McInerney_Althusser_Montesquieu_Robertson

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MONARCHY, DESPOTISM, AND ALTHUSSER'S 'LINGUISTIC TRICK':

WILLIAM ROBERTSON AND THE LITERARY REPRODUCTION OF

MONTESQUIEU'S CONCEPT OF 'FUNDAMENTAL LAW'

David McInerney

David McInerney is a Lecturer in the School of Communication, International Studies

and Languages at the University of South Australia. He edited the special journal

issueAlthusser and Us (borderlands e-journal, Vol. 4, No. 2, 2005) and is currently

co-editing a series of volumes of the collected works of the Marxist philosopher Wal

Suchting (Brill, forthcoming) in addition to a number of other projects, including an

extended study of the literary reproduction of the concept of despotism in Anglophone

political thought from John Locke to James Mill.

THIS IS A PROOF ONLY. PLEASE DO NOT CITE WITHOUT PERMISSION. THE TEXT SHOULD BE THE SAME AS

THE PUBLISHED VERSION, IN LAURENT DE SUTTER (ED.), ALTHUSSER AND LAW (ROUTLEDGE, 2013).


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True moderation is neither the strict separation ofpowers (pouvoirs) nor a

juridical concern and respect for legality. [I]t is all very well to say that

despotism is the regime in which a single person governs alone, without rules

or laws, or that the despot appears in every prince or minister who goes

beyond the law and abuses his power. At bottom, this is not what is at issue,

for we are familiar with regimes in which despotism reigns even under the

appearance of laws, and, says, Montesquieu, that is the worst of tyrannies.

Moderation is something quite different: it is not mere respect for legality, it is

the balance of powers, i.e. the division of the pouvoirs among the puissances,

and the limitation or moderation of the pretensions of onepuissance by the

pouvoir of the others. The famous separation of powers is thus no more than

the calculated division ofpouvoir between determinatepuissances: the king,

the nobility and the 'people'.

(Althusser 1972: 91)

For Marxists attempting to develop an Althusserian approach to constitutional law

and the state Althusser's first book Montesquieu:la politique et l'histoire (1959)

would appear to be one natural point of departure, given the undeniable historical and

theoretical importance of Montesquieu'sL'esprit des lois since its publication in 1748.

In 1959 Althusser's book represented a major intervention within the literature on

Montesquieu, and retained this significance within that literature even when his

reading of Marx fell out of favor during the 1980s. One effect of Althusser's

intervention has been, however, to downplay the significance of Montesquieu's theses

on the laws or, at least, those on real laws and statutes and to depictL'esprit des


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lois as a work within the theory of government rather than one within constitutional

law. Three theses, important in themselves, have combined to produce this effect.

The first is Althusser's emphasis on the nature-principle unity within each form of

government, which leads him understand the corruption of each of Montesquieu's

three forms in terms of a contradiction within such unities in which the principle

remains determinant in the last instance (Althusser 1972: 4653). The second is that

the 'theoretical model' of a rigorous 'separation of powers' that late nineteenth century

jurists discovered in Chapter VIII ofL'esprit des lois is in fact "purely imaginary",

and "quite simply does not exist in Montesquieu" (Althusser 1971: 8890). The third

thesis, which is a critique of Montesquieu rather than his interpreters, is that this

juridical interpretation finds its textual basis within a certain "ambiguity [in

Montesquieu's] conception of law" that arises out of an occasional conflation of "the

object of scientific observation" ("the laws ordained by men") with "the results of the

investigation itself" ("the laws really ordering the actions of men") that, combined

with his "juridical mode of reflection" (Althusser 1972: 3437), enables Montesquieu

to present a "political problem of the relations of forces" as an abstract "juridical

problem concerning the definition of legality and its spheres" (Althusser 1972: 91).

Considered separately each of these theses is valid and important, but when combined

with Althusser's tenuous interpretation of Chapter IV of Book II ofL'esprit des lois

namely his claim that Montesquieu deploys a 'linguistic trick' in order to represent the

very existence of the nobility and the clergy as if it were in itselfa fundamental law of

the monarchical form of government, via an ambiguity in Montesquieu's use of 'law'

the result is a simple reversal of the strategy that Althusser attributes to Montesquieu,

pushing 'real laws' aside to focus on relations between social forces (puissances) in


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abstraction from the political and legal structures to which they are immanent (see

Althusser 1972: 6768). While this enables Althusser to displace the 'Republican

Marxist' theses of Georges Lefebvre et. al. on relations between the nobility and

bourgeoisie in eighteenth-century France (Althusser 1972: 97102; Comninel 1989:

1218), it does so at the expense of a materialist account of the relation between each

'form of government' and its 'fundamental laws' within Montesquieu's theory.1

This essay attempts to open a space for an Althusserian materialist analysis of this

concept of 'fundamental law' via a detour through the literary reproduction (Macherey

1998: 4251) of Montesquieu's work in the histories of the Scottish Enlightenment,

focusing on the writings of William Robertson on despotism and monarchy in three

non-European societies: Turkey, Peru, and India. In doing so it highlights three

distinctions in Robertson's work that are crucial for grasping the importance of the

concept of 'fundamental law' to the Montesquieuan problematic: first, that between

the nature of a form of government and thefundamental laws that establish and

perpetuate that government; second, that between accidental and constitutional

constraints on the exercise of power, especially with regard to the role of religion;

and, third, the distinction between the establishment of 'social ranks' and the

establishment of 'intermediate social bodies'.

