Abstract

In his portrayal of a non-juridical state of nature, Montesquieu escapes Rousseau’s critique of seventeenth-century natural rights thinkers. While their respective states of nature share the character of being at peace and so not directly prescriptive of political forms, Rousseau criticizes Montesquieu of having established only the science of positive right and not that of political right. By considering their respective states of nature, the paper looks to the ground of this distinction, arguing the two types of science are not distinguished as descriptive from prescriptive, but rather as two forms of legitimation: the one remaining within a reforming relation to the Ancien Regime, the latter pointing to its revolutionary overthrow