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MONTESQUIEU'S PHILOSOPHY OF PUNISHMENT
Author(s): David W. Carrithers

Source: History of Political Thought , Summer 1998, Vol. 19, No. 2 (Summer 1998), pp.
213-240
Published by: Imprint Academic Ltd.
Stable URL: https://www.jstor.org/stable/26217503
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MONTESQUIEU'S PHILOSOPHY OF PUNISHMENT
David W. Carrithers*
Abstract: In spite of his stature as a major figure in the history of political philosophy
and his strong interest in the correlation between liberty and the content of criminal law,
surprisingly little has been written concerning Montesquieu's views on crime and
punishment. Even less has been written about his views on the philosophical justification
of punishment. Unlike Locke, Rousseau and Beccaria, he did not use social contract
theory to justify punishment. Close analysis of Books VI and XII of The Spirit of Laws
(1748) reveals that he combined utilitarian, retributivist and liberal themes in his
approach to punishment, while locating the fundamental justification for the right to
punish capital crimes in the retributivist rationale of doing justice. As noted by Beccaria
and numerous others whom he influenced, moderation in punishments and decriminali
zation of religious offences were key themes in his discussions.
Leon Radzinowicz, the noted commentator on the history of criminal law, once
remarked that Charles-Louis de Secondât, Baron de la Brède et de Montesquieu,
was 'the first notable author of the period to point to a number of defects in
contemporary systems of criminal law and to lay down certain guiding princi
ples for future legislation'. Radzinowicz was careful to note that he was merely
reaffirming the views of earlier writers including G.W. Bohmer, whose Hand
buch der Litteratur des Kriminalrechts (Gottingen, 1816) identified Montes
quieu as the ' Vater der Kriminal-politik'.1 Even closer in time to the publication
of Montesquieu's chief work, The Spirit of Laws (1748), Cesare Beccaria
referred to 'the immortal Président de Montesquieu' and to 'the great Montes
quieu', while acknowledging that 'indivisible truth' had compelled him 'to
follow the shining footsteps of this great man'.2 Beccaria by no means adopted
each and every one of Montesquieu's positions on punishment, but there are
striking similarities in many of the positions they advocated. Both favoured, for
example, moderating the severity of punishments then in use, restricting the
definition of crimes to offences threatening harm to individuals or society,
abolishing the use of judicial torture to arrive at guilt or innocence or to produce
the names of accomplices, avoiding laws that conflict with the natural right to
University of Tennessee at Chattanooga, Dept. of Political Science, 615 McCallie

Avenue. Chattanoopa. TN 374ΓΠ USA
1 Leon Radzinowicz, A History of the English Criminal Law and Its Administrati
from 1750. Vol. I. The Movement for Reform (London, 1948), p. 269.
2 Cesare Beccaria, On Crimes and Punishments (1764). Translated from the Ital
in the Author's Original Order. With Notes and Introduction by David Young (Ind
apolis, 1986), pp. 5, 8.
HISTORY OF POLITICAL THOUGHT. Vol. XIX. No. 2. Summer 1998

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214 D.W. CARRITHERS
self-defence, constructing a punishment

severity of the crime committed, and s
tion in favour of statutory uniform sent
To comprehend Montesquieu's views on
together a good deal of disparate mat
Montesquieu did not have a position th
object of punishment', he asserted, 'his
It is certainly true that Montesquieu's ph
from widely separated and at times eni
did he set forth his philosophy of punis
manner. Accordingly, it is the purpose o
somewhat disconnected and sketchy rem
The Spirit of Laws in order to arrive a
philosophy of punishment. First, howe
philosophies of punishment is in order.
The Philosophy of Punishme
Broadly speaking, philosophers of punis

positions justifying punishment, one uti
utilitarian view holds that punishment
right to punish can only be derived fro
there would be greater distress for societ
be justified. The classic eighteenth-cent
was advanced by Jeremy Bentham in hi
Morals and Legislation (1789). Applying
but to punishments as well, Bentham co
3 The influence of Montesquieu on Beccaria

Graven characterized Beccaria as 'the discip
le droit pénal', in La Pensée politique et cons
de L'Esprit des Lois, 1748-1948 (Paris, 19
Montesquieu and Beccaria differed, however
linking the right to punish to an express so
the pardoning power; recommended the use
refrained from asserting that all phases of a
of calling for jury trials; believed defenda
recommended that punishments rather than
respect differences of rank and station. For
interest in utilizing the spectacle of punishm
means of 'une sorte de pédagogie des châtim
rational choice by devising punishments tha
Catherine Larrère, 'Droit de punir et qual
caria', in Beccaria et la culture juridique d
Michel Porret (Geneva, 1996), pp. 89-108.
4 Radzinowicz, History of the English C
Reform, p. 269.

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MONTESQUIEU'S PHILOSOPHY OF PUNISHMENT 215
to be admitted in as far as it promises to exclude some greater evil'. That greater

evil was an increased volume of crimes that would be committed in the absence
of punishment.5
A contrasting justification for punishment is embodied in the retributivist
position. Retributivists consider punishment justifiable, not on consequentialist
grounds of utility, but rather on grounds of commensurate desert. There are
several varieties of the retributivist position, but in essence retributivism is a
justice-oriented position asserting that criminals must be punished for what they
have done, even if there is no deterrent effect on others.6 The fully sufficient
purpose of punishment is to preserve the proper moral balance by paying
individuals back for the crimes they have perpetrated. If deterrence ensues from
punishment, so much the better, but deterrence cannot provide the justification
for punishment.
In the eighteenth century, the retributivist position was most cogently
defended by Immanuel Kant, who strenuously objected to all utilitarian theo
ries, claiming they improperly regard men merely as means towards ends rather
than as ends in themselves.
Punishment by a court (poena forensis). . . can never be inflicted merely as

a means to promote some other good for the criminal himself or for civil
society. It must always be inflicted upon him only because he has committed
a crime . . . The law of punishment is a categorical imperative, and woe to
him who crawls through the windings of eudaemonism in order to discover
something that releases the criminal from punishment or even reduces its
amount by the advantage it promises ... For if justice goes, there is no longer
any value in human beings living on the earth.7
Careful analysis suggests that Montesquieu combined utilitarian and retribu
tivist perspectives in The Spirit of Laws. He clearly believed that acts of
punishment may achieve, at one and the same time, both utilitarian and retribu
tivist goals.8 Unlike Bentham and Kant, he surely was not a dogmatic philoso
5 James Heath, Eighteenth Century Penal Theory (Oxford, 1963), pp. 219-20.
6 For a useful summary of varieties of retributivism, see Mark Tunick, Punishment.
Theory and Practice (Berkeley, 1992), pp. 84-106.
7 Immanuel Kant, The Metaphysics of Morals (1797), trans, and ed. Mary Gregor
(Cambridge, 1996), p. 105. Italics in original.
8 This conclusion was very much in keeping with prevailing sentiments in France.
The Preamble to the 1670 Criminal Ordinance stressed the utilitarian point that 'criminal
procedure . . . restrains by the fear of punishment those who are not restrained by their
sense of duty' (quoted by Richard Mowery Andrews, Law, Magistracy, and Crime in
Old Regime Paris, 1735-1789 (Cambridge, 1994), p. 299). Punishments in France,
however, particularly capital punishments, were strikingly retributivist. As Andrews has
written, for example, the amende honorable in figuris 'that accompanied most death
sentences for violent capital offense . . . was a secular paraphrase of the sacraments of
confession and penitence. Bareheaded, barefooted, clothed only in the long woolen shirt
of the condemned, wearing a placard hung from a string around his neck that proclaimed

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216 D.W. CARRITHERS
pher seeking to establish, in a philosoph

dominance of either the retributivist or
Furthermore, he added a very strong l
punishment, contending that any justif
for the fullest extent of liberty possib
threatening to persons or property or t
the rights of the accused, and by mode
the relative degree of severity of the cr
at once a utilitarian, a retributivist and
— while also, at times, adopting rehabi
punishment — and he seems to have be
might criticize him for his lack of philo
Social Contract Theory and the R
The most common approach to the justifi

Montesquieu was exploring the subject w
is well known, such theory stresses the
empowered to judge infractions of the
tary forfeiture of a portion of the origin
in a state of nature. The goal of this fo
security. Since the state of nature had b
no constituted authorities to keep the p
condition had proven at best unsafe and
against all depicted by Hobbes. Since ind
had deliberately alienated to state autho
right to punish transgressors of the law
alienation were peace and order, social
punish may appear utilitarian. The emph
new contractual obligations, however,
essentially retributivist justification, si
form their duty to abide by the terms o
by the sovereign authority may be thoug
law dictates. As in a breach of contract
the crime, and carrying a large burning can

daylight to the main door of a church. Ther
and the names of its victims, and then beg fo
(Ibid, pp. 298-9.) Certainly the juxtaposition
tivist rationales has not proven uncommon am
B. Young's references to Hegel, Rawls, B
Utilitarian or Retributivist?', Journal of C
Andrew von Hirsch, Doing Justice. The Choi

