conservative in that respect.

And I think what he's trying to show is that you can have multiple different kinds of governments that fit this model, that succeed in bringing stability. And we'll talk about commerce, I'm sure, at some point. But if the government is suited to the people and if the leaders govern according to a set of fixed laws and if there is a certain amount of stability and prosperity, that's about as much as you can hope for. Right. He talks about. He's like you. You have no idea how hard it is to just get that. And if you get that, you should be happy with it.

Yeah.

13:41 Dylan: And the difference will then be variations of the kind of feel of each of those communities. Right.

13:49 Wes: There is a sort of essential structure. And we know that the kind of democracy we have in the United States grows out of what Montesquieu is observing, which is a monarchy with checks and balances, with a parliament that keeps the monarchy in check. So structurally, there's a lot of similarities, as we said in the beginning. So juries of peers and the kind of common law stuff that's already there in England, that became part of our society, it's there. And so it's an important similarity in structure whether or not you have a president or a monarch.

It seems in a way that there's something more important about that structure, say, of checks and balances and separation of powers, than just saying, oh, this is a monarchy and this is a democracy. As he points out, democracies and aristocracies, for instance, you can't tell whether there's freedom, liberty by just saying, oh, it's a democracy. That could be very close to despotism, or it could be a despotic kind of quote, unquote, democracy.

14:48 Dylan: There are these. I guess you might think of them as cultural, but institutions that aren't, strictly speaking, governmental. But it's the disposition with respect to freedom of the press and a freedom of religion that are clearly in there, at least in terms of the republic, that's oriented towards liberty.

15:06 Wes: Yeah, we should talk more about that, because it's one thing to say, yeah, we have this structure, this is the way things go. It's written down in the Constitution. The executive branch can't do this, the legislative branch can't do that. But if people ignore that and it's not part of the mores of the population to actually respect all of that stuff, then it makes no difference what's written down.

15:27 Mark: I feel like since we brought up liberty a couple times, we should just throw out his definition and come back to it in more detail later. But this is the material from book 11, just political liberty. This is page 157. Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security. And in order for him to have this liberty, the government must be such that one citizen cannot fear another citizen. Well, according to the Stanford article, given that basic condition of safety, Montesquieu does want people to have as much freedom as possible. And you mentioned freedom of press. And there are other things he picks out specifically in what we read. Fundamentally, it is gaining the benefits of society that in a despotism, you can just never be sure.

16:10 Seth: Right.

16:10 Mark: Even though Hobbes might think, oh, it's so much better than the state of nature that we'll just put somebody in charge and no matter how, even how unjust that person is, it could be a despot, that's still way better than the state of nature. But he thinks that you're not going to have liberty under that because the despot could just decide on a whim to kill you.

16:27 Dylan: And he also disagrees with Hobbes on what the state of nature is.

16:31 Mark: Yeah.

16:32 Wes: Do we want to go back to that since it's at the beginning? Or we could talk more about liberty later because it's a little bit confusing.

16:38 Seth: Yes, agreed.

16:40 Wes: But yeah, one of the interesting things about. So this is chapter one. He's starting out by drawing the comparison and contrast between positive law kinds of things we have in a society. And then laws of nature. And of course, laws of nature are invariable. They can't be disobeyed by material things. Everything that's material, including human bodies, have to obey those laws. And then you get these legal laws where the important distinction is that they can be disobeyed.

17:09 Mark: There's a thing in between. It's not just the legal, in other words, the positive laws. But there are natural laws in the moral sense. Right. That positive laws can or cannot conform to.

17:19 Seth: I think it's worth reading the laws of nature. Yeah. A man in the state of nature would have the faculty of knowing rather than knowledge. It is clear that his first ideas would not be speculative ones. He would think of the preservation of his being before seeking the origin of his being. Such a man would at first feel only his weakness. His timidity would be extreme. And as for evidence, if it was needed on this point, the savages have been found in the forests. Everything makes them tremble, everything makes them flee. In this state each feels himself inferior.

