The following excerpt is adapted from Chantal Delsol's excellent book, Unjust Justice.
In The Spirit of the Laws (1748), Montesquieu effected a revolution, one that called into question the character of Christian missionary activity and the legitimacy of Western colonization. He took it upon himself to understand the different laws of different peoples in their own contexts. He described and explained them in their own existential milieu, instead of judging them in the name of a dogma or teaching that transcended all of them.
To be sure, human laws are inspired by morality, they “legislate concerning the good.” However, the vision of good and evil varies—considerably so—according to each people. The resulting moral differences are founded upon liberty. It is in freedom that each people designates the good, which is to say that a variety of factors enter into account: its way of life, its religion and culture, its mores and manners (the two are not the same), its climate, etc.
All human laws are therefore inscribed within a given context, and they should correspond to a distinctive interpretation of the world in general and of morality in particular. “They must be so fitted and appropriate to the people for whom they are made that it is a great matter of luck if those of one people can suit another.”
Is Montesquieu’s argument relativistic? One might think so, reading certain passages he penned on despotism. In them he lets it be understood that, as Aristotle said before him, natural servitude can be good for certain peoples. Elsewhere he writes: “Do not compare the morality of the Chinese with that of Europe.” However, that Montesquieu is not a relativist, even if Christian authorities of the period were quick to say so because he rejected the dogmatic point of view that consecrated a single vision of the good as true for all peoples. In fact, Montesquieu hewed to a narrow and complex path between relativism and dogmatism. He does not fail to identify universal laws applicable to all human beings—no one is more keen than he on the unity of the human race—nor does he fail to connect law and morality.
But these two convictions prompt him to abandon the regnant dogmatism. And in point of fact these two convictions correspond to the two historical foundations of tolerance.
The first conviction consists in regarding the search for the good as a probabilistic activity, one that is always tied to a specific situation. In this sense, morality as a practical activity connects with the Aristotelian notion of prudence. The definition of the good is always uncertain because it has to be articulated by human beings with less-than-perfect minds who are immersed in particular situations from which they cannot attain total critical distance. Without existing in some particular situation they don’t have a world at all. Therefore, it is very difficult to judge a law or custom in absolute terms.
For example, with respect to polygamy: “It is clear that there are countries in which there are many more women than men. Therefore polygamy, which is bad in itself, is much less so in them than in other countries.” This uncertainty in the definition of the good corresponds to the modern foundation of tolerance, found for example in John Locke’s Letter on Toleration.
Here it is the uncertain character, the weakness of human judgment, the diversity of human demands, which call dogmatism into question.
The second conviction concerns the dignity of peoples and hence the respect due to their customs and cultures understood as expressions of their particular ways of life. Montesquieu insists a thousand times that “peoples are very attached to their customs.” To want to change from the outside the laws of a people because of the barbaric character of those laws is to make them one’s slave.
Moreover, since one likes to establish elsewhere what one finds established at home, [this nation] will give the peoples of its colonies its own form of government . . . ; although it gives them its own laws, it maintains them in great dependence; in such a way that its citizens will be free there, but the state itself enslaved. A conquered state might have a good civil government; but it would be oppressed by the law of nations: the laws of one nation will be imposed upon the other in such a way that whatever prosperity it achieves will be very precarious, and really only held for the use of the master.
In other words, maintaining the autonomy of a people is worth more than getting rid of its imperfections. It is very possible that we could bring better laws to certain peoples than they currently possess. But in doing this we would annihilate that people along with its laws. That is why Montesquieu was so exercised that an Indian king was judged by the laws of another people and not his own. This argument concerning the dignity of peoples—despite the fact that some of their laws appear to us to be unworthy of humanity—corresponds to the classical Christian foundation of tolerance found, for example, in Saint Augustine. In this argument it is respect for the other that demands that dogmatism be eschewed.
Westerners today ought to meditate upon Montesquieu’s admirable reflections whenever they decide to launch a war of humanitarian intervention. These reflections especially call into question the institutionalization and systematization at work in contemporary demands for international justice.
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