Indeed, if you read the 1st chapter of the two-part book, about the main idea of this book, you get just such an impression. A free state system, to say Montesquieu, is not at all a guarantee of the existential freedom of a citizen. Every system is free, but there may not be civil freedom in it. The system is not free, but civil freedom does not exist. He explains that in both cases the citizen’s freedom is only factual, but nevertheless he cannot find that in an unfree system legal, individual freedom can exist,
If we make an attempt to explain why this connection, which was pointed out by previous writers, was not clear to Montesquieu, then a basic explanation can easily be found in the author of The Spirit of Laws himself.
In the mentioned first chapter of the twelfth book there is the following reasoning: freedom, in relation to the system, is established only by laws and even fundamental laws; in relation to a citizen, it can appear due to well-known morals, customs, learned examples and with the favorable implementation of certain civil laws, as we will see all this in this book.
What freedom is in relation to the system, Montesquieu explains in the previous book. This is political freedom
1) Book. Chapter 12 USH.
— 334 cical, i.e., the participation of a citizen in state power through his representatives. The book under consideration, “The Spirit of Laws,” is built, by the way, on material borrowed largely by Montesquieu from the English constitution, the subject of which, in the words of the same Montesquieu, is political freedom ‘).
However, everyone knows that the British, even at the time of Montesquieu, possessed individual freedom, in comparison with other peoples of the West. Since the individual freedom of the British was guaranteed not in the written constitution (which in the proper sense of the word is still in English), but was brought up and supported by morals and customs. then she did not need solemn written declarations, the foundations of constitutional laws, which we find in America and France.
On the contrary, the individualism of the British, a distinctive feature of their character, has always proved resistant to the absolute system. On the basis of such resistance, Maspa Opaga and Aoteeshelyo oE Fe Reore and Rei-Job oE 10143 and VSh oEmov arose which can be called the fundamental laws of English *).
On the other hand, we notice an amazing identity between Montesquieu’s definitions of political and civil freedom. We have seen how he defines the latter: “a citizen’s confidence in his safety.” In the 11th book *) he says: “political freedom for a citizen is that peace of mind that is rooted in everyone’s conviction of their own safety.”
In addition to the state life and structure of England, Montesquieu also studied the ancient times of the republic. The free system of these states allowed only that actual freedom about which
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— 385 he speaks in the first chapter of the twelfth book. In relation to individual ancient freedoms, we have already pointed out a similar opinion of Hobbes - his remark that, in essence, it was not the Aenian and the Roman who were free, but their states. In the ancient republics he found political freedom, but individual freedom was actual. In England he found political freedom; individual freedom was rooted here in customs, morals, etc.
These historical observations led Montesquieu to the THOUGHT that civil freedom depended on civil laws, and not on fundamental constitutional ones. But he himself did not consistently pursue this idea, since - we have seen - political freedom (depending on fundamental laws) is almost identical with civil freedom. And for political freedom, that is, confidence in one’s safety, a rule of law is necessary in which a citizen cannot be afraid of another citizen’).
Montesquieu says, among other things, in his chapter on the political structure of England, that by uniting the executive power with the legislative power, the life and s60b0d of the citizens will be left to the power of arbitrariness. If we assume that by freedom, in this case, Montesquieu understands exclusively political freedom, then the word life, placed next to it, leaves no doubt that we are also talking about the inviolability of the person, i.e., one of the individual freedoms.
In the same chapter, Montesquieu says that in the republics of Italy, where the powers are united, there is less freedom, and in our monarchs. At the same time, Montesquieu pointed to the institution of state inquisitors in Venice, whose jurisdiction was to oversee the private and public life of citizens, i.e., again, the sphere of individual freedom.
1) This especially concerns fundamental freedom.
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