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to obey his own will when he is held liable for violating the terms of the
agreement.9
Unlike numerous other theorists of crime and punishment, including Pufen
dorf, Hobbes, Locke, Rousseau and Beccaria, Montesquieu made little use of
social contract theory either in justifying punishment or in explaining the
origins of government, a position particularly noted by the Scots conjectural
historians.10 Although he occasionally spoke of the condition of individuals in
a natural state, primarily in Book I of The Spirit of Laws, he did so mainly to
refute Hobbes's contentions that justice owes its origins to positive rather than
natural law.11 Montesquieu firmly believed that natural law provided param
eters of permissible human conduct and that positive law should not contravene
natural law standards. He declined, however, to trace the origin of political
societies to an original contractarian moment. Instead, in texts presaging the
emphasis later theorists would place on the material means of subsistence as
the key to human history, he implied that humans had always existed in groups,
and that human history is divisible into four distinct socio-economic stages
characterized by a dominant means of subsistence: hunting, pasturage, agricul
ture and commerce.12 Hence his great treatise on the spirit of various laws and
legal systems is devoid of chapters tracing the right to punish to an original
contract; and since he ignored that ready-made philosophical approach to
punishment, we must look elsewhere for clues regarding his philosophy of
punishment. An excellent point of departure is provided by his discussion of
the 'punishment scale' that became so much the theoretical rage in Europe in
the decades following the publication of his work and was designed to establish
the proper relation between offence and penalty in the context of a penal system
in France that afforded judges far more flexibility than Montesquieu judged
compatible with liberty.13
9 For the retributivist connotations of tracing the right to punish to an original

contract, see Young, 'Cesare Beccaria', p. 317.
10 See David Carrithers, 'The Enlightenment Science of Society', in Inventing
Human Science: Eighteenth-Century Domains, ed. Christopher Fox, Roy Porter, Robert
Wokler (Berkeley, 1995), pp. 247-9, 255-9.
11 See Montesquieu' s own explanation of his purpose in his 'Défense de L'Esprit des
Lois' (\T50),inŒuvres complètes,ed. RogerCaillois(2 vols.,Paris, 1949,1951), Vol.11,
p. 1122.
12 Montesquieu, The Spirit of Laws: A Compendium of the First English Edition
together with an English Translation of An Essay on Causes Affecting Minds and
Characters (1736-43), ed. David Wallace Carrithers (Los Angeles, 1977) (hereafter
Spirit of Laws), Book XVIII, chs. 8-21. All translations are from this edition.
13 On the matter of statutory uniform sentencing, Beccaria was more uncompromis
ing than Montesquieu. It was in the context of his discussion of republics that Montes
quieu insisted on the total avoidance of judicial discretion. In monarchies, he asserted,
the judges should always follow the letter of the criminal law where it is precise and its
'spirit' where it is imprecise (Spirit of Laws, VI, 3). Beccaria, on the other hand, asserted
that 'nothing is more dangerous than the common axiom that one must consult the spirit

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218 D.W. CARRITHERS
The Punishment Scale
Montesquieu discussed the proper scale of graduated punishments in two

widely separated portions of The Spirit of Laws. He placed the first of these
discussions in Book VI, and he there struck a utilitarian tone. 'It is an essential
point that there should be a certain proportion in punishments', he asserted,
'because it is essential that a great crime should be avoided rather than a lesser,
and that which is more pernicious to society rather than that which is less'.14
Only a proper proportion between crimes and punishments, Montesquieu here
contended, can signal to the potential wrongdoer the relative punishment danger
of committing a serious crime threatening life or property. Hence it is not sound
penal policy to apply the same severity of punishment to a wide range of
offences stretching from lesser crimes all the way up to the most serious of
felonies, as both the French and the English had done. In France the peine de
mort could be annlied not onlv to homicide, treason and hiehwav robherv. but
also to arson, rape, abortion, infanticide, human and divine lese-majesty, certain
forms of aggravated theft including theft by servants from their masters and
thefts from churches, fraudulent bankruptcy, judicial fraud, attempted suicide,
and unnatural sexual acts.15 The English had taken a similarly broad approach.
In addition to capitalizing murder, rape and high treason, English law also
imposed the death penalty for numerous lesser offences such as burglary,
larcenies of various sorts, certain types of forgery and coinage offences, arson,
rioting, and even such offences as destroying river banks, flood-gates or turn
pikes, making a false entry in a marriage register, disobeying a quarantine order,
and trading with pirates.16 Reserving the harshest penalty of death only for the
most serious crimes would have the desired effect, Montesquieu concluded, of
making individuals stop short of committing those very worst crimes most
threatening to life and property. With a graduated scale of punishments —
assuming as he did a rational choice model of criminal behaviour—individuals
of the law', which may prove 'dependent on the good and bad logic of a judge, on a
sound or unhealthy digestion, on the violence of his passions, on the infirmities he suffers,
on his relations with the victim, and on all the slight forces that change the appearance
of every object in the fickle human mind' (Beccaria, On Crimes and Punishments, trans.
Young, p. 11). In France, judicial discretion stemmed in part from the absence of a
comprehensive criminal code listing crimes and assigning penalties. The Criminal
Ordinance of 1670 addressed mainly complex procedural issues. It was supplemented
by royal decrees stipulating penalties for certain offences, but these decrees by no means
formed a comprehensive criminal code.
14 Spirit of Laws, V I, 16.
15 See Jean-Marie Carbasse, Introduction historique au droit pénal (Paris, 1990),
p. 221; Julius R. Ruff, Crime, Justice, and Public Order in Old Regime France. The
Sénéchaussées ofLibourne and Bazas, 1696-1789 (London, 1984), p. 70; and Rebecca
Kingston, Montesquieu and the Parlement of Bordeaux (Geneva, 1966), pp. 121-2.
16 For an overview of English capital statutes, see Radzinowicz, History of English
Criminal Law, Vol. I. The Movement for Reform, pp. 611-59.

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might decide to commit less serious crimes, but they would think twice before
committing capital crimes against persons or property.
As a result of his advocacy of a graduated scale of punishments, Montesquieu
lamented that in France 'the same penalty is inflicted on the highway robber
and on the one who robs and murders'. Far better, he asserted, was the practice
in China where 'robbers who are cruel are cut to bits, the others are not; because
of this difference, one robs there but does not murder'.17 Similarly misguided,
according to Montesquieu, owing to their failure to proportion punishments to
deter the most serious crimes, were legal systems that applied the death penalty
not only to overt actions constituting high treason, but also to merely speaking
ill of one's ruler,18 and the same ultimate punishment, as in Venice, to merely
carrying a fire arm as to the actual use of that weapon to commit a crime.19
Like Beccaria, Montesquieu displayed extreme confidence in the ability of
properly proportioned, well publicized punishment scales to deter crime. Pun
ishment as crime control was an essential aspect of his orientation to the
criminal law, as was also true of other founders of the so-called classical school
of jurisprudence.20 He regarded acts of crime as matters of conscious choice.
'Men can be unjust', Montesquieu opined in his Persian Letters, 'because it is
in their own interest to act so, and they prefer their own satisfaction to that of
others ... No one is gratuitously wicked; there must be a determining cause,
and it is always one of self-interest. 'Z1 He was convinced, however, that at least
at times the proper set of punishments can literally prevent crimes. 'The means
for preventing crimes', he wrote, 'are penalties.'22 He judged neither religion,
nor morality, nor family influence, nor any other forms of internalized restraints
as fully capable of restraining the human impulse to commit crimes. The
criminal law, on the other hand, could pose just the sort of tangible threat to
human happiness that could stop a would-be thief or murderer in his tracks.
Clearly, then, Montesquieu's model of the potential criminal was not that of a
deviant or a sociopath, fundamentally different from the rest of humankind, or
of the angry or concupiscent person subject to irresistible impulses. Rather he
regarded the criminal as a rational being who knows the punishment risks and
17 Spirit of Laws, VI, 16. It is technically true that under the Criminal Ordinance of
1670 the peine de mort could be applied to both highway robbery and to highway robbery
aggravated by murder, but the capital penalty was rarely applied to robbery alone. Cases
of highway robbery were heard in prévôtal courts without the right of appeal. For an
interesting account of such courts in one of the regions of France, see Iain A. Cameron,
Crime and Repression in the Auvergne and the Guyenne, 1720-1790 (Cambridge, 1981).
18 Spirit of Laws, VI, 16.
19 Ibid., XXVI, 24.
20 On the classical school see Bob Roshier, Controlling Crime. The Classical
Perspective in Criminology (Chicago, 1989).
21 Montesquieu, The Persian Letters, trans. George R. Healy (Indianapolis, 1964),
p. 140.
22 Spirit of Laws, XIX, 14.

