WDW300 February 2 2012.docx

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19 Apr 2012
Lecture 4 - February 2, 2012
2:42 PM
Montesquieu and Montaigne
Charles de Montesquieu 1689-1755 'Laws should be appropriate for people for whom they are made'
-against Hobbes; law as inherent in everything; there is no complete chaos like Hobbes - all beings have
-M specifies most important laws inherent in society
-the nature of man; state of nature is a time of peace; nations must respect and do good to other
nations in times of peace and the least possible damage in war
-leap from state of nature; biggest Hobbes, Locke, Montesquieu very small leap
Positive law - law established for a particular state ; depend on a particular social and political culture
and vary among states - he asks why does this variety exist
Kinds of Governments
Republic - aristocracy, democracy, monarchy
-all legitimate governments are republics and come in those three forms
-democracy as ancient Greek city-state i.e. Canadian involvement as citizens is voting (plus minus); seen
more in antiquity rather than modern world
-leader must be virtuous, need moderation and honour
-danger of the mob; repression of the people
Famous principle - Separation of powers - dangerous for one area of government to become all power -
must have some constraint, be divided
-moderation as restraint on the exercise of power and the treatment of others e.g. moderation in
-aristocracy turns into form of despotism, oligarchy
-honour in monarchy is respect for the authority of the state and for the people in power
-Honour, law as substitute for virtue in monarchy ch.5/6 p25-26
Moderate vs. despotic governments ch.10
-difference is established set of rules, rather than arbitrary absolute ruler
Despotism - what is its essence? - absence of laws
-potential for despotism in democracy
-the cultural/geographical subtext
-depository laws must be kept in political bodies rather than with monarch
-law as virtuous, provides a check for government and citizens, they do not have to be virtuous because
the laws are
-Asiatic despotism, out of Europe
-despotic governments have fear rather than law; do not need law if there is fear of government; Asiatic
Government and Law
Concept of due process
-jurisprudence; i.e. precedent, power of judges, precedent laws - must be room for judge discretion
-the more a government approaches a republic the more the law becomes fixed - no real laws in
despotic states except the will of the despot
Importance of settled laws - why?
May the prince judge - why not? He judges in a despotic state; disputes will not be fairly solved, division
of powers, must be impartial judge out of rest of process
-essence of law as regularity, certainty
-prince can exercise pardons, but cannot execute judgements
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