|Abstract||In the Esprit des Lois (EL) Montesquieu famously proposes a version of the doctrine of the separation of judicial, executive and legislative power as a way of protecting political liberty (“the opinion each has of his security”). Given the context in which he situates his arguments: an immense and theoretically opaque excursus which discusses almost everything known to political theory, anthropology and economics before his time, and essentially descriptive methodology, it is not easy to discern a clear line of argument in support of the doctrine of the separation of powers. In this essay I offer an interpretation which treats it as a constitutional version of the theory of spontaneous social order. Just as, in the later work of Mandeville, Adam Smith or Hayek, social order emerges from the interaction of individuals following the demands of their own natures, political order emerges from the equilibriating interactions of contending political forces, carefully disposed by the constitution. In making this argument Montesquieu treats the emergence of spontaneous constitutional order as essentially a mechanical process, for which the best metaphor is the balance of gravitational forces which holds the planets of the solar system in equilibrium. In thinking of justice this way Montesquieu follows a line of Enlightenment thought which is essentially atheoretical and descriptive rather than abstract and prescriptive (“It is useless to attack politics directly by showing how much it is in conflict with morality and reason. This sort of argument convinces everybody but changes nobody”3). Rather than construct normative arguments about the nature of justice, the rational basis for limitations on arbitrary rule or the proper relations of competing public virtues and private passions, Montesquieu points to England as a place where liberty is protected and simply recommends that the same essential preconditions be established, confident that justice will evolve as the result of a mechanical process. The legislator need not concern himself with the institutional discipline of anti-social passions for the common good, since that is taken care of by the mechanism of the constitution. The textual evidence for this interpretation of Montesquieu is thin..|
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