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220 D.W. CARRITHERS
makes conscious choices concerning wheth

Avoiding a determinist, or sociological per
factors as potential sources of the criminal
as a matter of free choice that presumed m
that a properly graduated set of punishm
committing those crimes with the severest
inaccurate his psychological assumptions m
rational choice governing the commission
Montesquieu's high regard for clearly writ
of punishment.
Lest we erroneously conclude that Monte
scale proportioned to the severity of the
sively utilitarian or consequentialist point
crimes, we need to recognize that Montesq
of several goals that can be achieved by s
crimes. In common with the utilitarian, th
lishing a close fit between the severity o
punishment. Kant observed, for example,
as 'the principle of retribution, of like fo
and quantity ot punishment be as close as possible to the nature ot the
'undeserved evil' being punished.23 Returning a punishment of like 'quantity'
for a like crime will create a system of graduated punishments correlating
punishment severity and crime severity. Returning a punishment of like 'qual
ity' for a like crime will create a system of analogical punishment where the
offender receives back the same treatment insofar as possible that he bestowed
upon the victim of his crime. To a significant extent, the goals of both the
utilitarian and the retributivist can be simultaneously met through the same
punishment scale, since the same properly graduated scale that is useful in
deterring the most heinous of crimes is also the just punishment scale returning
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However eager Beccaria was to interpret him as a utilitarian, it would be a

misreading of Montesquieu not to recognize the key role retributivist themes
played in his discussion of the punishment scale. Ultimately, he was more
concerned with justice being done than with simply deterring crime and, unlike
Beccaria, he did not choose to give justice a utilitarian definition by simply
defining as 'just' those punishments providing the minimum necessary deter
rence to preserve the social bond.24 Montesquieu was a firm believer that the
principles of justice are prior to positive law,25 and his justice-oriented, retribu
tivist stance towards punishment is particularly apparent in his discussion o
23 Kant, The Metaphysics of Morals, trans, and ed. Mary Gregor, pp. 105-6.
24 For Beccaria, see On Crimes and Punishments, trans. Young, p. 9: 'By "justice",
moreover, I do not mean anything but the bond necessary to hold private interests together.
25 Spirit of Laws, I, 1.

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the fourth class of offences within his punishment scale. This fourth category
of offences included crimes deserving capital punishment and consisted of
actions harmful either to persons or property. Crimes in this fourth and final
category under Montesquieu's schematization were those that, in addition to
attacking the public tranquillity, 'attack at the same time the security of the
subject'.26 In discussing such serious offences as these, Montesquieu employed
the vocabulary associated with the lex talionis approach to punishment. Severe
punishments for crimes against persons and property, he concluded, are 'a kind
of retaliation (une espèce de talion) by which the society refuses security to a
member that either has actually, or intentionally deprived another of his secu
rity' . Such punishments are 'derived from the nature of the thing, founded on
reason, and drawn from the very source of good and evil'.27
Clearly the doing of justice was a key element in Montesquieu's philosophy
of punishment, particularly when it comes to retaliating against individuals who
havp thrpatpn pH thp seeiiritv of others However much hp aHonteH liberal and
utilitarian perspectives to define appropriate procedures, modes and levels of

punishment, his perspective in justifying punishment for wrongdoing was very
much that of a retributivist. He clearly believed that punishment for truly gra
crimes threatening to life or property belongs squarely in the sphere of morali
rather than simply in the sphere of legality.28 Where moral condemnation w
be universal, as with crimes that are truly harmful and injurious, he believe
punishment is readily and most suitably justified on retributivist grounds
Utilitarian considerations of deterrence may provide additional reasons for
punishing serious crimes severely, but he clearly considered the retributivis
perspective fundamental to the underlying justification of punishment.29
The Liberal Justification of the Punishment Scale
As central to his outlook as retributivist and utilitarian perspectives on the

justification and goals of punishment was Montesquieu's strong liberal orien
tation contending that no government should impose punishments dispropor
tionate to the severity of the crime committed — regardless of deterrence gains
that might ensue — because doing so would be destructive of liberty. Defining
liberty as 'security or the opinion of security', he contended that such security
'is never more attacked than in public or private accusations'. He therefore
concluded: 'It is, then, on the goodness {bonté) of the criminal laws that the
liberty of the citizen principally depends.' Nothing is more important to the
26 Ibid., XII, 4.
27 Ibid.
28
For this important distinction see H.L. A. Hart, The Concept of Law (Oxford, 1961 ),
pp. 181-207.
29 For the view that 'the sudden introduction of retributivist logic' in Montesquieu's
discussion of the fourth category of crimes 'jars with the rest of his analysis in this field',
see Kingston, Montesquieu and the Parlement of Bordeaux, pp. 266-7.

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222 D.W. CARRITHERS
human race than 'the rules' to be employ

of these mles must be to render 'the pro
assured and fixed as the very constitution
In addition to achieving utilitarian goals
a graduated scale of punishments linking p
the crime committed would preclude capr
For when the penalty is drawn from the na
no room for the exercise of arbitrary po
particular nature of the crime. Then ther
l'arbitraire cesse); the punishment does not
legislator, but from the very nature of th
man.'31 Where principles of graduated and
operative, however, penalties will likely f
authority and will be excessive. Montesqu
scaled punishments requires strictly anal
crimes there are no strictly identical puni
punishing severely only serious crimes thr
The liberal approach to punishment requ
should be regarded as within a protected sp
preference. The law must not be allowed
This was one of Montesquieu's most b
achieved, he insisted, where individuals po
areas where laws impose no duties or oblig
he asserted, 'principally in not being force
oblige.'33 In addition, the laws must not
avoid tyranny, manners and customs mus
the criminal law. In a well known passage
in his chapter on 'The Right to Punish', M
30 Spirit of Laws, XII, 4.

31 Ibid.
32 Jeremy Bentham was practically unique in his willingness to contemplate strictly
analogous punishments. He suggested, for example, that a punishment could utilize the
same instrument used in the crime itself, that an identical injury could be inflicted, and
that the same bodily member could be injured. See his Rationale of Punishment in Works,
ed. Bowring (1843), I, pp. 407-11 as discussed by H.L.A. Hart, 'Beccaria and Bentham',
Atti del convegno internationale su Cesare Beccaria (Torino, 1966), p. 25.
33 Spirit of Laws, XXVI, 20. Hence he arrived at a classic formulation of the negative
concept of liberty as defined by Isaiah Berlin in his Four Essays on Liberty (Oxford,
1969), p. 122. A close parallel to Montesquieu' s line of thought is found in the fifth article
of the French Declaration of the Rights of Man and of the Citizen (1789): 'The law has
the right to forbid only actions harmful to society. No action may be prevented that is
not forbidden by law, and no one may be constrained to do what the law does not order.'
(Quoted in The French Idea of Freedom. The Old Regime and the Declaration of Rights
of 1789, ed. Dale Van Kley (Stanford, 1994), p. 2.

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that does not derive from necessity is tyrannical. The law is not a pure act of
power.'34
It was primarily in Book XII of The Spirit of Laws, entitled On the Laws
that Form Political Liberty in Relation to the Citizen', that Montesquieu dis
played his concern for liberty defined as the absence of unfair or arbitrary
constraints on freedom. There he singled out liberty as one of the chief goals
of government and suggested that there is nothing of greater concern to human
kind than securing innocent individuals against wrongful charges. Therefore
those acting as witnesses in court proceedings and those pronouncing sentence
must not be biased against the defendant. Furthermore, the defendant must be
allowed to be heard in his defence,35 and penalties should be imposed for
peijury by witnesses since if 'the innocence of the citizens is not secure, neither
is liberty'.36 In moderate states, whether republics or monarchies, the formali
ties of justice will be many, and trials will be far from swift, as in France where
the Criminal Ordinance of 1670 imposed so many procedural formulae on both
pre-trial and triai procedures that Montesquieu claimed to have had more than
a little difficulty mastering them, as a président à mortier in the Parlement of
Bordeaux. The rules governing property ownership will be particularly com
plex, and the observation of formalities and rules will serve the purpose of
safeguarding liberty whereas in despotic states liberty is not to be found,
precisely because the civil law will be either truncated or non-existent.37
As he stressed in Book XII, and also in Book XXIX of The Spirit of Laws,
the attainment and preservation of liberty depends on making the content of the
criminal law widely known by means of a clearly written code of laws accom
panied by proper rules of procedure designed to protect defendants who may
be innocent. Furthermore, laws must be sufficiently clear to enable individuals
to know in advance whether their actions are criminal or not, a proposition
34 Spirit of Laws, XIX, 14. The opening portion of the eighth article of the French
Declaration of Rights contains a close parallel: 'The law must lay down only those
penalties that are strictly and evidently necessary.' (Quoted in The French Idea of
Freedom, ed. Van Kley, p. 2.)
35 In France the defendant was heard, but his interrogation was shrouded in secrecy.
Furthermore, defendants were denied the aid of counsel except on appeal. See Adhémar
Esmein, A History of Continental Criminal Procedure with Special Reference to France,
trans. John Simpson (1913; reprinted New York, 1968), pp. 224-9. Concern for the rights
of the accused was later epitomized in J.P. Brissot de Warville, Le sang innocent vengé,
ou Discours sur les réparations dues aux accusés innocens (Berlin, 1781).
36 Spirit of Laws, X 11,2. Existing French procedure had the opposite effect of locking
witnesses into erroneous testimony since those witnesses who retracted or changed their
original depositions after being confronted at a later stage of the trial by the defendant,
were liable to prosecution and punishment as false witnesses. See Esmein, Continental
Criminal Procedure, pp. 23-31.
37 Spirit of Laws, VI, 1-2.