ALTHUSSER'S "LINGUISTIC TRICK"

Macherey has identified the ways in which, in the guise of explaining the

literary work, critics have reduced it to an intention external to it, an origin


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to which it would be restored. These, however, are not the only ways in which

criticism denies the objective existence of the literary text. Even as it

renounces the search for its real existence outside of it, criticism may reduce

the work to an internal principle, whether a structure or meaning, hidden

within it. Interpretation seeks that meaning that proves inaccessible on first

reading, a meaning that can be recovered by great care. Interpretation

depends on the notion that the literary work possesses an exterior and an

interior, a surface and depth. The act of interpretation reduces the work to

its meaning. It demonstrates that the apparent diversity of the work is in fact

an expression of the meaning that underlies it.

(Montag 2003: 5859)

Althusser has posited a whole or structure that leads a latent existence

beneath or behind the manifest content, the truth of which it is the task of

interpretation to decipher.

(Montag 1998: 71)

Warren Montag has suggested that two incompatible practices of reading and

conceptions of structure co-exist within Althusser's early works, one of which

Althusser later pushed aside by deleting a series of passages from and adding a new

foreword to the second edition ofReading Capital. Montag demonstrates that this

interpretive practice of reading, which carefully 'reads between the lines' and/or posits

an underlying and unifying 'meaning' beneath the apparent disorder of the text's

surface, appears in the first edition ofReading Capital in its supposition a structure or

combinatory that functions as a latent interiority.


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Montag's account of Pierre Macherey's intervention against this tendency in Althusser

and Althusser's acceptance of that critique and subsequent self-criticism raises the

question of how we are to read his writings prior to that self-criticism, especially

those of the late 1950s, when Althusser had already adopted certain theses that were

to reappear in his subsequent work but had not yet engaged seriously with the works

of Spinoza, which appear to have been crucial for the development of his method.

Here we might follow the example of Althusser's reading of Marx, drawing lines of

demarcation within Althusser's work between theses consistent with his materialism

and other theses that arise out of such idealist practices of interpretation; one clear

example of the latter being the following passage from Althusser's reading ofL'esprit

des lois, where Allthusser reads 'between the lines' of Montesquieu's text to discover a

'linguistic trick' that cannot be clearly discerned within the letter of the text itself:

Read carefully Book II Chapter 4. You will find that the first sentence

identifies the nature of monarchical government, government 'by fundamental

laws', and the 'intermediate, subordinate, and dependent powers'. Thus

'intermediary bodies' are to be laws!


When we turn to Montesquieu's own text and read its first sentence to the letter we

find that the support for Althusser's thesis is slender at best: "The intermediate,

subordinate, and dependent powers constitute the nature of monarchical government;

I mean of that in which a single person governs by fundamental laws" (Montesquieu

1949: 15). Even if this sentence implies that despotism does not have 'fundamental


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laws' it does not in itselfsupport Althusser's conclusion that Montesquieu equates

'intermediary bodies' with 'fundamental laws'; while Montesquieu does state that the

monarchical form of government is established by fundamental laws, and that those

lawspresuppose the powers that enact them this does not in itself imply that we can

simply reduce those fundamental laws to those powers (puissances). Althusser goes

on from here to note, correctly, that the law of royal succession and the establishment

of a 'depository of the laws' independent of the king are not only fundamental laws but

also real laws (Althusser 1972: 6667); however, it is unclear here exactly why the

legal exclusion of the monarch from exercising judicial power can be reduced to the

puissance of the great (as the social body constituted as the 'depository of the laws')

while the law of royal succession is not similarly reducible to thepuissance of the

king, or how, indeed, Althusser can claim this paragraph is 'worth its weight in gold':

'These fundamental laws necessarily suppose the intermediate channels

through which the power flows' These 'channels' are precisely the nobility

and the clergy. But by a linguistic trick we are again facing a purely legal

problem. The 'necessarily' ('these laws necessarily appear . . .') is thus really

worth its weight in gold. For until now the necessity for the nobility and the

clergy has not been at all obvious!


This thesis of a 'linguistic trick' facilitates a shift from the legal field to the social

field, or, alternatively,from real laws to the spirit of the laws via the word 'law':


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The fundamental law is the fixity and constancy of a regime. All right. We are

in the legal field. But it is also the existence of privileged orders. Now we are

in the social field. It follows from this reasoning that these orders are identical

with the fixity and constancy. Hence we can conclude that in essentials,

these fixed and established laws are no more than the fixity of the

establishment of the nobility and the clergy.


However, it is precisely this shift from the legal field to the social field that Althusser

claims presents what is 'social' as 'legal', and thus enables "the juridical argument [to

return] to the fore" throughpresenting social bodies as laws (Althusser 1972: 68).

This argument supports Althusser's claim that Montesquieu's despotic form represents

a regime without laws, a limit-form with neither legal-political nor social structures.2

However, while this figure of the despot as a ruler without laws can certainly be found

in various places within Montesquieu's work it is contradicted in others, and as the

reading of Robertson's below demonstrates this usage of 'despotism' as a 'regime

without laws' was not predominant within eighteenth century historiography, where

despotism generally appears as a simple legal-political structure, the fundamental laws

of which establish the absolute rather than moderated power of the prince.

ROBERTSON ON THE FUNDAMENTAL LAWS OF DESPOTISM IN TURKEY

AND PERU


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The maxims of Turkish policy do not authorize any of those institutions,

which, in other countries, limit the exercise, or moderate the rigour of

monarchical power: they admit neither of any great court with constitutional

and permanent jurisdiction to interpose, both in enacting laws, and in

superintending the execution of them; nor of a body of hereditary nobles,

whose sense of their own preeminence, whose consciousness of what is due to

their rank and character, whose jealousy of their privileges circumscribe the

authority of the prince, and serve not only as a barrier against the excesses of

his caprice, but stand as an intermediate order between him and the people.

