Ancien Régime, Absolutism and Natural Law – Part II
di Riccardo Piroddi
Abstract: Montesquieu (1689-1755) è noto per la sua critica ironica al potere monarchico arbitrario e per la sua teoria della separazione dei poteri, ispirata al modello inglese. Nel suo capolavoro Lo spirito delle leggi, sviluppa il concetto di “spirito generale”, che include fattori antropologici, sociali e geografici nel determinare le forme di governo. Montesquieu ridefinisce la legge come espressione delle relazioni necessarie radicate nella natura delle cose, sottolineando l’importanza della libertà politica, della tolleranza e del pluralismo religioso come indicatori di civiltà e stabilità. L’articolo tratta anche lo sviluppo del diritto naturale moderno nel XVII secolo, evidenziando i principi fondamentali (non nuocere, mantenere le promesse, dare a ciascuno il suo, vivere onestamente) che miravano a regolare le relazioni tra individui e stati in un’epoca segnata da guerre religiose e rivalità coloniali. In questo contesto, Ugo Grozio (1583-1645) emerge come padre del diritto internazionale, sostenendo l’esistenza di un ordine naturale razionale e universale, indipendente dalla volontà divina. Nel suo De iure belli ac pacis, afferma che la legge naturale precede lo Stato e ispira il contratto sociale, fornendo una base razionale per giustificare il potere sovrano e l’ordine politico. Le sue idee hanno contribuito a legittimare l’assolutismo e a plasmare i concetti moderni di giustizia, diritti umani e relazioni internazionali.
Charles Louis de Montesquieu
Montesquieu (1689-1755) is well known for his anti-religious attitude and his irony-laden critique of the arbitrary power of the monarchy and its governing institutions offered a profound reflection on the limits of royal authority. Drawing inspiration from his observations in England—where he attended several sessions of the House of Commons—Montesquieu developed a framework for placing checks on the French monarchy. His analysis extended beyond political structure, incorporating broader considerations of factors that shape governance.
A central element of Montesquieu’s philosophy was the concept of the “general spirit,” a theory introduced in his seminal work The Spirit of the Laws. This notion expanded political reflection to include anthropological, social, and geographical influences on governmental systems. By considering the interplay of these elements, Montesquieu brought a fresh perspective to the study of human institutions and governance.
His historical and social reconstruction of human institutions led to a redefinition of law, presenting it as the expression of necessary relationships rooted in the nature of things. This understanding of law was deeply connected to his comparative analysis of political systems. Montesquieu’s classification of government forms rested on a dialectical relationship between “nature” (the geographical and cultural context) and “principle” (the foundational characteristic of each form of government).
Montesquieu’s work thus represents a crucial step in political philosophy, illustrating how laws and governmental systems are shaped by broader contextual factors, and how different forms of government are influenced by both the environment and the guiding principles that underlie them.
Another key concept in Montesquieu’s philosophy is political freedom, along with its essential corollary: the legal and fiscal protection of subjects, a feature he particularly admired in the English system. Montesquieu’s praise of the English constitution was instrumental in his development of the theory of the separation and balancing of powers—legislative, executive, and judicial. He exalted Parliament as a crucial intermediary that not only curbed monarchical power but also safeguarded national freedom and promoted the principle of tolerance.
According to Montesquieu, the sovereign’s responsibility extended to ensuring religious pluralism, a safeguard against the fanaticism that had historically fuelled religious wars. This idea moved beyond the “libertine” view of religion as a purely internal matter, instead proposing that the extent of religious pluralism was directly linked to the level of civilization a nation had achieved. By protecting various religious beliefs, the state could foster a more advanced and peaceful society.
Montesquieu’s emphasis on religious pluralism and tolerance marked a significant departure from traditional views, situating freedom of belief as a cornerstone of both personal liberty and the broader civic order. His vision linked the protection of individual rights to the overall progress and stability of a nation, reinforcing the role of balanced government structures in maintaining both freedom and societal harmony.
Natural Law
The Protestant Reformation, by breaking the spiritual unity of Europe, along with the era of new geographical discoveries, which expanded the world’s borders in unprecedented ways, fundamentally altered the European political landscape. This period saw the eruption of serious conflicts, including religious wars and intense maritime rivalries among emerging colonial powers such as Spain, France, England, and the Netherlands. These powers vied for dominance and defended their newly acquired colonial territories, resulting in heightened hostilities. In this tumultuous context, the primary challenge was to justify and establish rules of international law to regulate increasingly complex relations between states.