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224 D.W. CARRITHERS
fundamental to all subsequent understandin

laws that define treason as the failure to d
tantamount to despotism since they are bot
example of a law that ought to be considere
cited the law of the barbarian chieftain Hon
one who bought as a serf a freed man and any
What would cause an individual distress, M
'entirely on the degree of his sensitivity' ,39
to vagueness was a provision in the French
what was otherwise an appropriate 'exact
hopelessly broad and vague formula, 'and t
judged in all times' ,40
The goal of Montesquieu's liberal approach
neither to deter crime per se nor to pay back
sake of achieving justice — no matter ho
considered from the utilitarian and retribu
liberal goal was to reduce the number of act
ensuring that criminal procedures were fa
liberty. Hence he suggested that only in im
• r*r*i m η nrariantiAn· f>mnVio
the necessity for complex, time-consuming criminal processes protecting

rights of the accused; established a direct relation between moderate pu
ments and regard for liberty; denied that savage punishments such as brea
on the wheel actually deter crime; contended that retaliatory punishme
should only be used as the last resort when the legal system can be satisfie
no other way ; expressed admiration for the avoidance of corporal punish
among the early Germanic peoples; protested against the use of torture to
confessions; and contended that prosecutions for witchcraft, sorcery and h
will only open the door to character assassination. In addition, he asserted
in order to avoid despotic use of power the crime of high treason must be
narrowly defined, and must be judged by the regular courts rather than
special commissioners;41 argued that only when speech acts become overt
should they be punished; advocated the decriminalization of slander
directed at persons in authority; and attacked laws mandating capital pu
ment for those who fail to disclose conspiracies in which they are not implic
38 Ibid., XII, 7-13.

39 Ibid., XXIX, 16.
40 Ibid.
41 In spite of Parlementary opposition, French monarchs could establish special
commissioners to try crimes, and there could be no appeal of these decisions. See Esmein,
Continental Criminal Procedure, p. 250.

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and laws making debtors answerable for their debts through corporal punish
ments or servitude.42
Clearly in Book XII of The Spirit of Laws we catch a glimpse of Montesquieu
the criminal law reformer consumed by the cause of liberty supplementing our
earlier glimpses of Montesquieu the deterrence advocate and Montesquieu the
retributivist proponent. Himself a former judge in an inquisitorial rather than
accusatorial system that made the judge both investigator and fact finder and
convicted only upon the defendant's own confession, or upon the testimony of
two witnesses (if corroborated by material evidence of the crime),43 he did not
insist on a presumption of innocence or on trial by jury, though he praised the
jury system in the context of English politics.44 He also stopped short of singling
out for objection the procedural rule barring defendants from hearing the
charges against them at the outset of their trials; the rule compelling testimony
by the accused; the prohibition of defence counsel for the accused under the
Criminal Ordinance of 1670; or the right of the royal prosecutor (procureur du
roi) to appeal to the Parlement of their jurisdiction verdicts they considered too
lenient.45 He was not sufficiently critical of the French system with which he
had been formally associated to have contemplated such sweeping reforms as
these.46 Nor did he explicitly attack certain prejudicial sentences then in use,
42 Spirit of Laws,1-2,9, 12, 18,19; XII,5,7,11,13,17, 21, 22. Ibid., Book XII,
ch. 22, had originally contained an attack on lettres de cachet condemning individuals
to prison without trial, but Montesquieu removed this text prior to publication. See De
l'esprit des loix, ed. Jean Brèthe de La Gressaye (4 vols., Paris, 1950-61), Vol. II, p. 382.
For an important revisionist view of lettres de cachet stressing the strong public support
they enjoyed as a means by which French families curbed recalcitrant and delinquent
family members before they committed crimes for which the penalty might be death, see
Brian E. Strayer, Lettres de cachet and Social Control in the Ancien Régime, 1659-1789
(New York, 1992).
43 The mere presence of testimony by two eye witnesses was not in and of itself
sufficient to ensure conviction. A careful investigation of the crime preceded the
testimony of any witnesses, and without a confession by the defendant, in addition to eye
witnesses testimony there had to be convincing material or circumstantial evidence, or
written evidence of guilt. See Andrews, Law, Magistracy, and Crime, pp. 439, 442-3.
44 Spirit of Laws, XI, 6. Later on, jury trials were advocated in France by the Chevalier
de Jaucourt in his article 'Peers' in Diderot's Encyclopédie and by Voltaire, Condorcet,
Linguet, Dupaty, Bergasse and Marat, among others. SeeCarbasse, Droit pénal, pp. 303-4.
45 In addition to being compelled to testify, the accused had to swear an oath (le
serment), which caused Lamoignon, premier président of the Parlement of Paris, to
complain at the time of the drafting of the Criminal Ordinance of 1670 that the accused
were being forced to choose between perjury and self-incrimination. See Carbasse, Droit
pénal, p. 149.
46 For an extended analysis of the prerevolutionary criminal justice system in France
suggesting, by implication, that Montesquieu' s measured criticisms were appropriate and
that later Enlightenment critiques by Beccaria, Voltaire and others were substantially
overdrawn, see Andrews, Law, Magistracy, and Crime, passim·, and Ruff, Crime, Justice
and Public Order, p. 63.

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226 D.W. CARRITHERS
though his opposition to them may cer

such sentences among his recommended
crimes he discussed.47
The Classification of Crimes
Nowhere does Montesquieu's liberal philosophy emerge so clearly as in his

desire to decriminalize certain offences considered crimes under existing
French law. He believed no criminal offence occurs where otherwise harmless
acts are simply distasteful to some, or disfavoured by those in power. Manners
and customs, he asserted, in texts to which Beccaria and others paid close
attention, should be regarded as completely outside the domain of the law.
Unsatisfactory or displeasing manners and customs should only be changed by
'introducing other manners and other customs' rather than by imposing criminal
sanctions on those who cling to them.48
By dividing offences into four distinct categories running from the least
serious religious misconduct, which he believed should be decriminalized, to
the most serious crimes threatening lives and property, Montesquieu made an
important advance over existing French criminology.49 There was no such scale
in eighteenth-century France. Article 13 of the French Criminal Ordinance of
1670 listed penalties in order of severity but did not link specific punishments
to specific crimes. The royal edicts on the subject of punishment, both prior to
and after 1670, often mentioned specific punishments for specific crimes, and
sometimes even specified mandatory punishments, but these edicts certainly
did not constitute, even in the aggregate, a scale of punishment. Moreover,
French judges were left with very substantial discretion.50
47 These prejudicial sentences included the mise hors cour verdicts that did not fully
acquit defendants when guilt could not be proven and plus amplement informé verdicts
releasing the defendants but subjecting them to renewed prosecution should additional
evidence be forthcoming. Such verdicts subjected defendants to mort civile which barred
them from holding public office or testifying in court or making out a will (Ruff, Crime,
Justice and Public Order, p. 182).
49 Concerning this aspect of Montesquieu's criminological theory, Radzinowicz
observed: 'Montesquieu's classification, although somewhat rudimentary, is important,
inasmuch as it was one of the first attempts to divide criminal acts into groups in
accordance with their gravity and to revise the scale of punishments. It constituted a
valuable point of departure for future legislators.' (Radzinowicz, History of the English
Criminal Law, pp. 273^1.) Aside from allowing him to pursue a decriminalization
agenda, this classification also saved Montesquieu from the nearly impossible task
Jeremy Bentham later tackled of classifying every conceivable sort of crime and
suggesting a corresponding, analogical punishment.
50 SeeCarbasse, Droit pénal, pp. 217-18; and Esmein, Continental Criminal Proce
dure, p. 239. Even when rather specific legislation did exist, it 'was never strictly applied
by the Parlements' (Carbasse, Droit pénal, p. 251). Carbasse's gloss on eighteenth
century classifications of types of crime is instructive: '(P)enal law was above all