(Robertson 1792a: 224)

This passage comes from The History of the Reign of Emperor Charles V(1769),

where William Robertson contrasts the 'Asiatic despotism' of the Ottoman Sultans

with the "monarchical and republican forms of government" found in the European

states that he discusses in the preceding pages of that work (Robertson 1792a: 224).

The Montesquieuian character of Robertson's work is clearly evident here, and

especially given its subject matter of Turkish despotism the casual reader might

reasonably assume that this passage has in fact been taken fromL'esprit des lois itself.

Indeed, passages such as this one led Nicholas Phillipson to declare Robertson "one of

the most Montesquieuian of the Scottish historians" (Phillipson: 61), and one can find

therein each of the core aspects of Montesquieu's account of the differences between

monarchy and despotism. Furthermore, given the sales of Robertson's Charles V(in

both English and French) one can assume that Robertson's account of the Turks had

considerable influence on the literary reproduction ofL'esprit des lois during the late

eighteenth century.3 One significant aspect of that reproduction is the emphasis on


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the distinction betweenfundamental and occasionallaws within Robertson's account

of the despotic form of government, with its crucial defining characteristic being the

absence of a social division ofpouvoirs (and the constitution of 'intermediate orders'),

rather than an absence of laws and forms of social subordination (or 'social ranks').

This aspect of Robertson's use of Montesquieu is evident when we consider how he

defended his use of the concept of despotism against Sir James Porter in the 'Notes

and Demonstrations' that close the first volume ofCharles V. Porter argued against

Robertson in the introduction to the second edition of his Observations on the

Religion, Law, Government, and Manners of the Turks (Porter 1771) that the Ulema

whom in Montesquieu's terms constitute part of the 'clergy' moderate the power of

the Sultans in exercising the judicial power of government (Porter 1771: xixxx);

Robertson responded to this critique is the 1787 edition ofCharles Vby arguing that

whatever authority the Ulema might have derives not from a fundamental law giving

them a share in powers of government but rather from their role as ministers of

religion, and thus (in accordance with Montesquieu) represents an accidental rather

than a constitutional constraint, and that it is therefore the case that the form of

government under the Ottomans remains despotic (Robertson 1792a: 470472).

To better understand Robertson's rejoinder to Porter's argument we can draw on

Althusser's discussion of the distinctions betweenfundamental and occasional laws

and accidental and constitutional constraints within Montesquieu's theory. Althusser

notes that Montesquieu divides real laws into 'fundamental' and 'occasional' laws:

fundamental laws being those laws that are "constitutive of the regime" and which

determine the form of government, while occasional laws "are decreed in response to


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events" (Althusser 1972: 62). Laws of the first category of laws are logically if not

historically anterior to any given regime, while those of the second depend on them.

The exercise of power depends upon the establishment of fundamental laws, even if

those laws establish an unmoderated, despotic form of government; thus when we

turn to consider Montesquieu's account of despotism we find that even it has a

fundamental law, namely the delegation of undivided absolute authority:

A man whom his senses continually inform that he himself is everything and

that his subjects are nothing, is naturally lazy, voluptuous, and ignorant. It

is, therefore, more natural for him to resign [the management of public affairs]

to a vizier, and to invest him with the same power as himself. The creation of

a vizier is a fundamental law of [despotic] government.

(Montesquieu 1949: 18)

This structure of delegation is replicated at each subordinate level, with authority

being distributed via a pyramidal structure of organization in which each subordinate

retains the same unlimited power over all below him that his superior holds over

himself, down to the lowliest subject, whom, as a father and head of household,

retains absolute power within his realm (Montesquieu 1949: 3233). While this law

establishes the distribution of power and the mode in which it is exercised it does not

entail a social division of power at all, in that none of these subordinate offices

represents the establishmentof 'intermediate orders' in Montesquieu's sense, as the

retention of any power delegated to a subordinate remains contingent on the whim of

that superior: any office can be lost at any time and there is no secure inheritance or

transfer of status and goods.4 The issue here is not the absence of laws but rather that


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this fundamental law establishes the absolute and undivided social character of the

exercise of power rather than the monarchical moderation of the power of the prince

throughthe combination, fusion and liaison of socialpuissances (Althusser 1972: 90).

Robertson discusses the nature of the government of the Ottoman Sultans in exactly

these terms in Charles V, emphasizing the absence of 'intermediate orders' and its

dependence on maintaining compliance and servility through theprinciple of fear.5

This distinction between despotism and monarchy in terms not of the presence or

absence of laws but rather the presence or absence of a constitutional division of the

pouvoirs between established socialpuissances allows Robertson to provide an

effective rejoinder to Porter's critique, which uses the presence of a 'fixed' body of

laws (based in the Koran) and, crucially, a hereditary order of legal interpreters (the

Muftis) to claim that the Turkish government is monarchical rather than despotic

(Porter 1771: xxxxxxiii). Here Robertson demarcates between 'constitutional' and

'accidental' restraints on sovereign power, a distinction that he takes directly from

L'esprit des lois, where Montesquieu claims that religion represents a substantial

restraint upon the conduct of the Sultans with regard to practices proclaimed in the

Koran to be sinful (haram), and suggested there that while the subjects of the Sultan

"will abandon, nay they will slay a parent, if the prince so commands he cannot

oblige them to drink wine" (Montesquieu 1949: 28). Here Robertson claims that the

absence of 'constitutional restraints' on sovereign power entails that the limits on

Ottoman despotism are 'accidental' only, being limited to the capacity of the 'ministers

of religion' and the military to withdraw or supply their ideological and repressive

support (Robertson 1792a: 231). This restraint on government is 'accidental' in that it

acts upon the government not from inside, via the regular functioning of its 'channels'


