Montaigne and Pascal on the Foundation of Law

Primary version of this post at Barry Stocker’s Weblog, with visual content!

I’m more familiar with Blaise Pascal than with Michel de Montaigne, but I am doing some work on Montaigne at present. I’ve noticed something that I had not noticed before, how much Pascal takes from Motaignes’s Essays and uses in his Pensées. That include Pascal’s famous phrase about the mystical foundation of law.

What is the difference between them in the context of that phrase, something which will give me a start in thinking about the relationship between them. Montaigne, who had been a judge, refers in the immediate context to the impossibility of justice in law, There is always a contrast between following the forms of law and what the sense of justice tells the judge. There are always mistakes so that the innocent are punished. Montaigne concedes that as a judge he must have been involved in many mistakes and many occasions in which his sense of justice collided with the decision he had to bring. In the broader context, he refers to the endless possibilities of interpreting law. The law is never obvious, it can always be debated and there is no end to the debate or the number of positions that can arise in the debate. So justice is not present for at least three reasons: inevitable mistakes, the conflict between intuitions of justice and what the existing law requires, the impossibility of certainty in knowing what the law says. Legal judgements can only arise through a biased interpretation of law, there simply is no interpretation which will not be endlessly discussed if we try to be completely objective. The way law works as whole is that it is there and has to be applied, it has not foundation beyond the fact of its existence. This acceptance of legal institutions though they cannot be just is the mystic foundation of authority.

Pascal’s contextualisation refers to the force of law. This does not exactly contradict Montaigne, but Montaigne seems to think more in the sense of law as a habit rather than something imposed by force. Pascal also refers to the link between custom and equity. Equity, the sense of the broad justice of law as a whole, is an outcome of custom. This does not exactly contradict Montaigne either, but it seems more radical to emphasise that any sense of equity is a product of custom. Pascal directly criticises Montaigne’s view by saying that people do not not follow law through custom, but because they believe it is just. Again, even here, Pascal does not really contradict Montaigne, he is also concerned with the role of custom and habit. What marks out Pascal’s position is he thinks irrational beliefs are necessary to laws and the state. Montaigne emphasises imagination, but Pascal goes further in seeing the social world as something that depends on what people imagine.

Montaigne does not really emphasise contradiction, he presents a self that knows it is highly fallible but does it best to follow a modestly defined reason. Legal institutions are not just, but people obey them because they are used to them.

Pascal strongly emphasises contradiction. He strongly emphasises the irrationality of the self; and the way it imagines itself and the world. People obey legal institutions because they believe them to be just. The process by which people come to believe they are just must be a least partly as in Montaigne, habit. But for `Pascal, the habit builds on force and the imagination. The human self is not just confused, it is driven by imagination, by the search for glory, and external force.

Montaigne versus Pascal, is like Montesquieu versus Rousseau?

I don’t suggest that will completely work, but it would be a useful comparison.

Montaigne and Montesquieu see moral imperfection, errors of judgement and lapses into violence, intruding into social life.

Pascal and Rousseau see constitutive egotism, illusion, and violence, at the origin of social life.

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