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Charles de Secondat, baron de Montesquieu
Charles de Secondat,
Baron de Montesquieu (Photo credit: constitution.org)

The Relativity of Laws: Background

Montaigne –  Pascal – Montesquieu

A few posts ago, I quoted Pascal (19 June 1623 – 19 August 1662) who wrote:

« Vérité en deça des Pyrénées, erreur au-delà. » (Pensées 8, p. 68 FR)
Truth on this side of the Pyrenees, error beyond. (literal translation)

Laws do change from country to country. In the 16th century, Montaigne[1] (28 February 1533 – 13 September 1592) had come to the same conclusion as Pascal, but Montesquieu (18 January 1689 – 10 February 1755) is the political philosopher who best demonstrated that laws depend on a very large number of factors, one of which is climate.

Montesquieu

The Persian Letters
the Spirit of the Laws
Turquerie

Montesquieu is the author of Les Lettres persanes (1721), The Persian Letters, and the Spirit of the Laws (1748). The notion of relativity is central to both Montesquieu’s Lettres persanes, an epistolary novel, and the Spirit of the Laws. In the Persian Letters, Paris and France are seen from the perspective of Usbek and Rica, two noblemen from Persia. The book constitutes a comparative description of two different societies.

The Persian Letters were written when “turquerie” was fashionable, from the late Renaissance, until the early part of the 19th century. It is an oblique text, a form of saying without saying. One cannot punish a foreigner for expressing views about the country he is visiting or his country, if he is elsewhere.

Three Types of Government

Relativity is also central to Montesquieu’s Spirit of the Laws (1748), his masterpiece. Laws depend on a large number of factors, from the country’s type of government, of which he names three: the republican, the monarchical and the despotic (« Il y a trois espèces de gouvernements: le républicain, le monarchique et le despotique. »), to the climate of the country, not a new theory but one usually associated with Montesquieu. (See L’Esprit des lois, II.1 [The Spirit of the Laws, Book 2, Chapter 1].)

Applied to three different types of governments, laws have a different impact, hence their relativity. Montesquieu critiqued laws and governments by applying laws to three types of government.

I should also note that, contrary to Thomas Hobbes, Montesquieu believed human beings were born good, but were later spoiled by society, which vilifies society.  

Advocacy

Constitutional governments
The Separation of Powers

The Spirit of the Laws is descriptive. Montesquieu claimed he was happy living in a monarchy. However, he did advocate constitutional governments. French monarchs were absolute monarchs. He also advocated the separation of powers: the legislative, the executive, and the judicial. De l’Esprit des loix served as a model to American founding fathers.

Slavery condemned
A man is innocent until a jury finds him guilty.

Moreover, although Montesquieu’s Spirit of the Laws is descriptive, he had opinions. For instance, Montesquieu condemned slavery and we owe him the notion that a man is innocent until a jury finds him guilty. Therefore, there is advocacy in De l’Esprit des loix.

L'Esprit des lois

De l’Esprit des loix, 1749 (Photo credit: Wikipedia)

Local vs international laws: a Problem

United States Declaration of Independence (1776)
Déclaration des droits de l’homme et du citoyen (1789)

The relativity of laws is problematical and, therefore, an issue I would like to raise in this post, though not at great length. At the moment, we have local laws as well as an international law, and an international criminal court, at The Hague, Netherlands. Moreover, we have the United NationsUniversal Declaration of Human Rights /la Déclaration universelle des droits de l’homme (UDHR) and other international agencies. Yet, although we have endowed ourselves with international covenants, it remains possible to torture people and detain individuals rather gratuitously.

When Montesquieu wrote his Spirit of the Laws (1748), there were no official and stated “human rights.” But it should be said that, during the 18th century, the age of Enlightenment, various philosophes sought the recognition of individual and collective human rights. Voltaire (21 November 1694 – 30 May 1778) advocated freedom of religion, freedom of expression and the separation of church and state. (See Voltaire, Wikipedia.)

In fact, the 18th century culminated in the United States Declaration of Independence  drafted by Thomas Jefferson (13 April 1743 – 4 July 1826), who owned slaves, and the French Déclaration des droits de l’homme et du citoyen, drafted by the Marquis de Lafayette (6 September 1757 – 20 May 1834), assisted by Thomas Jefferson, and passed by the National Constituent Assembly in August 1789.

