Translator’s note: French dictionaries have generally distinguished between loi , any command or rule that has the force of established authority behind it, and droit, a normative term meaning “right” or “correct” or “just” which comes to be used as “law” by extension. By adopting Montesquieu’s definition of loi at the outset of this article, Jaucourt gives a specific inflection to the discussion.

Law. Law in general is human reason insofar as it governs all the earth’s peoples, and the political and civil laws of each nation are bound to be only the particular cases to which this human reason is applied. [1]

Law may be defined as a rule prescribed by the sovereign to his subjects, either to impose upon them the obligation to do or not do certain things under the threat of some punishment, or to allow them the liberty to act or not act in other things as they find appropriate, and to assure them the full enjoyment of their right in this regard.

Men, says M. de Montesquieu, are governed by various sorts of laws . [2] They are governed by natural law; by divine law, which is that of religion; by ecclesiastical law (otherwise called canon law ), which is that of the administration of religion; by the law of nations, which can be considered as the civil law of the world in the sense that each people is a citizen of it; by the general political law, whose object is human wisdom, and which has founded all societies; by the particular political law, which concerns each society; by the law of conquest founded on the fact that one people was willing or able or under some necessity to do violence to another; by the civil law of each society, which allows a citizen to defend his goods and his life against every other citizen; finally, by domestic law, which comes from the fact that a society is divided into various families needing private government. Thus, there are different orders of laws, and the sublimity of human reason consists in knowing well which of these orders is most suitable to the things that need to be decreed, and in not bringing confusion into the principles that ought to govern men.

A host of reflections arise on this subject. Let us articulate some of them from the profound writings of those fine talents who have enlightened the world with their works on this important matter.

The binding force that the inferior laws have flows from that of the superior laws. Thus, nothing can be prescribed within families that is contrary to the laws of the state of which they are a part. In each civil state, nothing can be ordained that is contrary to the laws that bind all peoples, such as those that prescribe not taking the property of another, redressing the damage one has done, keeping one’s word, etc., and these laws common to all nations must include nothing that is contrary to the supreme dominion of God over his creatures. Thus, once there are things in the inferior laws that are contrary to the superior laws , they no longer have the force of laws .

A more extensive code of laws is necessary for a people dedicated to commerce than for a people satisfied to cultivate their lands. [3] The latter people needs a greater one than a people who live by their flocks. These last need a greater one than a people who live by hunting. Thus, the laws should be closely related to the way in which the various peoples procure their subsistence.

In despotic governments, the despot is the prince, the state, and the laws . [4] In monarchical governments there is one law . Where it is precise, the judge follows it; where it is not, he seeks its spirit. In republican governments, it is in the nature of the constitution for judges to follow the letter of the law ; there is no citizen against whom one can interpret a law when it is a question of his property, his honor, or his life. In England the jury decides on the fact; the judge pronounces the punishment imposed by law : he needs only his eyes for that.

Those who have in their hands the laws to govern peoples must always allow themselves to be governed by the laws . It is the law and not man that must rule. The law , says Plutarch, is the queen of all mortals and immortals. [5] The edict of 1499 alone, issued by Louis XII, makes his memory dear to all who dispense justice in this kingdom, and to all who love justice. By that memorable edict, he decrees “that the law always be followed, despite the orders contrary to the law that importunity might wrest from the monarch.” [6]

The motive and effect of the laws must be the prosperity of the citizens. This prosperity arises from the integrity of mores, the maintenance of the police, the uniform distribution of justice, the strength and opulence of the state; the laws are the sinews of good administration. When someone asked King Anaxidamus of Lacedaemon [Sparta] who had the authority in Sparta, he answered it was the laws . He could have added: along with the mores that they influence, and from which they derive their force. [7] In fact, the laws and mores of the Spartans, intimately united in the hearts of the citizens, formed so to speak but a single body. But let us not expect to see Sparta reborn in the midst of commerce and the love of profit.

“The great difference Lycurgus introduced between Lacedaemon and other cities,” says Xenophon, “consists in the fact that he has above all made the citizens obey the laws . They run when the magistrate calls them, whereas in Athens, a rich man would despair if it were thought he depended on the magistrate.” [8]

There’s more: the first function of the Lacedaemonian ephors upon taking office was a public proclamation by which they enjoined the citizens not to observe the laws but to love them, so that observing them would not be hard.

Nothing should be dearer to men than laws designed to make them good, wise, and happy. The laws will be precious to the people to the extent that the people regard them as a rampart against despotism, and as the safeguard of a just liberty.