He scarcely feels himself an equal. Such men would not seek to attack one another. And peace would be the first natural law. Hobbes gives men the first desire to subjugate one another. But this is not reasonable. The idea of empire and domination is so complex and depends on so many other ideas, it would not be the one that they would have first. Hobbes asks, if men are not naturally in a state of war, why do they always carry arms? And why do they have keys to lock their doors? But one feels that what can happen to men only after the establishment of societies which induce them to find motives for attacking others and defending themselves is attributed to them before that establishment, we're

18:32 Wes: talking about laws of nature. Just to back up a little bit. These are pre social laws right before the establishment of society that follow. He says they're derived from the constitution of our being. I don't know if there's a kind of virtue ethics to that. I mean, the derivations he's giving kind of illustrate that. So the one Seth is, you know, these are kind of derivations. So the first law of nature is basically that from the beginning we're interested in peace, not as Hobbes said, war, which is kind of very similar to Rousseau, who wants to challenge Hobbes as well. But why are we interested in peace? Because we're weak, fearful and focused on peace, self preservation. And he's going to do that. For these four laws make a similar sort of derivation from just the kinds of beings that we are naturally.

19:17 Mark: But the whole reason that he said the beginning of Seth's quote, there was a man in the state of nature would have the faculty of knowing rather than knowledge. The reason that that weird thing is in there is because he's introduced this, that the most important natural law is the idea of a creator and us being led toward him. But of course, you can't say that that's the first thing we learn. What we have implies the existence of a God by we feel inferior, we feel timid. So by feeling inferior, he's kind of doing the same trick that Descartes was doing in proving that God exists, that we just have this natural sense of lack.

19:53 Wes: I didn't take it that way. I just. I took that as him doing a gesture saying, look, I'm about to spell out these four natural laws and it's just the order in which they actually occur in time. And I'm not trying to diss God. Awareness of God is the most important natural law that we have. It just doesn't happen until much later, until we're in society.

20:14 Mark: I agree that he throws God out there and then really doesn't have a lot to say about it. Right.

20:19 Wes: I don't think he's deriving the first natural law from God. I think he's just giving us a little caveat there.

20:25 Mark: I mean, that seemed like a pretty direct quote on the laws of nature. Prior to all these laws are the laws of nature so named because they derive uniquely from the constitution of our being. To know them well, one must consider a man before the establishment of societies. The laws he would receive in such a state will be the laws of nature. The law that impresses on us the idea of a creator and thereby leads us toward him is the first of the natural laws in importance, though not first in the order of these laws.

20:49 Wes: What he's saying there is that even though this is very, very important temporally, it comes later. It comes in society, obviously, and then

20:57 Mark: starts exactly what Seth read. Man in the state of nature would have the faculty of knowing rather than knowledge.

21:01 Wes: Now he's explaining this, he's saying, look, early on, we're not going to have an idea of God, even though it's the most important. It's not prior in a temporal way, because we're not speculative creatures at that point. We're just thinking about self preservation. So the timidity and the weakness and self preservation, that's not because of an awareness of God. The segue to that is just the God is the speculative thing, which isn't the. It's just not on our minds at that point. We have other fish to fry. More urgent concerns.

21:29 Mark: I think we can agree to disagree on the interpretation. It's very unusual. Let me just say that I think, in fact the intro to the Cambridge said, unlike his predecessors, Montesquieu didn't rely on this notion of natural law, which I then reading this section like, well, that's weird. He doesn't make much of it in terms of natural law being God's will or something like that.

21:50 Wes: Exactly.

