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Property and Privacy of Conscience in Montesquieu's Spirit of the Laws

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Property and Privacy of Conscience in Montesquieu's Spirit of the Laws PROPERTY AND PRIVACY OF CONSCIENCE IN MONTESQUIEU’S SPIRIT OF THE LAWS John Matthew Peterson, Ph.D. University of Dallas, 2018 Director: Joshua Parens Montesquieu’s Spirit of the Laws is a sprawling work with six untitled and seemingly unconnected parts. How are these parts related, and how, especially, does the sixth part, on the history of Roman, French, and Feudal laws, relate to the other parts? In particular, why does Montesquieu pay special attention to the evolving understanding of property in these different legal environments, and what might his treatment of this subject have to do with his more well-known treatments of liberty, commerce, and religion? This dissertation offers answers to these questions through a close reading of the text of Spirit of the Laws, paying particular attention to Montesquieu’s use of the figure of the barbarian in parts 6, 2, and 3, and connecting these passages to books 11–12, on political liberty, and portions of book 26 on political and civil law. It connects Montesquieu’s arguments in support of political liberty—in which he implicitly makes common cause with thinkers like Hobbes and Locke—with the more determinist, historicist, and even sociological portions of his work, which have inspired a different strand of political philosophy. Finally, it gives an account of how parts 4 and 5, on commerce and religion, are based upon the first half of the book. This investigation yields the following conclusions: Montesquieu reinterprets the history of law in Europe in order to separate out the barbarian spirit from its Christian and Roman admixtures and translate it into the modern context. He takes from the barbarian the grounding of property rights in the individual conscience in order to make psychological security central to the social contract. His teachings on commerce and religion are, in his order of presentation, manifestations of the barbarian use of property as a sacred and inviolable space of security for the individual. Religious liberty and commercial republicanism are, for Montesquieu, adaptations of the barbarian spirit to the Christian world, meant not to usurp religious authority or undermine virtue, but to make concessions to human weakness. This teaching, however, effectively transforms religion into privacy of conscience, and makes property into the palladium that protects that most sacred of possessions. THE BRANIFF GRADUATE SCHOOL OF THE UNIVERSITY OF DALLAS PROPERTY AND PRIVACY OF CONSCIENCE IN MONTESQUIEU’S SPIRIT OF THE LAWS BY JOHN MATTHEW PETERSON B.A., ST. JOHN’S COLLEGE, ANNAPOLIS, 2005 M.A., UNIVERSITY OF DALLAS, 2012 A dissertation submitted to the Graduate Faculty of the University of Dallas in partial fulfillment of requirements for the degree of Doctor of Philosophy in Politics in the Institute of Philosophic Studies. OCTOBER 11, 2018 Approved by the Examining Committee: ___________________________________________ Joshua Parens ___________________________________________ David Upham ___________________________________________ Stuart Warner John Matthew Peterson Property and Privacy of Conscience in Montesquieu’s Spirit of the Laws © 2018 Au petit agneau Il faut connoître les choses anciennes, non pas pour changer les nouvelles, mais afin de bien user des nouvelles. Charles-Louis de Secondat CONTENTS Contents ............................................................................................................................ vii Acknowledgements ............................................................................................................. ix Introduction ..........................................................................................................................x Chapter 1: The Importance of Part 6 .................................................................................1 The Importance of Part 6 to Spirit of the Laws as a Whole ............................................. 1 From Part 6 to Part 1 .................................................................................................. 5 Ovid Epigraphs ......................................................................................................... 10 Montesquieu’s Purpose .............................................................................................. 15 Spirits of the Law ...................................................................................................... 17 The Roman Spirit ...................................................................................................... 19 Plato’s Laws ............................................................................................................... 22 Book 27: Revolutions in Roman Law ........................................................................ 30 Book 28: Revolutions in French Civil Law ................................................................ 39 Note on Books 30–31 ............................................................................................... 43 The Salic Law ............................................................................................................ 47 Chapter 2: Separation of Powers .....................................................................................50 From Part 1 to Part 2 ................................................................................................ 50 Book 9: Property, Liberty, and Security ..................................................................... 54 Book 10: Commentary on Machiavelli ....................................................................... 57 Background of Book 11............................................................................................. 67 Despotism ................................................................................................................. 69 Separation of Powers ................................................................................................. 76 Found in the Forests ................................................................................................. 80 Book 11: The Importance of Judgment ..................................................................... 81 Conclusion ................................................................................................................ 91 Chapter 3: Punishment and Property ..............................................................................95 Introduction .............................................................................................................. 95 Political Liberty vs. Civil Liberty ................................................................................ 97 Political Right vs. Civil Right ................................................................................... 100 From Part 2 to Part 3 .............................................................................................. 108 Book 12: Crime and Punishment ............................................................................. 116 Part 3: Barbarian Mores ........................................................................................... 130 Book 18: The Salic Enclosure .................................................................................. 136 30.19–20: The Fredum & the Justice of the Lords ................................................... 143 Chapter 4: Conscience as Property ...............................................................................148 Introduction: From Part 3 to Parts 4 & 5 ................................................................ 148 Book 19: The General Spirit of Europe ................................................................... 151 Religion on the English Model ................................................................................ 163 Parts 4 and 5: Religion, Commerce, and Liberty ...................................................... 167 Books 24–25: Religion and Commerce on the Barbarian Model .............................. 172 Book 25: The Portable Refuge ................................................................................. 176 Book 26: Sacred Site ................................................................................................ 181 Conclusion ......................................................................................................................186 Property and the Privacy of Conscience .................................................................. 186 Despotism, Then and Now ..................................................................................... 190 History and Prejudice .............................................................................................. 199 Bibliography ......................................................................................................................207 ACKNOWLEDGEMENTS This dissertation emerged out of a paper for Joshua Parens’ “Philosophy of Law” course, on Plato’s Laws and Montesquieu’s Spirit of the Laws. He encouraged me to develop it further, and has been a ready guide and reader of my work. Much that is worthwhile in this project is due to his advice and influence. I am to blame for the mistakes. I am also grateful to my other readers, David Upham and Stuart Warner, for their comments and suggestions. The Earhart Foundation’s funding of my graduate work made this dissertation possible. I also thank Founders Classical Academy of Leander for so arranging things that I could spend my mornings teaching philosophy and my afternoons
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