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of power, but rather from the outside, through their influence on popular violence

and/or submission. This leads Robertson to suggest in a critique of Porter that

echoes the critique that James Mill would make of Robertson'sHistorical Disquisition

three decades later in The History of British India (1817)6 that such accidental limits

on the conduct of the Sultans derive ultimately from the dread of insurrection:

There is not in Turkey any constitutional restraint upon the will of the

sovereign, of any barrier to circumscribe the exercise of his power, but the two

which I have mentioned: one afforded by religion, the principle upon which

the authority of the Sultan is founded; the other by the army, the instrument

which he must employ to maintain his power. The author [i.e., Porter]

represents the Ulema, or body of the law, as an intermediate order between the

monarch and the people. But whatever restraint the authority of the Ulema

may impose upon the sovereign, is derived from religion. TheMoulahs, out of

whom the Mufti and other chief orders must be chosen, are ecclesiastics. It is

as interpreters of the Koran or Divine Will that they are objects of veneration.

The check, then, which they give to the exercise of arbitrary power cannot

be very considerable. The Mufti, who is the head of the order, as well as every

inferior officer of law, is named by the Sultan, and is removable at his

pleasure. The strange means employed by the Ulema in 1746, to obtain the

dismission of a minister whom they hated, is a manifest proof that they

possess but little constitutional authority which can serve as a restraint upon

the will of the sovereign. If the author's [i.e., Porter's] idea be just, it is

astonishing that the body of the law should have no method of remonstrating

against the errors of the administration, but by setting fire to the capital.


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(Robertson 1792a: 471472)

In this passage Robertson emphasizes that the Sultan retains the judicialpouvoir, in

that the Mullahs are all 'named by the Sultan, and removable at his pleasure'; in other

words, the only fundamental law at work here is the contingent delegation of absolute

power to a 'subordinate officer', in this case an officer of the law. Furthermore, as

Althusser notes in his reading of Montesquieu, the judicialpouvoir does not really

constitute a power to be balanced against others (Althusser 1972: 90; Montesquieu

1949: 156159); rather its importance consists on the fact that the constitutional

exclusion of the prince from exercising that power necessarily forces the power of the

prince to flow through the 'proper channels' (Althusser 1972: 69). Thus while there

are 'social ranks' in Robertson's Turkey there are no 'intermediate social bodies' no

puissance of 'the great' that would constitute its form of government as monarchical.

This does not mean, however, that the Sultans of Turkey are necessarily tyrants: while

relations between social forces under despotism are immediate and unmoderated

Robertson suggests that this form of government is only rarely tyrannical, at least with

respect to the common people; indeed, as Althusser notes inMontesquieu, while fear

remains theprinciple inherent to the retention of despotic power vis--vis those

subordinates to whom the prince's power is delegated the common people, on the

other hand, "know a kind of peace" (Althusser 1972: 84). Indeed, Robertson suggests

that a certain peace is essential to the reproduction of despotism, and that, therefore,

pace Porter, the absence of tyranny is not evidence of the absence ofdespotism.7


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Robertson develops Montesquieu's account of despotism further in this direction in

the account of Peru in his next work, The History of America (1777), in which he

claims that social tranquility, despotic power, and a complete and regular social

system of subordination combine in what represents "the most absolute of all

despotisms" through the specific constitutional role of the Peruvian religion

(Robertson 1792b: 210212):

The most singular and striking circumstance in the Peruvian government, is

the influence of religion upon its genius and laws. [T]he whole system of

civil policy was founded on religion. The Inca appeared not only as a

legislator, but as the messenger of Heaven. His precepts were received not

merely as the injunctions of a superior, but as the mandates of a Deity. His

race was held to be sacred; and in order to preserve it distinct, without being

polluted by any mixture of less noble blood, the sons of Manco Capac married

their own sisters, and no person was ever admitted to the throne who could not

claim it by such a pure descent. To these Children of the Sun the people

looked up with the reverence due to beings of a superior order. They were

deemed to be under the immediate protection of the deity from whom they

issued, and by him every order of the reigning Inca was supposed to be

dictated. Whenever the decrees of a prince are considered as the commands

of the Divinity, it is not only an act of rebellion, but of impiety, to dispute or

oppose his will. Obedience becomes a duty of religion; as it would be profane

to control a monarch who is believed to be under the guidance of Heaven, and

presumptuous to advise him, nothing remains but to submit with implicit

respect.


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(Robertson 1792b: 204205)

While Robertson claims that the Islamic religion constitutes an accidental constraint

on Turkish despotism it is clear that he understands the religion of Peru to constitute

thefundamental law that founds the absolute power of the Incas. Thus Robertson

argues that while a regular gradation of social ranks was established in Peru the divine

authority of the Inca did not allow for the powers of government to be divided and

shared with other social ranks such that those powers could counter that power, and

that thus the relations of even the most noble ranks of Peruvian society to the Incas

remained one of abject servility (Robertson 1792b: 205). Under such a constitution

private, inheritable property cannot exist, and all lands remained vested in the person

of the Inca. Thus although a third of all arable land was divided each year according

to "the rank, the number, and the exigencies of each family" it was granted anew each

year, with another third being set aside for the temples of the Sun, with the remaining

third being set aside for the uses of government (Robertson 1792b: 21011). This

division of lands, combined with the lack of other large cities, meant the division of

labor was limited, with only those "artists employed in works of mere curiosity or

ornament" being separated from the remainder of the population within the division of

labor, with the those "arts which were of daily and indispensible utility [being]

exercised by every Peruvian indiscriminately" (Robertson 1792b: 224).

For Robertson each of these facts flows directly from the 'Divinity' of the Incas.