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The lowest category of offences in Montesquieu's punishment scale were

those against religion.51 Vigorously opposed to conflating the religious notion
of sin with the secular concept of crime, he argued for the decriminalization of
religious offences substantially before Beccaria in Italy, or Voltaire in France,
or Jefferson in America took up the same crusade. Sins he considered an offence
to the Deity and to the religious community. Crimes, on the other hand, pose
real and tangible threats to the security of individuals or to the government.
Since sins are between man and God, 'there can be no criminal matter; the whole
passes betwixt man and God, who knows the measure and time of his venge
ance'. Governments must refrain from all attempts to avenge the deity since
allowing men to adopt the role of fighting God's battles for him will unleash
sentiments nearly impossible to control.52
Montesquieu did not regard sacrilege or blasphemy — or even heresy,
though here the case is a bit more complex — as crimes per se. Such religious
nf rtf fVia fnitVifnl onrl
the orthodox, but this did not raise them to the level of crimes. There
believed nothing more than excommunication through ecclesiastical co
combined with contempt for the offender and refusal to associate with
could be considered just penalties where offences against religion wer
cerned.53 He did include a caveat where heresy was the offence, remark
have not said here that heresy must not be punished; I say that one must b
circumspect in punishing it.'54 It is likely, however, that this one-sen
qualification of his argument for full religious freedom was simply prec
ary since, in other texts on heresy, Montesquieu struck a much more
note. In a scalding and justly famous chapter denouncing the Spanish
tion, for example, he summoned the most exquisite irony to mock the Chr
sense of rectitude in expunging Jewish infidels from the face of the earth
could only have the effect, he was convinced, of displeasing the very G
whom both Jew and Christian alike professed to believe.55 Furthermor
tesquieu pointedly noted that the prosecution of heresy can only prove
practical: the magistrates no longer concerned themselves with clear and distin
fications (classifications nettes) or precise definitions : searching too hard today for
the one or the other runs the risk of committing anachronism, the most glaring sin
historian.' (Carbasse, Droit pénal, p. 253.)
52 Ibid.
53 Ibid.
54 Ibid., XII, 5. Ruff, Crime, Justice and Public Order, p. 73, reports a prosecution
for heresy lodged by the Mayor of Coutras against a subordinate who refused to yield
the seat assigned for the mayor in the parish church! For insightful analysis of Montes
quieu's position on heresy, see Mark Waddicor, Montesquieu and the Philosophy of
Natural Law (The Hague, 1970), pp. 146-8; and Jean Ehrard, 'Montesquieu et L'Inqui
sition', Dix-huitième siècle, XXIV (1992), pp. 333 44.
55 Spirit of Laws, XXV, 13.

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228 D.W. CARRITHERS
lematic, since advocacy of theologica

number of distinctions, interpretation
ignorant people are, the more likely th
heresy.57 Anticipating a line of argumen
son's Bill for Establishing Religious Fr
On Liberty (1859), Montesquieu suggeste
do indeed exist and are made known by
not by means of the power of the state t
over the hearts and minds of men. Impo
means as burning perceived infidels at t
suggest that, unaided by the cruelties of
Montesquieu's conclusion on the subjec
was bold and uncompromising and very
'Penal laws ought to be avoided, in resp
informs us that penal laws have never h
56 Ibid., XII, 6.
57 Ibid., XII, 5.
58 Spirit of Laws, XXV, 13. Montesquieu'
existing policy. A royal edict of 1682 had
though this was moderated by a subsequent ed
fleet for men and service in a workhouse fo
regulated by ordinances of 1510, 1651 a
circumstances, trigger a punishment of the
combination of all three — or even death
énormes, as with the notorious prosecutio
Montesquieu, pp. 122, 125; Carbasse, Droit p
instances of blasphemy were ignored by Fren
simple manie de langage' (Carbasse, Droit
decriminalizing religious offences was widel
the meeting of the Estates General in 178
decriminalized both heresy and magic (sorce
See Antoinette Wills, Crime and Punishmen
p. 42; and André Langui, Histoire de droit
59 Spirit of Laws, XXV, 12. Owing to his as
Parlement of Bordeaux (La Tournelle) fo
first-hand knowledge of the destructive effe
In 1716, for example, the Parlement of Bor
life one Jean Martin, a beer-maker and one
a meeting of Protestants (Kingston, Montes
culminating in Louis XIV' s revocation of the
had closed public offices and certain prof
Protestant churches be destroyed, and had or
homes (Ruff, Crime, Justice, and Public Ord
Montesquieu was attacking, as summarized
ou commentaire de l'ordonnance de 1670 (4 v
on the following proposition: 'the Church an
and consequently of royal justice; nothing i

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Such penal laws do indeed produce the condition of fear that can guide human
actions, but that fear of secular punishment is effaced by the even greater fear
of eternal damnation should one fail to conform to God's law. Hence harsh
penalties in matters of religion will not only be ignored but will also produce a
'hardening of the soul (les âmes deviennent atroces)'.60
According to Montesquieu, religious law and civil law should be regarded as
residing in wholly separate spheres. Religious law seeks to govern the actions
of individuals as persons as they seek perfection in their personal lives. Civil
law, on the other hand, directs the conduct of persons considered in their role
as citizens.61
There are therefore different orders of laws, and the sublimity of human
reason consists in perfectly knowing to which of these orders the things that
are to be determined ought to have a principal relation . . . We ought not to
decide by the divine laws what should be decided by human laws; nor
determine by human what should be determined by divine laws.62
Therefore the Romans rightly punished thefts from sacred places like other
thefts, leaving to canon law the punishment for the sacrilege involved.63 Just as
Jefferson and others were to conclude, Montesquieu understood that there is
protection for religion in such a separation. Only when religious laws actually
conflict with civil laws will there ever be a proper case for laws of the civil
realm to impinge on the laws of religion.64
The second broad category of crimes in Montesquieu's classificatory scheme
consisted of offences against a society's moral code where the moral conduct
in question was between consenting adults and where no one's actual safety or
security was threatened.65 For these sorts of crimes, as for example for adultery,
polygamy and incest, there were often no statutes in the France of Montes
quieu's day.66 Accordingly, judges possessed substantial latitude. In this area
of the law, Montesquieu stopped short of arguing for complete decriminaliza
tion. He was clearly shocked at existing excesses of punishment, however,
lamenting, for example, that the offence of homosexuality might be punished
state than the maintenance of religion' (quoted and translated by Ruff, Crime, Justice,
and Public Order, p. 161).
60 Spirit of laws, XXV, 12.
61 For valuable commentary on this distinction, see Jean Ehrard, 'Présence-absence
de l'individu dans la pensée de Montesquieu', in L'Individu dans La Pensée Moderne,
XVIe-XVIIIe siècles, ed. Gian Mario Cazzania and Yves Charles Zarka (Pisa, 1995),
pp. 643-58.
62 Spirit of Laws, XXVI, 2.
63 Ibid., XXVI, 8.
64 Ibid., XXVI, 10.
65 Ibid., XII, 4.
66 See Kingston, Montesquieu, p. 105.

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230 D.W. CARRITHERS
with burning at the stake.67 As Beccaria

noted that false charges of homosexual con
Where crimes against morals were conce
alties should be, as with all punishments f
of the thing'. What was required, in his
repress the temerity of the two sexes'. App
second category, he suggested, would be
society has attached to the purity of mo
honte), necessity of concealment69 (la con
(/ infamie publique), (or) expulsion from
de la ville et de la société).70 The precise m
presumably be left up to the examining
under existing French procedures.
Though he drew a sharp distinction betw
'interior conduct' (conduite intérieure)
govern the conduct of men as citizens,71
there should be no criminal sanctions whe
bright line suggesting a distinction betwe
public acts that involve one's actions as a
may indeed be regulated by criminal san
67 J. de Damhoudère, in his Pratique judiciai

and C. Le Brun de La Rochette, in his Le pr
explained that burning at the stake was inten
and society and an anticipation of the flames of
however, for sodomy or other crimes against n
sixteenth century on. Between 1715 and 179
demned to fire in Paris, and nearly all of the
well, such as rape, murder, kidnapping or the
crimes against nature increasingly fell under t
rather than the royal courts, and were handle
authorities. In general, only the most flagran
substantial public scandal were punished, though
well seek temporary incarceration through a let
immune to family censure (Carbasse, Droit p
68 Spirit of Laws, XII, 6-7. For Beccaria on
ments, trans. Young, p. 58.
69 Women convicted of adultery were ofte
religious community. If not forgiven by their
would be 'shaved and veiled' in preparation f
Gérard Aubry, La Jurisprudence criminelle du
XVI (Paris, 1971), p. 195).
70 Spirit of Laws, XII, 4. In the cases studi
convictions in the Sénéchaussées courts of Li
ment or some form of confinement' such as a d
deforce for female criminals (Ruff, Crime, J

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conduct may have implications for public order, or even for the stability of
government, particularly in republican governments, where lack of purity in
morals may weaken the willingness of individuals to place the needs of the
commonweal above their own selfish desires.72 Offences against morality,
however, provided they are consensual, should never be punished so severely
as those crimes that harm, or threaten harm, to life or property.73
The third class of crimes in Montesquieu's punishment scale were those acts
that disturb the public tranquillity (choquent la tranquillité des citoyens), by
which he meant offences encompassing 'a simple disruption of public order
(une simple lésion de police)'. This category of offences had not been addressed
under the French Ordinance of 1670, which suggested a division of crimes into
four types: lèse-majesté divine, lèse-majesté humaine, crimes against public
security and crimes against public morality. Offences involving disturbing the
peace or being a public nuisance were punished by prévôtal courts under the
jurisdiction of the Lieutenant Generalcy of Police rather than by royal courts,
a practice that Montesquieu neither specifically approved or criticized.74 Ac
cording to Montesquieu, the penalties for disturbing public tranquillity should
again be 'derived from the nature of the thing' and should be 'relative to this
tranquillity; such as imprisonment (la prison),15 exile (l'exil), corrections (les
72 Ibid., V, 7; VII, 10.