Amongst the laws , there are excellent ones, deficient ones, and useless ones. Every good law should be just, easy to execute, and particularly appropriate to the government and the people who receive it.

Any ambiguous law is unjust, because it strikes without warning. Any law that is not clear, plain, and precise is deficient.

The laws should begin directly with the jussive terms. [9] The preambles that are usually placed there are invariably superfluous, even though they were invented for the justification of the legislator and for the satisfaction of the people. If the law is bad, contrary to the public good, the legislator should certainly refrain from issuing it; if it is necessary, essential, indispensable, he has no need to justify it.

The laws should change, but their style should always be the same—that is, simple, precise, always conveying the antiquity of their origins, like a sacred and unalterable text.

Let the laws always exude candor; made to prevent or punish men’s wickedness, they should have the greatest innocence.

Laws that offended the principles of nature, morality, or religion would inspire horror. In the proscription of the Prince of Orange by Philip II, the latter prince promises to whoever kills him, or to his heirs, twenty thousand gold crowns and noble status—this, on the king’s honor and as a servant of God. Nobility promised for such an action! Such an action decreed in one’s capacity as a servant of God! All this overthrows equally the ideas of honor, morality, and religion. [10]

When one does go so far as to offer reasons for a law , this reason must be (1) worthy of it. A Roman law determines that a blind man cannot plead because he does not see the ornaments of the magistracy. [11] It is pathetic to offer such a bad reason when so many good ones present themselves. (2) The alleged reason must be true. Charles IX was declared of age at the beginning of his 14th year because, said Chancellor de l’Hôpital, the laws regard the year as beginning when it concerns acquiring honors; but is the government of peoples only an honor? (3) In the laws , one must reason from reality to reality and not from reality to image or image to reality. The law of the Lombards, bk. II. tit. XXXVII, prohibits a woman who has taken a nun’s habit from marrying. [12] “For,” says this law , “if a husband who has engaged a woman to him with a ring cannot marry another without committing a crime, then all the more so for the spouse of God or of the Blessed Virgin.”

Finally, once the condition of things has been fixed in a law , one must not add vague expressions to it. In a criminal ordinance of Louis XIV, after an enumeration of royal cases, there is added: “And those the royal judges have judged in all times.” [13] This addition brings back the arbitrariness that the law had just avoided.

The laws do not make the rule of justice. [14] Rules are general, the laws are not; rules guide, laws command; the rule serves as a magnetic compass, the laws as a pair of geometer’s compasses. [15]

Following Solon’s example, one must impose on the people less the best laws in themselves than the best that the people can bear in their situation. [16] Otherwise, it is better to let the disorders exist than to pretend to rectify them by laws that will not be observed. For this is to abase the laws without remedying the problem.

There is nothing so splendid as a state in which there are suitable laws and in which they are observed by reason and by passion, as was done in Rome during the earliest times of the republic. For then, all the strength a faction could have is joined to the wisdom of the government. [17]

It is true that the laws of Rome became powerless to preserve her, but it is a normal thing that good laws , which have made a small republic grow, become a burden to it when it is enlarged, because they were made only to effect its enlargement.

There is a considerable difference between laws that enable a people to make itself master of others, and those that maintain its power once it is acquired. [18]

Laws that cause what is unnecessary to be regarded as necessary are not sensible. And they also have this disadvantage: they cause what is necessary to be considered unnecessary. [19] Thus, the laws should only pronounce on essential things.

If unnecessary laws are not good, useless ones are even less so, because they weaken necessary laws . Those that can be eluded also weaken legislation. A law should have its effect, and departures from it for some private agreement must not be permitted. [20]

Many laws that seem the same are quite different. [21] For example, Greek and Roman laws punished the receiver of stolen goods just as they did the robber; French law does likewise. The former were reasonable, the latter is not. Among the Greeks and Romans, the robber was condemned to a pecuniary punishment, so it was quite necessary to punish the receiver with the same punishment, for a man who contributes in any way whatsoever to damages should remedy them. But in France, since the punishment for robbery is capital, it has not been possible to punish the receiver like the robber without going to extremes. The one who receives stolen goods may in countless circumstances receive them innocently; the one who robs is always guilty. In truth, the receiver prevents conviction for a crime already committed, but the other commits the crime. All is passive in the one; there is action in the other. The robber must overcome more obstacles, and his soul must be hardened against the laws for a longer time.