Yet, nearly three centuries later, the United Nations’ Universal Declaration of Human Rights /la Déclaration universelle des droits de l’homme (UDHR), adopted on 10 December 1948, seems as utopian as the United States Declaration of Independence.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

President Obama is trying to save the middle class, but resistance is enormous. Equality is difficult to achieve. As for other abuses of human rights, they constitute a common occurrence.

I would like to suggest that, despite the very real possibility of infringements, it would be in humankind’s best interest to implement, within limits, its international covenants and, in particular, its human rights as defined in the United Nations’ Universal Declaration of Human Rights.

Portrait of a Painter, Ottoman Dynasty

Portrait of a Painter,
Ottoman Dynasty (Photo credit: Wikimedia)

Nature vs Culture: the Importance of  “Natural Laws”

Raif Badawi
Muath al-Kasasbeh

Given such violations as the sentence inflicted on Raif Badawi, it would be my opinion that the abolition of torture should be given serious and prompt attention at an international level. It should override local laws. There are areas where there cannot be a double standard. Torture is one such area. Moreover, ISIL must be crushed.

It is “natural,” rather than “cultural,” for a caring wife to do all she can to spare her husband punishment he does not deserve and which constitutes torture, a blatant infringement of the United Nations’ Universal Declaration of Human Rights. It is also “natural,” rather than “cultural,” for Muath-al-Kasasbeh‘s father to grieve the burning alive of a beloved son and to call for revenge.

The entire world is condemning this crime against “humanity.” I have noticed that the media have started describing Mr Badawi as the “father of three.” An innocent “father of three” is a greater victim than an innocent blogger. Raif Badawi should not be tortured and arbitrarily incarcerated. In fact, this is a “natural” rather than “cultural” law.

As King Abdullah II of Jordan stated, the Muslim faith does not condone such cruelty as the burning alive of Muath al-Kasasbeh. Gone are the days, or gone should be the days, we burned at the stake 19-year-old Joan of Arc.

Humankind has long yearned for the best possible government.[2] We have already discussed the theories of such political philosophers as Thomas Hobbes, John Locke and Jean-Jacques Rousseau, all of whom came to the conclusion that the rule of law, just laws, had to prevail.

Conclusion

President Obama is saying that “the fight against violent extremism demands a new approach.” I believe this is what I have been attempting to state in this post.

http://www.usnews.com/opinion/blogs/world-report/2015/02/21/combating-violent-extremism-demands-a-new-approach

It would be my opinion, that a good education would help prevent radicalization. A good education does seem the best tool we have to bring about lasting changes. What have we been teaching our children? They are still joining ISIL as though it were an option. It isn’t. Could it be that we have not been teaching our children to think? If they do not think they may fall prey to indoctrination and terrorize the world.

In short, to what extent should respecting the Universal Declaration of Human Rights  /la Déclaration universelle des droits de l’homme (UDHR) be based on consent and membership? And to what extent should local laws allow serious violations of human rights. Laws vary from country to country, but no local law should allow a serious infringement of international law.

So let me quote President Obama once again: “Violent extremism demands a new approach.”

I experienced difficulties writing this post. Proposing that individual nations  comply with international law is a sensitive matter. Absolute monarchs do as they please and terrorists are not amenable to reason. But when humanity is besieged, one looks for a remedy, a remedy which may consist in respecting human rights which is international law.

My kindest regards to all of you.

RELATED ARTICLES

Sources and Resources

Michel de Montaigne: Essays (complete) EN
Descartes’ Discourse on Method is Gutenberg [EBook #59] EN
Pascal Pensées is Gutenberg [EBook #18269] EN
Montesquieu: The Spirit of the laws (complete, 4 volumes) EN
Montesquieu: The Spirit of the Laws (Internet Archives; Book 1) EN
Persian Letters: Internet Archives (complete) EN
Persian Letters: Wikisource (complete) EN

Michel de Montaigne: Essais FR
René Descartes: Discours de la méthode is Gutenberg [EBook #13846] FR  Montesquieu: De l’Esprit des lois [EBook #27573] FR
Lettres persanes, tome 1 is Gutenberg [EBook #30268] FR
Lettres persanes, tome 2 is Gutenberg [EBook #33896] FR
Pascal: Pensées, Internet Archive FR

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[1] See Essays, Book 1, last two chapters.

[2] Since Plato’s Republic, if not earlier.

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© Micheline Walker
22 February 2015
updated on 23 February 2015
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