Religion could not limit the power of the Inca, given that the Inca's authority is

established as 'supernatural' in character. Thus the effects of the state religion of Peru

were very different from the effects of Islam vis--vis Turkish despotism, in that it


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was not an accidental restraint from the outside but rather constitutive of the most

perfect form of despotism (one without a single instance of tyranny or rebellion).8

Thus, to sum up, we find in Robertson's accounts of Turkey and Peru two very

different historical examples of despotism that are established by fundamental laws;

both of these books by Robertson reproduce import aspects of Montesquieu's work

but also place a much stronger emphasis on the effects of religion on government.

The singularity of these two instances of despotism in relation to their state religions

appears in a clearer light when we consider Robertson's account of the ancient

constitution of India inAn Historical Disquisition Concerning the Knowledge Which

the Ancients Had of India (1791).

ROBERTSON ON THE FUNDAMENTAL LAW OF 'CASTE' IN INDIA

Though monarchical government was established in all the countries of India

to which the knowledge of the ancients extended, the sovereigns were far from

possessing uncontrolled or despotic power. No trace, indeed, is discovered

there, of any assembly, or public body, the members of which, either in their

own right, or as representatives of their fellow-citizens, could interpose in

enacting laws, or in superintending the execution of them. Institutions

destined to assert and guard the rights belonging to men in social state, how

familiar soever the idea may be to the people of Europe, never formed a part

of the political constitution in any great Asiatic kingdom. It was to different

principles that the natives of India were indebted for restrictions which limited


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the exercise of regal power. The rank of individuals was unalterably fixed,

and the privileges of the different casts were deemed inviolable.

(Robertson 1794: 238239)

One of the most interesting developments of Montesquieu's theory in the work of

Robertson is his defense of the Indian institution of 'caste' as the fundamental law of

an ancient Indian variation of the monarchical form. Robertson claims that this

institution not only established the privileges of the various ranks, but also established

the division of labour9 and most crucially fixed both the station of every family

within those orders and that division of labour in perpetuity, thus preventing any

individual leaving their caste for another and in the process allocating specific

pouvoirs to certain 'social bodies' orpuissances:

The whole body of the people was divided into four orders or casts. [No

individual] can ever quit his own cast, or be admitted to another. The station

of every individual is unalterably fixed; his destiny is irrevocable; and the

walk of life is marked out, from which he must never deviate. This line of

separation is established not only by civil authority, but confirmed and

sanctioned by religion, and each order or cast is said to have proceeded from

the Divinity in such a different manner, that to confound them would be

deemed an act of most daring impiety.

(Robertson 1794: 231232)

In terms of Montesquieu's theory of moderation as a 'balance of powers' the most

important aspect of caste is its constitutional division of thepouvoirs of government


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between the Raja (and his Kshatriyacaste) and the Brahmin (or 'priestly') caste as aresult of the relations between their specified professions and the doctrine of spiritual

pollution, such that while the executivepouvoir is allocated to the Raja and can only

be delegated to subordinate members of his own caste the judicialpouvoir must be

allocated to the Brahmins, whom not only retain ritual superiority vis--vis the Raja

but also retain a strict monopoly of direct knowledge of the sacred texts (Robertson

1794: 330), including those containing the laws.

Indeed, the role of the Brahmin caste is crucial, as it not only constitutes a 'depository

of the laws' but also forces the power of the sovereign to flow through established

channels, and thus the prince is not only profane in stark contrast to Peru but also

unable engage with the Divine Will except via the sacred intermediaries of the order

of Brahmins, which in no sense resembles the servile 'nobility' of Peru:

The members of the first [cast], deemed the most sacred, were the priests,

the instructors, and philosophers of the nation. The monarchs of India

behold among their subjects an order of men far superior to themselves in

dignity, and so conscious of their own pre-eminence, both in rank and in

sanctity, that they would deem it degradation and pollution, if they were to eat

of the same food with their sovereign. Their persons are sacred, and even for

the most heinous crimes, they cannot be capitally punished; their blood must

never be shed. To men in this exalted station monarchs must look up with

respect, and reverence them as the ministers of religion, and the teachers of

wisdom. On important occasions, it is the duty of sovereigns to consult them,


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and to be directed by their advice. Their admonitions, and even their censures,

must be received with submissive respect.

(Robertson 1794: 231240)

Compare this with Robertson's account of Peru, where "all crimes" even those

committed by the most 'noble' ranks of Peruvian society "were punished capitally

as insults offered to the Deity" (Robertson 1792b: 206), whereas the 'person' of a

Brahman remains 'sacred' and 'their blood must never be shed', 'even for the most

heinous crimes.' Here we can see how this fundamental law of 'caste' (and the

strictures against 'spiritual pollution' that it entails) constitutes (in Robertson's

account) not only the monarchical nature of the Indian government but also its

principle, in that it certainly represents a 'sense of their own pre-eminence' and a

'consciousness of what is due to their rank and character', together with a definite

'jealousy of their privileges' in other words, all of the features of Montesquieu's

monarchical principle of 'honour'. Furthermore, this law not only establishes the

sacred authority of the Brahmins and a division of thepouvoirs between that caste and

the Raja but also establishes and reproduces the remainder of the Raja's caste as an

'intermediate social body' orpuissance with a share in thepouvoirs of government:

The members of the second order were entrusted with the government and

defence of the state. In peace they were its rulers and magistrates, in war they

were the generals who commanded its armies and the soldiers who fought its

battles. While the sacred rights of the Brahmins opposed a barrier against

the encroachments of regal power on the one hand, [that power] was

circumscribed on the other by the ideas which those who occupied the highest


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stations in society entertained of their own dignity and privileges. As none but

the members of the cast next in rank to that which religion has rendered

sacred, could be employed in any function of the state, the sovereigns of the

extensive kingdoms anciently established in India, found it necessary to

entrust them with the superintendence of the cities and provinces too remote to

be under their own immediate inspection. In those stations they often acquired

such wealth and influence, that offices conferred during pleasure, continued

hereditarily in their families, and they came gradually to form an intermediate

order between the sovereign and his subjects; and, by the vigilant jealousy

with which they maintained their own dignity and privileges, they constrained

their rulers to respect them, and to govern with moderation and equity.