One of the intellectual outcomes of the era’s philosophical and scientific renewal was the development of modern natural law in the 17th century. This doctrine consisted of a body of self-evident rules of justice, grounded in universal moral rights and values derived from the rational nature of humanity. Natural law, conforming to human reason and sociability, was thus seen as inherently rational and universally applicable, serving as a benchmark against which all existing legal systems had to be measured.
Thinkers of natural law, operating from the premise that individuals possess inherent, inalienable rights, argued that the transfer of sovereignty to a monarch was not absolute but revocable. The legitimacy of a sovereign’s power was justified by the magnitude of the monarch’s responsibility—to ensure the public good and promote the happiness of the subjects. This interpretation of sovereignty was grounded in the belief that rulers, like the ruled, were bound by moral duties enshrined in natural law.
The core principles of natural law were:
- Neminem laedere (do not harm others, and return any wrongfully taken property or ill-gotten gains),
- Pacta sunt servanda (keep one’s promises),
- Suum cuique tribuere (give to each their due, including reparations for harm caused), and
- Honeste vivere (live honorably).
This legal philosophy gained momentum alongside the broader secularization of politics, which was partly triggered by the Protestant Reformation and formalized in the Peace of Augsburg in 1555. The secularization of law, coinciding with the rise of natural law, underscored the belief that these fundamental rules of conduct predated the state and held greater authority than positive laws, which were merely the formal regulations enacted by the ruling powers and recognized by established authority. Positive law, by contrast, was a body of legal rules created and enforced by those in power, lacking the inherent moral foundation of natural law.
Hugo Grotius
Hugo Grotius (1583–1645), widely regarded as the father of modern natural law and the founder of international law, revolutionized legal thought by asserting the existence of a natural order grounded in human rationality (recta ratio), universally valid across all nations, faiths, and individual beliefs. His approach can be considered secular, as it was fully detached from religious concerns; Grotius argued that natural law does not derive its authority from divine will or God’s order but exists independently of any divine being.
In his seminal work De iure belli ac pacis (On the Law of War and Peace, 1625), Grotius established the foundations of international law and outlined the principles of modern legal rationalism. He maintained that natural law, grounded in human reason and mankind’s intrinsic social instincts, predated the formation of the civil state and political institutions. In other words, the rules that govern human behaviour existed even before the establishment of formalized societal structures.
Grotius posited that because natural law is rooted in rational human nature, it is universal and unchanging. From this foundation, he believed it was possible to derive an infinite number of more specific rules, which could effectively regulate all aspects of societal life. These principles served as the basis for constructing a legal framework to guide both individuals and states.
Furthermore, Grotius envisioned the pre-social state of nature as one characterized by peaceful coexistence, mutual respect for agreements, and communal use of resources. In contrast to later theorists who described the state of nature as one of conflict and disorder, Grotius believed that human beings, driven by reason and social instincts, were capable of living in harmony even in the absence of political authority. His work thus laid the groundwork for modern concepts of justice, human rights, and international relations, which continue to influence legal and political thought today.
Hugo Grotius is recognized as one of the founding fathers of international law, particularly for his ideas advocating peaceful coexistence and the principle of pacta sunt servanda (the obligation to honour agreements). According to Grotius, civil society emerges when the state of nature, although initially peaceful, becomes unsustainable due to the depletion of natural resources, growing individual needs, and increasing selfishness among people. As these pressures mount, the natural harmony breaks down, prompting individuals to seek greater security and stability.
The State, according to Grotius, is established when individuals collectively decide to protect their interests more effectively by delegating authority to a sovereign. This transfer of power occurs through a social contract, in which individuals agree to submit to the authority of the sovereign in exchange for protection and the preservation of their goods. The legitimacy of the State, therefore, is rooted in this social pact, which not only establishes the rights of the individuals involved but also defines and limits the powers of the sovereign.
Grotius’ theories gained favour among supporters of absolutism because they did not challenge the concept of authority; rather, they provided a rational justification for it. His ideas reinforced the principle of sovereign power by framing it as a necessary outcome of the social contract. The transition from the natural state to a civil one, he argued, was facilitated through a mutual agreement, which legitimated the submission of subjects to their ruler.
The concept of the social contract as the foundation of state authority was a central theme in natural law theory, and Grotius’ articulation of this idea provided a powerful argument for the acceptance and justification of sovereign power, especially within the framework of early modern absolutism.