Since the laws cannot foresee or trace out every case, it is up to reason to compare the omitted facts with the ones specified. When the law is found to be mute, the public good must decide. Custom can do nothing then, because there is a danger that it may be applied badly and that people will want to guide it instead of following it.

But custom bolstered by a chain and succession of examples supplies the defect of the law , takes its place, has the same authority, and becomes a tacit or prescriptive law .

The cases that depart from the common law should be articulated by the law ; [22] this exception is a homage that confirms the law ’s authority. But nothing taints it like the arbitrary and indeterminate extension of one case to another. It is better to wait for a new law for a new case than to transcend the limits of the exception already made.

It is especially in situations of rigor that sobriety is needed in multiplying the cases cited by the law . The kind of mental subtlety that goes around drawing inferences is contrary to the sentiments of humanity and to the perspectives of the legislator.

Laws occasioned by the alteration of things and of time should cease with the reasons that brought them into being, far from being revived by conjectural similarities, because the latter are almost never the same, and every comparison is suspect, dangerous, and capable of leading astray.

New laws are established either to confirm the old ones, to reform them, or to abolish them. All additions merely burden and entangle the body of laws . Following the Athenian example, it would be better to periodically collect the superannuated, contradictory, useless, and abusive laws , in order to purify and shorten the nation’s code.

Thus, when it is said that no one should consider himself more prudent than the law , it is living laws that are meant, not dormant laws .

One must hasten to abrogate laws worn out by time, for fear that contempt for dead laws might redound against living laws , and that this gangrene might overtake the entire body of law [ droit ].

But if it is necessary to change the laws , bring to the task so many solemnities and precautions that the people will naturally conclude that the laws are indeed sacred, since so many formalities are needed to abrogate them. [23]

Do not change customs and manners by the laws ; that would be tyranny. Unnecessary matters are not in the law’s bailiwick; customs and manners must be changed by other customs and manners. [24] If the laws obstructed manners in France, they would perhaps obstruct the virtues. Let this light-minded people do [ laissez faire ] frivolous things seriously and serious things gaily. [25] Nonetheless, the laws can contribute in forming the mores, manners, and character of a nation; England is an example.

Anything that concerns the rules of modesty, shame, or decency can hardly be included in a code of laws . It is easy to regulate by laws what one owes others; it is difficult to include in them all that one owes oneself. [26]

All things being equal, the multiplicity of laws proves the poor constitution of a government. Since they are only made to repress injustice and disorder, there must necessarily be more disorder in a state where there are more laws .

The uncertainty and inefficacy of laws proceeds from their multiplicity, from their defective composition, style, and sanction; from deadlocks among interpreters, [27] contradictory judgments, etc.

The laws are subject to a kind of pillaging at the hands of that long procession of legal scholars who comment on them. The very sight of their compilations is enough to overwhelm the most indefatigable soul. Their glosses and subtleties are the snares of chicanery. All quotations, if they are not from the law , ought to be prohibited at the bar. These quotations are only men shown to other men, but doubtful cases must be judged by reasons, not authorities.

There are retroactive laws that come to the aid of anterior laws , and that extend their effect over cases they had not foreseen. There should very rarely be these dual-purpose laws that concern both the past and the future.

A retroactive law should confirm and not reform that which precedes it; reform always causes disturbances, whereas confirmatory laws solidify order and tranquility.

In a state with no fundamental laws , the succession to dominion cannot be fixed, since the successor is declared by the prince, by his ministers, or by civil war. What evils and disorders result! [28]

The laws have wisely established formalities in the administration of justice, because these formalities are the palladium of liberty. [29] But the number of formalities could be so large that it would violate the purpose of the very laws that had established them. Then there would be no end of confusion. Ownership of property would remain uncertain, and the parties would be ruined by virtue of investigating it. There are countries in Europe in which people are in that situation.

Princes have issued good laws but sometimes so ineptly that they have produced only harmful effects. Louis the Debonair had the bishops rebelling against him because of the rigid laws he prescribed to them, which went beyond the purpose he should have set for himself in the circumstances of the times. [30]

To know and depict the character of nations and of kings, one must illuminate their history by their laws and their laws by their history. [31] The laws of Charlemagne reveal a prince who understands everything by his spirit of foresight, who brings together everything by the force of his genius. By his laws , pretexts to elude duties are eliminated, negligence is corrected, abuses reformed or prevented. A head of household could learn from them how to govern his home. The king ordered that the eggs from the barnyards of his domains and the useless produce from his gardens be sold, and it is known from history that he distributed to his people all the Lombards’ wealth and the immense treasures of those Huns who had ravaged the world. [32]

In every society, it is force or the law that dominates. Sometimes force covers itself in the law , sometimes the law relies upon force. Whence three kinds of injustice: open violence, the violence that walks in the shadow of the law , and the violence born from the rigors of the law .