(Robertson 1794: 232241)

The remainder of Robertson's appendix to hisHistorical Disquisition can be read as

supporting this thesis. His claims of the 'high civilization' of ancient India contrast

with his altogether more circumspect and mixed assessments of Mexico and Peru in

The History of America, and while this might be read in part as an argument in favor

of religious toleration it is more the case that these are the effects one would expect to

find in a moderate monarchy with what he assumed to be based on the volume of

the 'India trade' in both ancient and modern times a wealthy mercantile economy.10

Despite recent claims that Robertson abandoned the concept of despotism in this last

work the dependence of this positive view of ancient India largely depends upon a

contrast with the rule of India's 'despotic' Muslim conquerors,11 as is evident in those


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passages where Robertson claims that the fundamental law of caste despite finding

its origin in an 'arbitrary arrangement' 'fixes' the 'genius' and 'character' of the

Hindus of India in such a manner that not even the "ferocious violence and

fanaticism" of the Muslim invaders renders them mutable: "What is now in India

always was there, and is likely still to continue: neither the ferocious violence and

fanaticism of its Mahomedan conquerors, nor the power of its European masters, have

effected any considerable alteration" (Robertson 1794: 235). This thesis fits well with

that which was soon to predominate within Orientalist scholarship, and which can be

seen in embryo in theHistorical Disquisition: the hypothesis of a 'degradation' of the

Hindus under the effects of Muslim rule.12 Robertson's deployment of this thesis is not

simply an anachronistic anomaly within an otherwise 'liberal' text; rather Robertson's

claims of the effects of 'illiberal' Islamic despotism and, indeed, his conventional

claim that the 'liberal' emperor Akbar represents the exception that proves the rule

(Robertson 1794: 249250) reveal not only the persistence of the concept of

despotism within his work but also that his understanding of the monarchical form of

government remained dependent upon the figure of despotism as its definitive Other.13

THE STATE MACHINE AND THE IDEOLOGY OF LAW

[T]he state is a machine for producing legal power because even when

the state is despotic, and 'dictatorial' to boot, it always has an interest,

practically speaking, in basing itself on laws; if necessary, laws of exception,

even, if necessary, in order then to violate or arbitrarily 'suspend' them. As


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we all know, to our consternation, the most tyrannical and fanatical, the most

horrible states gave themselves laws, endowed their regimes of terror and

extermination with laws: Hitler promulgated laws concerning the Jews and the

extermination of Jews. We also know that no state on earth is more

punctilious about its own laws than the USSR, where there rages a form of

repression that is legally selective and thus protected, since it is required by

law. The state, in this respect, is a machine for producing legal power.

(Althusser 2006: 106107)

The figure of Montesquieu rarely appears in Althusser's work after 1960, and even in

his Soutenance d'Amiens part of which was supposedly dedicated to a defense of his

first book he barely mentions Montesquieu at all, and focuses instead on his broader

intervention within the history of eighteenth century political thought, of which

Montesquieu formed a portion, devoting considerable space within that defense to the

works of Rousseau and, especially, Machiavelli (Althusser 1990: 205209).14 Despite

this G.M. Goshgarian has drawn our attention to the continuities between

Montesquieu and Althusser's (post1965) self-criticism, especially in relation to his

critiques of Stalinism, Kruschevism, and Eurocommunism. This is clearest in a

section of Goshgarian's introduction to the Philosophy of the Encounter, where he

illuminates a striking continuity in the use of one particular metaphor inMontesquieu

and the (previously unpublished manuscript) 'Marx in his limits', written almost two

decades later. This metaphor, included in the passage above, is that of the state as a

machine that runs only on a certain fuel, and thereby transforms one form of energy

(heat) into another (motion).15 This continuity, however, conceals an important

divergence: inMontesquieu Althusser uses this metaphor in relation to the


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determination in the last instance of the principle in Montesquieu's three forms of

government, with theprinciple being represented as "the intersection of the nature of

the government with the real life of men" (Althusser 1972: 46), grasped in terms of

their manners and morals (which, in terms of Althusser's subsequent work, we might

understand as 'ideology'),16 while in 'Marx in his limits' this metaphor is used to

elucidate the transformation of the violence of the class struggle intopower in the

form of law, through the 'rule of law' and the 'neutrality of the state' (Althusser 2006:

108110).17

The thesis presented in this essay of the centrality to the Montesquieuian problematic

of the establishment of some real law whether that law be 'religious' or 'secular' in

origin as afundamental law might open another path betweenMontesquieu and

Althusser's late work, in this case via the concept of 'reproduction' from his essay

'Ideology and the Ideological State Apparatuses' (and the manuscript from which that

was extracted, published as Sur Reproduction) and the concept of 'to take hold' or 'gel'

(prendre) from his late work on Machiavelli and the manuscript 'The Underground

Current of the Materialism of the Encounter' (Suchting 2004: 15). We might argue,

following these late works, that the establishment of a fundamental law is thinkable

only from "the point of view of reproduction" (Althusser 1971: 131), in the 'taking

hold' of a heterogeneous ensemble of elements including not only manners and morals

but also various pre-existing legal forms, which might have been 'occasional' or even

'fundamental' laws in a previous life. Such an assemblage would only take hold if,

among other conditions, such laws can provide the conditions of existence of the

nature-principle unity of a possible form of government. While this essay has focused

on the non-European examples within the works of Montesquieu and Robertson this


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would also be the case for Montesquieu's model for the 'monarchy of the future' (the

English constitution), in which we can detect the combination of at least two different

bodies of law: first, as Bernard Edelman notes in his reading of the Grundrisse, the

'reprise' of Roman property law, which it has combined with the bourgeois subject-

form; and, second, the 'rediscovery' of the 'Gothic constitution', which Montesquieu

claimed the English found, as Althusser notes, "'in the woods' of their past" (Edelman

1979: 103104; Althusser 1972: 94).18 Robertson's cases of Peru and India not only

illustrate how Montesquieu's concepts were modified in the course of debates on non-

European regimes but also represent just two examples of aleatory assemblages of

singular elements that took hold and lasted a long time, even if not forever.