21:50 Mark: Or the whole like thing that Spinoza has to do in figuring out How God as something that doesn't even have a will, so to speak. In other words, it doesn't have a human sensibility, a will in the ordinary. You know, there's just all these theological problems. Once you actually take that seriously, that he clearly doesn't. He's just setting this up and putting it aside. I feel like it orients the whole thing pretty naturally. If Montesquieu is the guy that created the idea of spirit, right, Being something that is over and above any individual, that is the spirit of the law, the spirit of the society, think of what Hegel did with that. Hegel ultimately made spirit be the thing that when it was completely self fulfilled, was the self fulfillment of basically Spinoza's God. So there's a very clear path to theology in here. But anyway, he doesn't take it.

22:41 Wes: I think why the Stanford article would say something like that is these are non normative, right? He's just saying what we tend to do. He's making observations about human psychology and sociology. So the first one, we want peace. Then we have needs and nourishment, we desire sex, we're social, we want to live in a society. Those are the types of things that he's observing. Not thou shalt do this, thou shalt do that, and that's what's natural.

23:04 Mark: It is though weird. So backing up even further, Book one, chapter one, he says, as you said earlier, for, for natural laws as they apply to non intelligent beings, it's just like one billiard ball hitting the other. It's just what science describes. The intelligent world is not governed as the physical world is. The intelligent world doesn't follow these laws consistently. Why? Well, because we're limited. For one thing, we're not God and subject to error. Also because we act by ourselves.

23:32 Dylan: But he doesn't say anything about God there. I mean to me, even the notion of this idea of the Creator, that's in the beginning of chapter two. One interesting aspect of this whole thing is that he sort of inverts it. He doesn't say that there are these principles that then get laid upon the world is he builds it up from the beginning of things. In particular, I would say, if anything, God is prominently absent from being a motive force in any of this at all.

23:59 Wes: For clarification, in chapter one, he's distinguishing positive law from laws of physics. Right? Laws of nature. Positive law and natural law are distinct. Is natural law. And positive law is the type of thing that we have in a given political order or society, country laws made by human beings Are positive law. Natural law is supposed to exist prior to that. And so that's what he's talking about there. So I think it's like the question of whether natural law is normative for him. It's a little bit unclear to me. It would be, I think, for most philosophers. In chapter two, he's not giving us anything normative. He's talking about human nature.

24:40 Mark: I just don't think it's ambiguous at all in here, this. In chapter one here, though, examples of primitive natural laws. Assuming there were societies of men, it would be just.

24:50 Wes: Where are you reading?

24:51 Mark: Sorry, Page four, third paragraph. Before laws were made, there were possible relations of justice. Therefore, next paragraph. One must admit that there are relations of fairness prior to the positive law that established them. So there are normative natural laws that are contingent on. If there were societies, it would be just to conform to their laws. That's weird. That's like a primitive thing. Before any societies exist, if there were intelligent beings that have received some kindness from another being, they ought to be grateful for it. This is just that kind of like fitness rationalist take on ethics that we discussed. As a contrast to Hume, if one intelligent being had created another being, the created one ought to remain in its original dependency.

25:33 Wes: Right? Which is a weird. Which is a weird.

25:35 Mark: Yes, that's really weird.

25:37 Dylan: I took him as saying that there's something primitive, a notion of justice that gives rise to traditions and common laws that are prior to law. In the way that he's speaking of positive law that people write down and then they speak of it as being the laws.

25:54 Wes: I mean, what's interesting about this is Mark is right. He's clearly saying that there's normative stuff that precedes positive law. But then when we get to chapter two, we're not hearing about that. He's defining the laws of nature and none of them are normative. It's odd.

26:08 Mark: The reason I'm kind of dwelling on this is because I've been trying to figure out with his whole project what kind of laws, if you want to say a society, if it's going to be a monarchy, should be constructed in this way. Is that a purely prudential kind of thing? Like, in other words, the monarchy will collapse if you don't do these certain things. So it's. There's something inherent, you know, just like if you were making a house. You don't need normative claims written into the fabric of the universe. It's just the kind of naturalistic, you know, if you want to build a house that's strong.