Legislators’ passions and prejudices sometimes seep into their laws and color them; sometimes they remain there and become part of them.

In a time of decadence, Justinian ventured to reform the jurisprudence of enlightened ages. But it’s in enlightened days that it is fitting to correct the days of darkness.

In spite of myself, I will end all these reflections bearing on the laws in general. But I will speak separately of the fundamental laws , the civil, criminal, divine, human, moral, natural, penal, political, sumptuary laws , etc., and I will try to unfold in a few words their nature, character, spirit, and principles.

1. See Montesquieu, The Spirit of the Laws , 1.3, for this definition.

2. The following discussion can be found in Montesquieu, Spirit of the Laws, 26.1.

3. For this paragraph, see Montesquieu, Spirit of the Laws, 18.8.

4. For this paragraph, see Montesquieu, Spirit of the Laws, 6.3.

5. Jaucourt is quoting a note from Montesquieu, Spirit of the Laws, 1.1, who in turn is quoting Plutarch, “To an Uneducated Ruler,” in Moralia , 780c.

6. Louis XII, king of France (1498–1515); see the edict of December 22, 1499, found in Isambert et al., Recueil général des anciennes lois françaises [General collection of former French laws], 11:406–8.

7. Anaxidamus, Spartan king of the seventh century b.c.e.; see Pausanias, Description of Greece , III.7.6.

8. Xenophon, “The Constitution of the Lacedemonians,” 8.2. Jaucourt is paraphrasing the text.

9. Jussion, that is, in the old regime, a royal command to superior courts to do what they had previously refused to do.

10. The Catholic Philip II of Spain banished the Calvinist Prince of Orange in June of 1580. A year later, the Dutch Estates General passed the Act of Abjuration, which declared their independence from Philip II in a fashion sometimes compared to the American Declaration of Independence.

11. For this paragraph, and the preceding one, see Montesquieu, Spirit of the Laws, 29.16.

12. The references are to Charles IX, king of France (1560–74), and Michel de l’Hôpital (1505–73), chancellor of France.

13. For this paragraph, see Montesquieu, Spirit of the Laws, 29.16.

14. Règle de droit, also translated as “rule of law,” though the phrase can include custom as well as law.

15. The contrast is between boussole and compas, so there is no play on words in French, as has seemed unavoidable in English.

16. The same anecdote, which derives from “Solon,” in Plutarch, Life of Solon , 15.2, appears in Montesquieu , Spirit of the Laws, 19.21.

17. These two sentences are a slight variation on Montesquieu, Considerations on the Causes of the Greatness of the Romans and Their Decline, trans. David Lowenthal (New York: Free Press, 1965; repr. Indianapolis: Hackett, 1999), chap. 4, pp. 45–46. A nineteenth-century translation is available online here.

18. The previous two paragraphs are adapted from Montesquieu, Considerations, chap. 9, p. 94.

19. See Montesquieu, Spirit of the Laws, 24.14.

20. For this paragraph, see Montesquieu, Spirit of the Laws, 29.16.

21. This is the topic of Montesquieu, Spirit of the Laws, 29.12.

22. Here, the constrast is between the droit commun (common law or common right) and the loi; see the translators’ note, above.

23. See Montesquieu, Persian Letters , letter 129.

24. See Montesquieu, Spirit of the Laws, 19.14.

25. Montesquieu, Spirit of the Laws, 19.5.

26. For this paragraph, see Montesquieu, Spirit of the Laws, 7.10.

27. Partage des interprètes, where “partage” is here a term of art meaning a tie vote between judges of a particular court on a particular case ( Dictionnaire de l’Académie Française [Paris, 1694]).

28. For this paragraph, see Montesquieu, Spirit of the Laws, 5.14.

29. See Montesquieu, Spirit of the Laws, 26.15, where the phrase used is “palladium of property.”

30. Louis I the Debonair (778–840) succeeded his father, Charlemagne, on the latter’s death in 814.

31. See Montesquieu, Spirit of the Laws, 31.2, for this formulation.

32. For this paragraph, see Montesquieu, Spirit of the Laws, 31.18.