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ENDNOTES

1 One could claim here that, as Althusser claimed with regard to Marx's errors in his

account of Feuerbach, Althusser "needed this mistake" (Althusser 2006: 65) in order

to complete this intervention against juridical interpretation of Montesquieu.

2 "The first feature of despotism is the fact that it is a political regime which has so to

speak no structure. Neither legal-political nor social. Montesquieu repeats several

times that despotism has no laws, and by that we should understand first of all no

fundamental laws." Althusser 1972: 76.

3 The first quarto edition sold nearly 3,000 copies in the first four months after its

publication, even at the expensive price of 2 12s 6d. According to Richard Sher,

more than 3,500 quarto and 5,000 octavo sets had been sold by the British publishers

by 1785, not including other editions published in Ireland and Pennsylvania, and the

French translation that first appeared in 1771. Sher 1992: 164195.4 "In a despotism nothing distinguishes between men: it is the realm ofextreme

equality which lowers all subjects to the same uniformity It is the suppression of

orders by a general leveling down. No hereditary order, no nobility: this sanguinary

regime cannot tolerate greatness in blood. Nor greatness in goods: the tyrant cannot

suffer the continuity of 'families' that time enriches and the succession and effort of

generations elevate in human society. Better, he cannot tolerate any of the greatnesses

of establishment that he himself confers on certain of his subjects. For ultimately a

vizir, governors, bashaws and cadis are needed! But this greatness is only occasional,

taken back the moment it is conceded, almost evanescent. It is nothing the moment it

has arrived. Every clerk may thus hold all the power of the despot, but his life is a


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postponed disgrace or assassination: that is all his freedom, that is all his security!"

Althusser 1972: 7778.

5

"Under the Turkish government, the political condition of every subject is equal. To

be employed in the service of the Sultan, is the only circumstance that confers

distinction. Even this distinction is rather official than personal, and so closely

annexed to the station in which any individual serves, that it is scarcely communicated

to the persons of those who are placed in them. The highest dignity in the empire

does not give any rank or pre-eminence to the family of him who enjoys it. As every

man, before he is raised to any station of authority, must go through the preparatory

discipline of a long and servile obedience, the moment he is deprived of power, he

and his posterity return to the same condition with other subjects, and sink back into

obscurity. It is the distinguishing and odious characteristic of Eastern despotism, that

it annihilates all other ranks of men, in order to exalt the monarch; that it leaves

nothing to the former, while it gives everything to the latter; that it endeavours to fix

in the minds of those who are subject to it, the idea of no relation between men but

that of a master and of a slave, the former destined to command and to punish, the

latter formed to tremble and to obey." Robertson 1792a: 224225.

6 "Insurrection is a principle of salutary operation, under the governments of the East.

To that is owing almost every thing which the people are left any where to enjoy.

In a situation where there is no regular institution to limit the power of gratifying the

will, the caprices, and the desires of the sovereign and his instruments, at the expense

of the people, there is nothing which hinders the people from being made as

completely wretched as the unbounded gratification, at their expense, of the will,

caprices, and desires of those who have sovereign power over them can render human

beings, except the dread of insurrection." Mill 1817: 630631.


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7 "[W]hen the form of government in any country is represented to be despotic, this

does not suppose that the power of the monarch is continually exerted in acts of

violence, injustice, and cruelty. Under governments of every species, unless some

frantic tyrant happens to hold the scepter, the ordinary administration must be

conformable to the principles of justice, and if not active in promoting the welfare of

the people, cannot certainly have their destruction for its object." Robertson 1792a:

470.

8 "The dominion of the Incas, though the most absolute of all despotisms, was

mitigated by its alliance with religion. The mind was not humbled and depressed by

the idea of a forced subjection to the will of a superior; obedience, paid to one who

was believed to be clothed with divine authority, was willingly yielded, and implied

no degradation. The sovereign, conscious that the submissive reverence of his people

flowed from their belief in his heavenly descent, was continually reminded of a

distinction which prompted him to imitate that beneficent power which he was

supposed to represent. In consequence of those impressions, there hardly occurs in

the traditional history of Peru, any instance of rebellion against the reigning prince,

and among twelve successive monarchs, there was not one tyrant." Robertson 1792a:

208209.

9

"[T]he members of each cast adhere invariably to the profession of their forefathers.

From generation to generation, the same families have followed, and will always

continue to follow, one uniform line of life." Robertson 1794: 232233.

10 Nicholas Phillipson and Karen O'Brien both emphasize this theme of 'religious

toleration'. Phillipson 1992: 7273; O'Brien 1992: 91. For the passages in the

Historical Disquisition discussing the trade in 'Indian manufactures' as evidence of

'civilization' and 'moderation' see Robertson 1794: 236238.