73 Under Article 13, Title 25 of the Criminal Ordinance of 1670, offences against
morals warranted 'defaming' penalties rather than 'afflictive' or 'capital' penalties. Such
defaming punishments could include fines, a severe reprimand, the forced witnessing of
punishment (usually capital punishment), or public shaming, with discretion available
to the authorities in the choice and combination of these penalties. Adulterers were often
given a ride in full public view on a donkey, facing rearward with ankles and feet bound
with rope and with a placard displayed stating the crime committed. In addition, this
penalty might be supplemented with whipping or banishment. Legal infamy accrued to
all defaming punishments as it did also to afflictive and capital punishments. Hence the
defamed individual became perpetually ineligible to testify in either civil or criminal
cases, perpetually ineligible for any public office or commission, and immediately and
perpetually unable to exercise any office the convicted individual might hold at the time
of conviction (Andrews, Law, Magistracy, and Crime, pp. 308-11). The Ordinance of
1670 was sometimes ignored, however, so that afflictive or even capital penalties might
be employed for offences against morals. In 1716, for example, the Parlement of
Bordeaux handed down a penalty of galley service for ten years to an individual who
had impregnated his sister-in-law (Kingston, Montesquieu, p. 114). Among the 1,141
cases studied by Ruff, two involved the death penalty for crimes against morality (Ruff,
Crime, Justice, and Public Order, p. 59).
74 Kingston, Montesquieu, p. 111.
75 There is now a wide range of literature demonstrating that Foucault was incorrect
in his pronouncement that the prison as a mode of punishment was suddenly created at
the end of the eighteenth century. For a clear path into the growing body of literature
critical of Foucault's tendentious conclusions on the nature and purpose of the French
criminal law of the Old Regime, see Richard F. Hamilton, The Social Misconstruction
of Reality. Validity and Verification in the Scholarly Community (New Haven, 1996),

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232 D.W. CARRITHERS
corrections), and other like chastisements

turbulent spirits and reducing them to
included in Book XXVI of his work, Of Laws in Relation to the Order of
Things Which They Determine', a ringing denunciation of any system of justice
that conflates simple breaches of the peace (les matières de police) with truly
serious crimes that threaten the security of individuals or society.77
Montesquieu's fourth class of crimes consisted of offences warranting the
capital penalty of death. In his judgment, these were crimes of treason, or crimes
injurious to life or property. Unlike Beccaria, Montesquieu did not oppose the
death penalty, although he recommended drastically restricting its use, as
compared to existing practice, by making it apply only to treason, murder,
attempted murder, and certain large-scale crimes against property where the
offender had no property with which to make restitution.78 Using explicitly
retributive language he opined that: Ά man deserves death {un citoyen mérite
la mort) when he has violated the security so far as to deprive, or to attempt to
depnve another man ol his life. The penalty ot death lor cnmes directly
threatening the security of individuals or the state is 'derived from the nature
of the thing, founded on reason, and drawn from the very sources of good and
evil.' (puisée dans la raison et dans les sources du bien et du mal)'.79
Montesquieu did not restrict himself to retributive justifications of the death
penalty. Using a deterrence rationale, he concluded that this very severe and
final punishment of death is 'very favorable to the liberty of the citizen' since
the deterrence provided by this ultimate punishment is what protects all citizens,
including the murderer himself, from the vengeance of would be attackers.80 In
common with numerous others at the time, he clearly believed that such a
penalty, positioned at the summit of a properly graduated scale of punishments,
pp. 171-96. For extended commentary on the origins and development of the French
prison system, see Andrews, Law, Magistracy, and Crime, pp. 330-74. Andrews sug
gests (ibid., p. 331) the need for research on the land-based prisons called bagnes since
they represented 'the long and creative intermediate stage in the history of modern French
penal incarceration'. It remains true, however, as Andrews himself observes (ibid.,
p. 374) that '[e]ighteenth-century jurists fastidiously insisted that in France prison was
not a penalty in law. They did not define the galleys, bagnes, and hôpitaux as prisons'.
Les prisons referred either to the Bastille and Vincennes for those incarcerated by lettre
de cachet, or to the jails confining defendants prior to trial.
77 Ibid., XXVI, 24.
78 Ibid., XII, 4. Beccaria did not actually rule out the death penalty altogether. He
reserved its use for situations where revolution could not otherwise be averted or where
no other deterrent could 'dissuade others from committing crimes' (Beccaria, On Crimes
and Punishments, trans. Young, p. 48).
80 Ibid., XV, 2.

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has a crucial deterrent function to perform.81 Sharply contrasting laws estab

lishing capital punishment with laws establishing slavery, he approved the
former while rejecting the latter, on the argument that laws instituting slavery
can never be useful to those subjected to them. Laws inflicting capital punish
ment, on the other hand, are designed for the protection of all, and anyone who
shows callous disregard for the safety of others by breaking the pattern of
deterrence aimed at by such laws deserves to be punished by them.82 Fully
convinced that the death penalty is readily justifiable for certain heinous crimes,
Montesquieu confidently concluded his discussion of his four categories of
crime — and the scale of penalties and punishments commensurate with them
— including the death penalty — with the assertion: 'All that I have here advanced,
is founded in nature, and extremely favorable to the liberty of the subject.'83
Clearly Montesquieu found philosophical justification for the use of the death
penalty.84 He asserted, however, that the penalty of death for property crimes
lacked the naturalness of execution for murder, and he consoled himself with
81 'This penalty of death', Montesquieu suggested, 'is like the remedy of a sick
society (la société malade).' (Spirit of Laws, XII, 4.) Where homicide is prevalent, the
ultimate remedy will have to be applied. A particularly forceful statement of this theme
of punishment as crime control is the following assertion from Guillaume Le Trosne,
Vues sur la justice criminelle (2 vols., Paris, 1783), Vol. I, p. 245: 'All passions, in a
thousand different forms, combine against public security; they would burst forth and
make of society a dreadful theater of treachery, horror, and carnage ... if the gleaming
sword . . . was not always raised to threaten, strike, and punish the guilty.' (Quoted in
Andrews, Law, Magistracy, and Crime, p. 302.)
82 Spirit of Laws, XV, 2.
83 Ibid., XII, 4.
84 His analysis did not reflect the fact that in the French lexicon of punishments
established by the Criminal Ordinance of 1670, and supplemented by subsequent royal
edicts, capital punishments included not just execution, but also a life term in the galleys,
interrogative torture and banishment from the realm for life (see Andrews, Law, Magis
tracy, and Crime, p. 310). The appeals record of the Parlement of Bordeaux during the
very years that Montesquieu was associated with that division of the court, La Tournelle,
that handled criminal cases, reveals a clear preference for life or limited terms of galley
service over execution as 'capital' punishments. Recently published research by Rebecca
Kingston indicates that of one hundred and seventeen death sentences appealed from
lower courts to the Parlement of Bordeaux between 1715 and 1724, twenty nine were
commuted into galley service. Rather than simply indicating hostility per se to the death
penalty, this practice appears to have been part of a more general tendency to reduce the
severity of punishments inflicted by lower courts, since where lower courts had punished
with galley service the Parlement of Bordeaux often commuted those sentences to
banishment or whipping. Of the fifty-one appeals of galley sentences between 1715 and
1724, only nineteen sentences remained in force, and of these, four were reduced to
shorter terms of galley service. (Kingston, Montesquieu, pp. 123^1.) For a valuable
explanation of how procedural rules under the Ordinance of 1670 made such reduction
of pénalités at the Parlementary level highly likely, and even predictable, see Andrews,
Law, Magistracy, and Crime, pp. 487-93.

