Autor: Manent, Pierre

Buch: An Intellectual History of Liberalism

Titel: An Intellectual History of Liberalism

Stichwort: Montesquieu 3; Freiheit: Neutralisierung d. Macht; F. - Unabhängigkeit - Gesetz als Kompromiss; Gewaltenteilung: Mehrheit - Opposition; Mechanismus der Entscheidungsfindung (Kompromiss als Ziel) - Aristoteles (K. als Mittel)

Kurzinhalt: The free society founded on the separation of powers is a perfected state of nature: the citizens enjoy the advantages of the state of nature (they "act as they please") without suffering from its inconveniences ...

Textausschnitt: 60b Liberty is produced through the neutralization of the political. But it should not be said that this liberty is apolitical; it is a liberty conditioned by the political organization which neutralizes the power of power. Hence, in a free regime, the citizens "assert their independence whenever they please." It would certainly seem that liberty and independence are the same thing. However, in chapter 3 of book 11, entitled "In What Liberty Consists," Montesquieu warns that "political liberty does not consist in an unlimited freedom.... We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the law permits." To understand Montesquieu's thought on this crucial point, we must reconcile two of his apparently contradictory assertions. On the one hand, in a free regime, citizens are independent; on the other, political liberty does not consist in being independent but in being able to do whatever the laws allow. But what if the law forbids everything or almost everything? The solution to the contradiction is found in Montesquieu's conception of the law. In a free regime founded on the separation of powers, laws will necessarily tend to "permit" citizens a great number of things, widening the sphere of their "independence." In this way independence and obedience to the law will be reconciled. (Fs)

60c Each citizen desires that the power he supports grant him through law the maximum number of advantages possible, even at the cost of oppressing other citizens. But this power has to reckon with the other power, which bears the demands of the other party. What then is the law going to be? It is going to be the compromise, explicit or implicit, between the two powers and the two parties. It is going to implement the maximization of advantage for both sides, with each obtaining less than it wanted. This form of liberty, in the sense of independence, facilitates the maximization of advantage for everybody. Take an example unknown to Montesquieu: imagine a society in which a powerful group wants education to be dispensed under the Church's direction, and another group of about equal strength wants it completely removed from the Church's influence. If this society has a representative regime of divided powers, neither of the two groups will be able to impose the law it wants. The only compromise possible will be that each group have the liberty to obtain the type of education it desires: one part of the educational establishment will be dependent on the Church, the other will be completely independent. (Fs)

61a In such a system, the law tends to forbid any individual from imposing his will on another. But by that very fact, it forbids anyone else from imposing his will on him. By preventing the individual from imposing his will on another, it limits his independence; but by guaranteeing him the right to do what he wants, so long as that act does not involve exercising power over another, it protects his independence. The law has power only for preventing the excesses of one citizen's power over another. Thus, "asserting his independence whenever he pleases" and having "the right to do whatever the laws permit" become, in a free regime such as Montesquieu conceived of it, progressively synonymous. (Fs)

61b Citizens who no longer exercise power over each other tend to distance themselves from one another, to live separately. In the same chapter, Montesquieu writes that "men, in this nation, would be more like confederates than fellow citizens." Astonishingly, he compares the relationships between citizens of a free regime with those linking independent and allied political bodies. One cannot suggest more clearly that these citizens live in a kind of state of nature, but one freed from fear. The free society founded on the separation of powers is a perfected state of nature: the citizens enjoy the advantages of the state of nature (they "act as they please") without suffering from its inconveniences (they are freed from war and fear). (Fs)

61c What is important in the doctrine of the separation of powers is less the static definition of particular competences than the dynamic description of the relationship between civil society and two equally but differently representative powers, each acting as intermediary for parties. This interplay between society and divided power will always unfold according to the schema proposed by Montesquieu, even at a time when the separation between the executive and the legislative will no longer be anything but a memory. (Today, for example, confusion between them prevails in the form of "cabinet government," a form in which the head of government— the executive—is at the same time head of the parliamentary majority— the legislative.) The two powers are then no longer the executive and the legislative, but the "majority" and the "opposition." It is not that the opposition constitutionally shares power with the majority; on this point there is a considerable difference between the free regime described by Montesquieu and contemporary democracies. But the very presence of the opposition, and the threat of its winning the next elections, are enough, as a general rule, to persuade the majority party to make moderate use of its power. (Fs)

62a The motivating spirit of Montesquieu's liberal system is to separate the will from what it desires, or to prevent each person from doing what he cannot prevent himself from desiring. The people cannot do what they want, they can only elect representatives in the hope that they will do what the electorate wants; the representatives in turn cannot do what they themselves want, but must be keenly aware of what the executive wants; and the executive cannot do what it wants since it must seriously take into account what the legislature wants. A mechanism of decision making that makes sovereignty useless now replaces the absolute sovereignty of Hobbe's Leviathan and also that of Locke's legislative body. This mechanism is extremely different from deliberation as it was instituted in the Greek republics and described by Aristotle in book 4 of the Politics. Precisely because deliberation is a reasonable activity, the deliberating part of the city-state had to consider the need for compromise and moderation in the decisions it made. The point of compromise was fixed by the deliberation itself, according to its chosen ends, and the circumstances imposed on it. In ceding to the necessity of compromise, deliberation did not cease to be sovereign. The situation is entirely different in Montesquieu's liberal system. Far from being chosen by the sovereignty of deliberation, compromise is itself the sovereign of the decision, since what is decided is the result of the combined desires of the two powers. (Fs) (notabene)

62b We have now seen how, even if opinions differ greatly, it is nevertheless possible to reach an agreement. It is very difficult to reach it positively, very much easier to do it negatively. If we cannot achieve both what I want and what you want, why not try to achieve what neither of us wants? The two powers say to each other: I do not want you to govern, you do not want me to govern. Why not make the citizens independent of both our powers, why not liberate them, and the desired result will be achieved? The representation of society by a divided power results in the citizens being less governed, that is freer in Montesquieu's sense of the word liberty. Freedom is less doing what I want than being able not to do what you want me to do. It is doing what I want so long as I do not constrain you. (Fs)