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11 J.G.A. Pocock claims that in theHistorical Disquisition Robertson abandoned the

concept of despotism altogether (Pocock 2005: 202), while Geoffrey Carnall is more

circumspect in his suggestion that Robertson's attitude toward Muslim rulers was

more positive than that of his contemporaries, claiming only that Robertson

"emphasised the ability, ambition, [and] even the enlightenment of the Turkish

monarchs ... Selim and Solyman the Magnificent", while "Robertson's supreme

example of the enlightened ruler was Muslim, although an exceptional one." Carnall

1992: 225.

12 For an example see Robertson claim (in his account of the philosophy and sciences

of India) that the Brahmins "have been so studiously depressed by [the] fanatical

zeal [of the Mahomedan conquerors of India] that the modern members of that

order are as far inferior to their ancestors in science as in power" and that this caste

"derive[s] the most liberal sentiments which they entertain at present [from the

writings of their ancient Pundits], and [thus] the wisdom for which they are now

celebrated has been transmitted to them from ages very remote" (Robertson 1794:

321). This thesis of the degeneration of Indian institutions and culture under the

influence of Muslim despotism was one that was already gaining currency in 1790,

and was soon elaborated by Sir Henry Thomas Colebrooke in a thesis of a 'Golden

Age of Hinduism' that owed much to Edward Gibbon's narrative ofThe Decline and

Fall of the Roman Empire. See Kopf 1969: 40.

13 References to Muslim despotism and its effects abound within Robertson's

appendix, even if these claims are more often than not couched in terms of the

'illiberal', 'intolerant', and 'zealous' character of Islam. For examples see Robertson

1794: 235, 243, 249, 262, 315, 321, 333334, 416, 423425.


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14 Montesquieu is mentioned again (almost in passing) inMachiavelli and Us

(Althusser 1999: 1416). This relative absence of Montesquieu from the work of

Althusser after 1959 places the claims of Mariana Valverde regarding the absence of

Montesquieu from the work of Michel Foucault in a somewhat different light. See

Valverde 2008: 145146.

15 "If theprinciple of the government is its spring, that which makes it act, that is

because it is, as the life of the government, quite simply its condition of existence.

The republic will only 'go', to coin a phrase, on virtue, just as some motors will only

go on petrol. Without virtue the republic will fall, as will monarchy without honour,

despotism without fear." Althusser 1972: 46. "The state is a machine in the full,

precise sense of that term, as established in the nineteenth century after the discovery

of the steam engine, the electro-magnetic machine, and so on: that is to say, in the

sense of a man-made device [dispositif] comprising a motor driven by the energy 1,

plus a transmission system, the purpose of the whole being to transform a specific

kind of energy (A) into another specific kind of energy (B)." Althusser 2006: 105.

On the relations between these passages see Goshgarian 2006: xxxiixxxiv.

16 Althusser claims (in his 'Letter on Art in Reply to Andr Daspre' of August 1966)

that "ideology is identical with the 'lived' experience of human existence itself"

(Althusser 1971: 204); from this we might assume that the 'principle' of a form of

government represents the imaginary relation of subjects to their political conditions

of existence as such, and thus constitutes a specific ideological form.

17 See also the following passage, where Althusser notes that the state appears in

liberal ideology as "a Neutral Institution that stands 'above the classes' [and] limits

their struggle and their excesses in such a way as to guarantee that the 'public interest',

or the 'general' or 'public' interest, will prevail." Althusser 2006: 119. As Goshgarian


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notes, this seems to largely repeat the criticism contained in the following similar

sentence fromMontesquieu: "The mythical notion of the nature of the State is to

imagine that a political power can be established and exercised outside classes and

over them, even in the general interests of society." Althusser 1972: 102; Goshgarian

2003: xxi.

18 Montesquieu, in contrast with Althusser, posits this as the location of an absolute

origin: "This beautiful system was invented first in the woods." Montesquieu 1949:

161.

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__ (1990) Philosophy and the Spontaneous Philosophy of the Scientists and Other

Essays, London: Verso.

__ (1999)Machiavelli and Us, London: Verso.

__ (2006) Philosophy of the Encounter: Later Writings, 19781987, London: Verso.

Carnall, G. (1992) "Robertson and Contemporary Images of India," in S.J. Brown

(ed.), William Robertson and the Expansion of Empire, Cambridge: Cambridge

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Comninel, G.C. (1989)Rethinking the French Revolution: Marxism and the

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Edelman, B. (1979) Ownership of the Image: Elements for a Marxist Theory of Law,

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Goshgarian, G.M. (2003) 'Introduction', in L. Althusser, The Humanist Controversy

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__ (2006) 'Translator's Introduction', in L. Althusser, Philosophy of the Encounter:

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Kopf, D. (1969)British Orientalism and the Bengal Renaissance: The Dynamics of

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Macherey, P. (1998)In a Materialist Way: Selected Essays, London: Verso.

Mill, J. (1817) The History of British India, London: Baldwin, Craddock, and Joy.

Montag, W. (1998) "Althusser's Nominalism: Structure and Singularity (19626),"

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Montag, W. (2003)Louis Althusser, Houndsmills: Palgrave Macmillan.

Montesquieu, C-L. (1949) The Spirit of the Laws, New York: Hafner.

O'Brien, K. (1992) "Robertson's Place in the Development of Eighteenth-Century

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Phillipson, N. (1992) "Providence and Progress: An Introduction to the Historical

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Pocock, J.G.A. (2005)Barbarism and Religion: Barbarians, Savages, and Empires,


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Robertson, W. (1792a) The Reign of Emperor Charles V, 7th edn, London: Strahan,

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Robertson, W. (1792b) The History of America, 6th edn, London: Strahan, Cadell, and

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Robertson, W. (1794)An Historical Disquisition Concerning the Knowledge Which

the Ancients Had of India, 2nd edn, London: Strahan, Cadell, and Balfour.

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Suchting, W. (2004) "Althussers Late Thinking About Materialism,"Historical

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