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234 D.W. CARRITHERS
the thought that in societies where proper

we might add, in all previous and known
imagination — the perpetrators of seriou
times be without sufficient resources to m
that capital punishment will at times be all
the same degree of severity as the property
Although Montesquieu was no more read
were Voltaire, Diderot, Rousseau, D'Holb
nents of a new French criminal code of
nonetheless critical of what he regarded as
He praised the early Germanic peoples, wh
European liberty, for generally favouring
poral punishments. These free German war
their blood should be spilled only when t
onlv two canital crimes: thev hune traitors
of murder, he noted, the laws of the Ger
monetary compensation, since they judged a
victim's family than capital punishment.88
Those familiar with Montesquieu's massiv
of some twenty years, are well aware t
sometimes appears to take back in another.
although he must be read as a proponent of
crimes, and although he referred explicit
justification, he also cast aspersions on
schemes, by linking such punishment mode
85 Spirit of Laws, XII, 4. It is intriguing that

imprisonment for life at hard labour rather th
Confinement to the galleys for life for males and
life for females were actually commonly impos
Code of 1670, though in 1748 a royal edict ende
of incarceration for males from ships to land-b
Law, Magistracy, and Crime, pp. 310,330-1 ; Ruff
86 For Voltaire, D'Holbach and Condorcet, s
Post-Revolutionary France (Oxford, 1982),
Observations on the Instruction of the Empress
of the Laws', in Political Writings, ed. John
bridge, 1992), p. 103. For Rousseau, see The So
(Baltimore, 1968), p. 79. For retention of the d
Crime and Punishment, p. 39.
88 Ibid., XXX, 19. Montesquieu notes that
acceptance of such a settlement was itself consi
unwilling either to give or to accept satisfactio
a crime (ibid.).
89 Spirit of Laws, VI, 2, 9.

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use retaliation, he asserted, because they love simple laws. Moderate states use
retaliatory punishments only infrequently, and they nearly always moderate
their use by means of pardons. In the European monarchies of modem times,
Montesquieu cautioned, princes wishing to avoid despotic acts should moderate
the harshest retaliatory penalties, particularly where noblemen, motivated by
honour, have had to do what the laws prohibit.90 He believed that there would
be no lessening of deterrence if mercy is at times shown, since in monarchical
governments the shame of being punished strikes as deeply as more physical
punishments do in despotic states, where individuals have been hardened by
brutal punishments.91 Montesquieu praised the Romans for abandoning the
death penalty, while noting that they loved moderation in penalties, a fact he
attributed to the nurturing impact of their republican constitution prior to the
civil war period. Republics, he observed, not only properly strive for 'gentleness
of penal laws, but also allow the accused to depart to escape punishment'.92
Clearly the primacy of governmental type amidst the factors that influence
the content of legal systems must never be forgotten in the exposition of
Montesquieu's work. His general point was that the civil laws appropriate for
any government will depend on the type of institutions and political laws in
place, which in turn should reflect the principle of government — whether
virtue for republics, honour for monarchies, or fear for despotism.93 At one
point amidst his discussion of the criminal law, he flatly asserted that 'penalties
depend on the nature of the government'.94 Thus the Romans had taken pains,
when they revised the Law of the Twelve Tables following the expulsion of the
decemvirs, to expunge from their criminal law the cruel and barbarous punish
ments that may have been appropriate for the period of kingship but were far
too immoderate for republican Rome.95
The Moderation of Punishment
Montesquieu was clearly in the forefront of the Enlightenment movement to

moderate the severity of punishments. He posited a direct relation between
moderation of punishments and liberty. 'It would be easy to prove', he asserted,
90 Ibid., VI, 21.

91 Ibid. Montesquieu's recommendation of appropriate uses of royal mercy offers an
important contrast to Beccaria's uncompromising point of view. See Beccaria, On
Crimes and Punishments, trans. Young, pp. 80-1. In France, royal pardons were used,
among other things, to avert capital punishment in cases of accidental homicide or self
defence (Ruff, Crime, Justice, and Public Order, pp. 62-3).
93 Ibid., XXIX, 13.
94 Ibid., VI, 15.
95 Ibid. The anti-model in Roman history thus became Sulla, whom Montesquieu
accused of conflating tyranny, anarchy and liberty in propounding the Cornelian laws
(ibid.). Montesquieu was interested in Sulla's role in the destruction of Roman liberty,
and he composed, in fact, a youthful 'Dialogue de Sylla et d'Eucrates' (1724).

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236 D.W. CARRITHERS
'that in all or nearly all the States of

strengthened to the extent that they ha
liberty.'96 No doubt Montesquieu was also
by the inhumanity and barbarism of man
day. In the opening chapter of Book XXIX
he remarked that his whole purpose in wr
prove that 'the spirit of moderation' sho
like the moral good, is always found betw
of the mean alone, quite apart from all t
towards moderation, Montesquieu was
punishments. In reviewing that portion o
allowing a creditor to cut an insolvent deb
crudest laws, therefore, be the best? Sha
relations between things be destroyed?'98
ivWUiV/iii jjuiiiaiiiiiv^uia, i¥iuiiH/i3L|UH/U wao vuuvinvw, in aiuiv/i^auuii wi uv^v
caria who repeated the point, can serve as just as effective d

extremely harsh punishments, since it is much more the certainty
rather than its severity that deters." Even the invention of the
quieu asserted, only repressed the incidence of highway robbery for
time, just as the introduction of the death penalty for desertion fr
military had done little to stop that offence.100 Brutal punishm
quieu believed, debase those subjected to them while having
impact of inducing individuals to commit crimes since they will wis
against the wrathful punisher.101

97 Ibid., XXIX, 1.
98 Ibid., XXIX, 2. Montesquieu did acknowledge, however, that the rep
aspect of the law of the Twelve Tables by Aulus Gellis was in error and that
was actually to dividing the sum gained by the sale of the debtor int
footnote).
99 Ibid., VI, 9, 12.
100 A more effective punishment for desertion, Montesquieu asserted, would have
been to slit the deserter's nose or cut off his ears in order to brand him with infamy for
life (ibid., VI, 12), a suggestion reminding us not to exaggerate the humanitarianism of
such Enlightenment-era reformers of the criminal law as Montesquieu. Certainly this
recommended corporal punishment for desertion is in tension with the rest of his analysis.
It may conceivably reflect the fact that soldiers were often involved in crime, in part
because they were often recruited from the ranks of convicted criminals, such as the
notorious Nanotes. Sentenced to the galleys for life, Nanotes was freed in 1707 to serve
in the army, after which he deserted, was re-sentenced to the galleys, and then yet again
allowed to re-enlist after which he committed the crime of rape (see Kingston, Montes
quieu, p. 115). All penalties of mutilation were removed from French law in the penal
code of 1791.
101 See Pensée 1102 in Œuvres complètes, ed. Caillois, Vol. I, p. 1286.

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The deterrent effects of punishment, Montesquieu was convinced, depend on

the mentalités of those who are subjected to them. Among those peoples not
brutalized by the spectre of cruel and barbarous punishments, such as the rack
or the wheel, the thought of something far less painful, such as even the loss of
status in one's society, or the humiliation of merely being labelled a wrongdoer,
can serve as just as effective a deterrent as the threat of painful injury.102 Among
the early Germans, Montesquieu observed, it was considered such a mark of
shame 'to leave one's buckler behind in combat' that several individuals 'killed
themselves after this misfortune'.103
Montesquieu considered a society's system of punishment nothing less than
an index to the 'character of the human spirit (le caractère de l'esprit hu
main).104 He had nothing but loathing for the cruel Japanese system, which he
judged the height of barbarism. The Japanese had gone down the extreme path
in their system of punishment because they wrongly regarded all crimes as
direct affronts to the emperor. Since the emperor was deemed the proprietor of
all goods, all violations of law were considered a threat to his personal interests.
Hence the Japanese law sought to avenge the emperor, which could only lead
to the same excessive punishments as produced by attempts to use punishment
to vindicate the Deity. Vengeance carried out in the name of either extreme
political or religious authority, Montesquieu sagely concluded, knows no limits.
The Japanese, Montesquieu asserted, had slipped over a moral abyss by
criminalizing actions stemming even from the fundamental human instinct of
self-preservation. Lying to a magistrate, for example, was a capital crime in
Japan. In that country, Montesquieu lamented, despotism had surpassed even
itself in cruelty !105 Risking one's money at the gaming table had also been made
a capital offence. These horrid laws did not produce their desired effect,
however. Such laws had 'more fury than force'. They were so excessive that
102 Spirit of Laws, VI, 12. Montesquieu had long been convinced of this fact. In
Persian Letter 80 he has Usbek remark to Rhedi, Our imagination adapts itself to the
customs of the country in which we live, and eight days in prison or a slight fine impresses
the mind of a European, raised in a mild-mannered country, as much as the loss of an
arm intimidates the Asiatic ... A Frenchman will be overcome with despair at the
disgrace of a punishment that would not disturb a quarter-hour of a Turk's sleep. Fur
thermore, I do not see that the police regulations (la police) or the principles of justice
and equity are any better observed in Turkey, Persia, or in the lands of the Mogul, than
in the republics of Holland and Venice, or even in England. I see no fewer crimes
committed there, no evidence that men, intimidated by the magnitude of punishment, are
more submissive to the laws. On the contrary, I notice a source of injustice and vexation
within these very states.' (Montesquieu, The Persian Letters, trans. Healy, p. 136.)
103 Spirit of Laws, XXVIII, 21.
104 Ibid., XXV, 12.
105 Mark Waddicor has suggested in his Montesquieu and the Philosophy of Natural
Law (p. 138) that in criticizing the Japanese Montesquieu was indirectly criticizing the
French penal code which similarly ignored rehabilitation as a goal of the criminal law.