Make sure to. Whatever the relevant architectural tips are to do that. And is that all he's saying, or is there some. Maybe it's just one in the same as to say that for something to fulfill its potential is just, you know, like Aristotle would describe it. There's no use of telos in here, but I think that's just because we'd had multiple centuries of translating Aristotle's talk about telos into talk about natural law, but you could still see the whole idea. So he doesn't, you know, Montesquieu never use. Says, I don't think it's the essence of a monarchy to do this or whatever.

But, you know, he talks about the nature of it. There are other words that sound less scary that are basically doing the same thing. So if you have the whole idea that for something to be in accordance with natural law is to be in accordance with God will, you know, you can give that in the same way Aristotle would a divine backing and have a grand picture of an ordered universe. I think that is ultimately the tradition that he's working in. That even though you can subtract it and talk him as a pure scientist, I think as the other early scientists we've read have shown that not necessarily an atheist or anything, he's certainly seeing

27:49 Dylan: things as being structurally related to one another. And. And the word that he uses is principle. So there's a principle of monarchy and a principle of democracy, and there's a principle of despotism. And in this part of it, we have the laws of nature, and then we have the positive laws that are the way in which you have society born out of it. And then the rest of it ends up being ways in which those laws are characteristic of different forms of government and the relationships that those positive laws have with one another and features of those positive laws.

28:28 Wes: Should we talk about positive laws in chapter three a little bit? Because this is another interesting part, you know, an extension of his disagreement with Hobbes. Right. Which is that the state of war begins in society because we become stronger, essentially. You know, society as a union of strengths is stronger. And then we identify with that. We identify with the power of the society or the state, and that makes us more warlike. And then we need laws to say, hey, you can't do that. The things that we didn't need in the state of nature. So it's a really fascinating reversal.

29:01 Dylan: We lose our feeling of weakness, and then there's two states of war.

29:05 Wes: Right. Between nations and between individuals.

29:08 Dylan: Exactly. Yeah.

29:09 Mark: I'd never heard that term right of nations before. Considered as inhabitants of a planet so large that different peoples are necessary. They have laws bearing on the relation that these people have with one another. That is the right of nations.

29:22 Dylan: I mean, isn't that just sovereignty? National sovereignty?

29:25 Seth: I think so.

29:26 Mark: Is national sovereignty all there is to dealing with other nations? Right. It seems like there's more than just merely saying my nation is sovereign in terms of how exactly you're going to deal with the others. Do you try to engage in conquest all the time? Do you.

29:39 Wes: You get to defend yourself. Other nations don't have a right to make laws for you, for instance, or to interfere in your elections or in some important way.

29:49 Dylan: The birth of the United nations as an institution is an attempt to regulate the rights of nations in between nations. Before that, basically, it's a free for all. And there are something like. I want to use the word common law. But there are individual negotiations between nations that establish peace or establish war. And conventions regarding whether or not you can take territory and expand your own dominion. And whether or not that's legal or whether or not that's right and stuff like that. Those are rights of nations.

30:23 Mark: Yes. And it's just difficult to distinguish when he's talking about, again, sort of maybe normative versus descriptive. In other words, everybody that has a foreign policy uses a right of nations. And so he talks about the Iroquois or something that eating their prisoners. Like even they are using a right of nations. And it's just. It's not one that is founded on true principles. So page eight, right of nations is by nature founded on the principle that the various nations should do to one another in times of peace, the most good possible. In times of war, the least ill possible. Without harming their true interests. So that's the underlying natural law normative claim behind this.

31:04 Dylan: I mean, you get in the section on positive laws. After he aligns right of nations and political right and civil right. And we have these two different states of war that. The state of war between nations themselves. And the state of war between individuals. You get the union of individual strengths. So you get the notion of a political state. And I think you get the first inclination of his bigger project is that in a natural way, political states align with the people. So sort of middle of page eight, the government most in conformity with nature is the one whose particular arrangement best relates to the disposition of the people for whom it is established. So you get this theme immediately of interaction between the culture of the people, the laws of the people. And the kinds of government that they have.

