Montesquieu and the Roman Law

This project intends to investigate the significance and the meaning of Roman constitutions and the Roman state law in Montesquieu and the founding fathers of the American constitution. The fact that comprehensive studies have been dedicated to Montesquieu by historians, philosophers, sociologists and political scientist, however not by jurists, especially not by experts of Roman law, must at long last lead to an effort of filling this serious gap. In the foreground two man aspects of the roman constitution have to be investigated: 1. The mixed constitution and the separation of powers, 2. The allocation of competences between centre and periphery, that is to say, the problem of centralism and federalism. Montesquieu`s doctrines in the "considérations sur les causes de la grandeur des Romains et de leur decadence", as in his fundamental opus "de l`esprit des lois" are built upon perceptions in many important areas that are based on comprehensive analyses of Roman state law. An appreciation of Montesquieu`s doctrines ultimately is not thinkable without a profound investigation of the Roman understanding of the State, and constitutionally relevant structures. The founding fathers of the American Constitution, the framers, on the one hand had Montesquieu`s writings as a basic foundation of their considerations. On the other hand they engaged exhaustively in history of the Roman state - especially the Republic - and achieved considerable findings to the establishment of the state. Precisely for the framers the problems of separation of powers as well as allocation of competences between centre and periphery were in focus of their considerations: The Roman Constitutions of the Republic and the Principate and Roman state law can be regarded as foundations of modern theory of constitution and modern theory of state (political theory). This project also envisages showing up whether these considerations - and if, to what extent - can be of importance for a future constitution of a whole Europe.

Even if it was always known that Montesquieu was an expert in Roman History, and that he was above all well informed on the rise and fall of the Roman Republic, never before had a Roman lawyer or a legal historian tried to seek the roots of Montesquieus political theories in the Roman political system, as well its constitutional structure. Having studied very thoroughly Polybios, Montesquieus interest should be found in the constitution of the Roman Republican, more than in other fields. Polybios mixed constitution was the answer to anakyklosis as described by Greek philosophers since Aristoteles, as the inevitability of the decline and fall of every political system. But Montesquieu, contrary to Polybios, was aware that the Roman Republic collapsed some years after the theoretical writings of Polybios. So his task was to try to find out the true reasons of this decline, which he saw in militarism, inequality and the lack of constant education based on values. These certainties can be found at the basis of the famous theory on the separation of powers, where presuppositions lay in the Roman Republican constitution, and in the attempt to overcome the cycle. Not the mixed constitution of Polybios, based on monarchial aristocratic and democratic elements, but the division of the executive, the legislative and the judicial power, each so strong as to stop the other in case of abuse, are the guarantee of the survival of the free states, in which the citizens liberty is considered to be the highest good. So the project could show the immense and direct influence of Roman Republican history and the political/ constitutional system of the Roman Republic on Montesquieus thinking.