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238 D.W. CARRITHERS
people shuddered at the thought that t

fect.106 This would always be the case,
ments are not properly scaled to the cri
even public officials will look for ways t
Montesquieu argued this point in vario
example, that at one point in Roman hi
to check intrigues on the argument that
the actual result would be that no one w
moderate penalties, there would be both
Montesquieu also considered excessivel
nature.
Let us follow nature, who has given shame to man for his scourge; and let
the heaviest part of the punishment be the infamy attending it. But if there
be some countries where shame is not a consequence of punishment, this
must be owing to tyranny, which has inflicted the same punishment on
villains and honest men.108
He acknowledged that despotic governments will likely resort to severe pun

ishment since the principle of such governments is fear. 'In moderate govern
ments', however,
the love of one's country, shame and the fear of blame, are restraining
motives, capable of preventing a great multitude of crimes. Here the greatest
punishment of a bad action is conviction. The civil laws have therefore a
softer way of correcting, and do not require so much force and severity.409
Still another rationale for 'the gentle way in punishment'110 particularly appli
cable to republics was the argument that one cannot impose 'great punishments'
(grandes punitions) without inadvertently bestowing on the punishers more
power than is consistent with republicanism. Concentrations of power are
dangerous to republics, and those who seek to avenge the republic, Montesquieu
asserts, may all too frequently end up as tyrants avenging themselves.111
Montesquieu could find no historical evidence that harsh punishments serve
as better deterrents than moderate ones. There had been, he observed, no
increase in crime in Rome as a result of the replacement of the immoderate Law
of the Twelve Tables first by the Valerian law and then by the Porcian law.112
Furthermore, Montesquieu believed that harsh punishments fail to rehabilitate.
Instead, severity often provokes a hostile reaction among the populace that

107 Ibid., VI, 14.
108 Ibid., VI, 12.
109 Ibid., VI, 9.
110
This phrase serves as the title for the second chapter of Michel Foucault's
Discipline and Punish. The Birth of the Prison (New York, 1979), pp. 104—31.
'11 Spirit of Laws, XII, 18.
112 Ibid., VI, 11.

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threatens the stability of the government itself, particularly in despotic states

where all hope of pardon is denied. The goal of vengeful punishments, he noted
in his Pensées, is making offenders wish they hadn't offended. In fact, however,
vengeance can never produce that result. Instead, vengeful punishments make
offenders wish to offend again.113 It is not vengeance but rather pardon that is
most likely to result in repentance. Forgiveness, not wrath, will produce the
proper penitence on the part of the wrongdoer and return errant souls to the
political community. Montesquieu defended the pardoning power in moderate
states, and particularly in monarchies where honour is so prevalent that 'dis
grace is here equivalent to chastisement; and even the formalities of justice are
punishments'. In such states the security of the great (les grands) is part of the
very nature of the government.114
Conclusion
What, then, are we to conclude concerning Montesquieu's philosophy of pun

ishment? First, he did not aim at a fully systematic argument on behalf of one
particular philosophical viewpoint. He was neither a pure utilitarian nor a pure
retributivist, believing that the two viewpoints were by no means mutually
exclusive. Retributivism, however, seems to have been the more central strand
ot his philosophy ot punishment, particularly when it came to justifying the use
of severe punishments for serious crimes. Retribution defined as the doing of
justice served for him as the underlying justification for such punishment,
whereas liberal and utilitarian concerns helped to determine what conduct
should be regarded as punishable and by what means and why punishments
may prove beneficial to society, particularly if arranged in an appropriate scale.
Even though Cesare Beccaria read him as a thorough-going utilitarian, Mon
tesquieu would never have agreed with Jeremy Bentham that the ground of all
moral actions should be utility, defined as 'that principle which approves or
disapproves of every action whatsoever, according to the tendency which it
appears to have to augment or diminish the happiness of the party whose interest
is in question'.115 Montesquieu did not seek to avoid all use of utilitarian
perspectives in defining the proper gradation of punishments within the pun
ishment scale, but utilitarianism cannot be said to have provided his justification
for punishment.
Montesquieu clearly had no hesitation in juxtaposing various philosophical
viewpoints on punishment so that the fullest possible range of considerations
involving punishment could be explored. His retributivist leanings, however,
led him to suggest that individuals must be held accountable for their actions,
not for deterrence purposes, but because justice requires no less. Thus he
113 Pensée 1102, cited in note 101, above.

115
Bentham, Introduction to the Principles of Morals and Legislation (1789; re
printed New York, 1948), Ch. 1, section 2, quoted in Tunick, Punishment, p. 70.

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240 D.W. CARRITHERS
insisted on a close connection between p

punishment implicates not just arbitra
issues of morality transcending time an
been to suggest a universe devoid of
regarded as illegal but never immoral. S
believed in or would have approved. He
ple, anterior to the positive laws men m
handmaiden of justice.
It is only where real harm exists or is
would even countenance punishment. A
ments or views of others cannot be considered crimes and do not warrant
punishment. We see, then, in his classification of types of crime, his desire to
protect freedom from state intervention. If he by no means outlined a zone of
privacy as protective as that later advocated by Mill in On Liberty (1859), he
nonetheless suggested the decriminalization of religious offences such as sor
cery, blasphemy and heresy, while also contending that where actions or
behaviour merely offend moral sensibilities, or disturb the public tranquillity,
without threatening the security of lives of property, only modest penalties are
appropriate. In sum, Montesquieu's eclectic philosophy of punishment appears
inol offpmnf tn pritipi^p oenpotc nf tVip nanal e\mfpm nf liic
own day through the marshalling of diverse arguments whose strict

cal consistency cannot be demonstrated.
The theoretical novelty of Montesquieu's discussion of the punishm
with its division into four types of crime arranged in an ascending h
seriousness with corresponding punishments, lay in his conscious av
the existing division in France between capital, afflictive, defami
defaming punishments prescribed in the Criminal Ordinance of 167
quieu's own scale of punishments was substantially more mod
existing punishment practice in Old Regime France, and purposeful
many of the punishments then in use in France, including whipping
the galleys for life or for a term, and torture — all penalties that
from French law in the revolutionary penal code of 1791. Montes
an original attempt, then, to recast the scale of punishments in use
a much more moderate direction, and it is clear that, in his judgment,
be done without negative consequences for either the retributive or
functions of the criminal law.
David W. Carrithers UNIVERSITY OF TENNESSEE

AT CHATTANOOGA

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MONTESQUIEU'S PHILOSOPHY OF PUNISHMENT

Author(s): David W. Carrithers

Stable URL: https://www.jstor.org/stable/26217503

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University of Tennessee at Chattanooga, Dept. of Political Science, 615 McCallie

HISTORY OF POLITICAL THOUGHT. Vol. XIX. No. 2. Summer 1998

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self-defence, constructing a punishment

The Philosophy of Punishme

Broadly speaking, philosophers of punis

3 The influence of Montesquieu on Beccaria

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to be admitted in as far as it promises to exclude some greater evil'. That greater

Punishment by a court (poena forensis). . . can never be inflicted merely as

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pher seeking to establish, in a philosoph

Social Contract Theory and the R

The most common approach to the justifi

the crime, and carrying a large burning can

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9 For the retributivist connotations of tracing the right to punish to an original

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The Punishment Scale

Montesquieu discussed the proper scale of graduated punishments in two

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makes conscious choices concerning wheth

However eager Beccaria was to interpret him as a utilitarian, it would be a

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utilitarian perspectives to define appropriate procedures, modes and levels of

The Liberal Justification of the Punishment Scale

As central to his outlook as retributivist and utilitarian perspectives on the

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human race than 'the rules' to be employ

30 Spirit of Laws, XII, 4.

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fundamental to all subsequent understandin

the necessity for complex, time-consuming criminal processes protecting

38 Ibid., XII, 7-13.

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though his opposition to them may cer

The Classification of Crimes

Nowhere does Montesquieu's liberal philosophy emerge so clearly as in his

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The lowest category of offences in Montesquieu's punishment scale were

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lematic, since advocacy of theologica

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with burning at the stake.67 As Beccaria

67 J. de Damhoudère, in his Pratique judiciai

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72 Ibid., V, 7; VII, 10.

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corrections), and other like chastisements

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has a crucial deterrent function to perform.81 Sharply contrasting laws estab

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the thought that in societies where proper

85 Spirit of Laws, XII, 4. It is intriguing that