31:53 Wes: Just a little bit later, he's going to give us a list of things. So the laws should be related to the physical aspect of the country, to the climate, be it freezing, torrid or temperate, to the properties of the terrain, its location and extent, to the way of life of the peoples, be they plowman, hunters or herdsmen. They should relate to the degree of liberty that the Constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners. And then finally, the laws are related to one another, to their origin, to the purpose of the legislature.

32:28 Mark: What did you take that the Constitution can sustain? That just seems like a weird outlier in there.

32:33 Wes: What's interesting about this reading is you're reminded that the Constitution is not just a piece of paper where the rules are written down. Constitution is like the physiology of the state, or it's the way it's constructed, it's its structure. And so there's an internal structure to different sorts of states. And a degree of liberty for one sort of state is not going to work for another state. And so if you have mainly plowmen or mainly hunters, maybe that's going to differ how much, or maybe it'll differ by climate, how much liberty you have, who knows? But all those factors go together to

33:08 Mark: tell you there's a lot of use of Constitution in this text where I didn't know whether you're talking about like the explicit legal constitution or the makeup.

33:18 Dylan: Yeah, there's a interesting kind of feedback going on where the laws ought to reflect the kind of people in society that are there in order to have the most robust version of whatever you have. But there's also part of that's going to involve something like buy in from those people. So you're going to get alignment by aligning with the people, but you need to have the people reinforcing that. This is where corruption comes in eventually, right, where, you know, the spirit of the laws disappears or gets corrupted and contorted when they're no longer functioning, people are no longer behaving according to them.

And he'll go through some of the dangers associated with that and the reasons why. For instance, checks and balances are part of preserving that spirit. But I guess I'm just thinking that there's part of that activity that you have the checks and balances, but you also have people buying into the checks and balances. Maybe it's more in between the lines here, but the extent to which the Laws and the government are a reflection of the society comes through, but also that the people are in their behavior and their activity, and the things that they hold dear are the animating force that holds that society together and keeps you in line with those laws.

And that, particularly for something like a robust republic, it's genuinely fragile in very important ways, and it requires a kind of constant balance to maintain that.

34:58 Seth: One of the things that's very interesting is that he's just very bald and candid about certain constituencies of people who will be envious and others who will abuse the power. And, you know, when he talks about the motivating spirit of aristocracy is moderation. They're superior to the common people, but they shouldn't show it. They don't want to arouse the anger of the common people. You know, he's got this very pragmatic approach, and what I heard you saying is that there needs to be something consonant between those things, the form of government and the disposition of the people.

The notion of corruption that he introduces, it's a notion of imbalance more than anything else. It's not corruption in the sense that we think of it where they're taking bribes or what have you, it's abuses against the balance that exists. So even if you have money and power, don't be ostentatious, don't show it. If you do, if you flaunt your excesses, if you make the common person feel less than regardless of whether they are or not, then you're essentially corrupting the balance of the system.

36:06 Dylan: Yeah, I mean, I think that the thing that you mentioned with bribes and other kinds of more nominal areas of corruption are like an end state in a despotism, are harbingers of that. And you're right that being out of line with the natural spirit in the way that you described, that kind of balance can cause issues. And in some level, the structure that he lays out is intended to maintain the robustness of that balance.

36:34 Seth: Again, stability. His goal is stable, prosperous societies of whatever governmental constitution. What he doesn't want is despotic states that have no fixed laws and are random and unpredictable.

36:50 Dylan: And he's also not worried about it not being the greatest or the most virtuous. Exactly right. He's not worried about the problem that Plato is worried about.

36:59 Wes: My impression is that he, like Spinoza, he sees freedom, liberty as the proper goal of the state. And that again, you know, with his focus on checks and balances, and it's a very specific prescription that I think

37:12 Dylan: he's giving Us, even though he's agnostic, he speaks in ways of that, yeah, there's a virtue of aristocracy, there's a virtue of republic. He speaks in ways that you understand how despotism is working. But he, to me, clearly has a preference not just for stability, but for liberty.

37:28 Wes: Right? And he's going to be saying, look, okay, jury of your peers, you got a legislature, you got a judiciary, you got the executive branch. They got to be separated, they got to check and balance each other. It's all very specific.

37:41 Seth: But what does liberty boil down to? It doesn't consist in doing whatever you want. It's the right to do what the law permits. And he says it's found only in moderate governments when power is not abused. Essentially, liberty is tranquility. The tranquility, though, that comes from moderation and stability.

38:04 Wes: It's tranquility that comes from knowing that you are safe in a society that basically, to have liberty, right, I have to be able to move around in a society with a certain amount of confidence that requires a few things. One of them is that I know that I'm not going to walk down the street and get murdered by someone because there are actually laws against it and also mores that all fits together. But also I know that, hey, if I avoid committing crimes, I'm not going to go to jail for that. Or I know exactly where I stand. I can say things and not get punished for that.

There are certain things I can't do. All that is very, very clear, then I have liberty. But if all that is really unclear, then I don't. So a lack of liberty is not just about, hey, the government is prohibiting all of these things. It's about there being so much uncertainty that my freedom to do practically everything is curtailed in some sense because I don't know what I'm going to get harmed for doing.

39:04 Seth: I don't disagree with that. But can I quote 155 in our text?

39:09 Mark: It's book 11, chapter three.

39:11 Seth: It is true that in democracies, the people seem to do what they want. But political liberty in no way consists in doing what one wants in a state, in a society where there are laws, liberty can consist in only having the power to do what one should want to do and in no way being constrained to do what one should not want to do. One must put oneself in mind of what independence is and what liberty is. Liberty is the right to do everything the law permits. And if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have the same power.

39:47 Wes: Where does he talk about the safety stuff?

39:50 Mark: Chapter six of book 11.

39:52 Wes: That's where we get the clarification and the stuff about tranquility. Seth, as you pointed out, this is on page 157. Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security. And in order for him to have this liberty, the government must be such that one citizen cannot fear another citizen, and so on. So that's what I was talking about.

40:16 Seth: This by the way, is in a chapter it's titled on the Constitution of England, which you may say that he champions the notion that the security that comes from living in an ordered society which has fixed laws. We haven't talked about the judicial, the breakdown of the three different branches, executive, legislative and judicial. But he does also talk about how the judicial branch should apply the laws to the specific cases. You know, almost pro forma, almost mechanically. He doesn't want the judicial branch to be able to exercise any kind of latitude or opinion that the laws should be so clearly defined and fixed that really all the judges do is apply them to specific circumstances.

And the reason I bring that up is that you live in this society where you don't fear other citizens because you know what the laws are. You know the laws will be enforced consistently and without bias and with the appropriate amount of force from the governing bodies. But that doesn't mean that simultaneously you have unlimited freedom or even semi limited freedom to pursue your own goals. He does say that he believes the more prosperous and the more people have social mobility and all these things, that that's desirable. But I want to just keep coming back to this, that the concept of liberty in his mind is tied to a kind of being secure in your person, understanding your place in the society, understanding and knowing that the laws are consistent and will be applied consistently and that they won't change radically, at least not quickly over time, and that you don't have anything to fear from your fellow citizen, but it says nothing about your positive aspirations in what goals or projects you want to accomplish.

42:08 Wes: So in chapter three, liberty is the right to do everything the laws permit. And if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have the same power. So we see in this the seeds of a Kantian maxim. I don't have the liberty to lie because if everyone else had that liberty, I wouldn't actually be able to get away with that. It's self contradictory that's one of the limits for liberty. It's just that these are structural and functional limitations. You can't say that everyone has the liberty to murder or whatever because you lose the liberty to do it once you're murdered. It's sort of the. The golden rule made into a kind of structural. I think we agree.