In a note, Montesquieu sets out the liberal view of torture; but, within the little note itself, he shows that he knows his view of torture is a liberal view and not the only view.
Montesquieu speaks of torture in the provinces: they are inventive and barbarically so. I would say “water boarding” is also inventive torture, but with the aim of being non-barbaric torture. Montesquieu is talking about peasants thinking up new ways of inflicting more pain and doing so more meaningfully. But, they are fools: “it was established that there would be twelve turns for ordinary torture, twenty-four for the extraordinary. It is easy to see that they wanted to double the punishment, but they have more than quadrupled it, since the thirteenth turn was doubtless the cruellest.”
Inflicting more cruelty and doing so in such a stupid, clumsy, way is shameful. Many things in the past were, like torture, shameful. Legality saves nothing: “by the same reasoning, trial by hot iron, by cold water by duels ought not to have been abolished…” That torture is legal is not an argument in its favor.
Writers like Menochius try to explain that torture is reasonable, but he comes up with some absurd reasons.
There is no saving torture, legally or rationally. Why then do we have torture? We have torture because our origins were barbaric. “Torture comes from slavery.” Do the men who have slaves learn of torture, or is torture developed by the slaves themselves? Montesquieu does not make it clear.
The point, either way, is that the slave is dehumanized on account of not being a citizen; this is a fault of the masters’.
The master ought to be able to treat non-citizens as humans. Montesquieu likens this cruelty to the practice of killing all the slaves of an assassinated master, even when the guilty party is known.
This last bit is put into brackets by Montesquieu and it’s not clear why.
This regulation is different though: it’s a bit of cruelty unlike torture, done out of caution. Indeed, there is sense to the law. If a slave thinks he might be able to assassinate his master and get away with it, maybe by blaming some other slave, then the chances of him making the attempt are higher; and, as a slave, he is in a good position to assassinate his master. The blanket punishment is a practice that makes it so no attempt will go unpunished. Whatever you might think of this motivation, it’s not that same barbaric motivation of inflicting pain for the sake of revenge.
When you realize that non-barbaric motivations might be behind extreme distinctions between citizens and non-citizens, then you can draw into question Montesquieu’s whole Note—where Montesquieu adopted a liberal evaluation of the motivations behind torture, as well as a liberal’s sense of superiority to the ravenous and ignorant fools that inflict such torments, the reader is suddenly reminded that this liberal evaluation is not always, or in every case, the correct evaluation.
Further, you can take things further: the abolition of torture would be like the abolition of the distinction between citizen and non-citizen. While you might think this means an end to an inhuman treatment, what you have done is actually throw caution to the wind: there is now no great threat you can wield to stave off the assassination (or some similar crime) of real citizens by pseudo citizens. – In other words, Montesquieu ends his Note by challenging its premise.
This kind of ending is common among talented writers. The reader nods along throughout only to have the ending suggest to him that he begin again. It’s reasonable to wonder why the author does this; if an author is promoting a specific regime, why would he give his reader a reason to doubt the consistency and goodness of that regime?
I’ve come up with two answers to this question. First, a philosopher cares more for philosophy—for the philosophic regimen—than whichever regime he is promoting. He will honor it more highly, in some fashion, in his writings. Second, the philosopher wants the regime he is promoting to succeed and to do this he needs the people who believe in it to not believe in it completely, or to believe in it in the right way, rather than the wrong way.
For example, the liberal, as a liberal, does not like the way men dehumanize non-citizens. He will take steps to diminish cruelty to non-citizens and, when he becomes fanatical, will even start to dislike the distinction at all. He might even start talking about “abolishing” the distinction the same way he talks about “abolishing injustice.” This opposition to distinguishing citizens from non-citizens, while liberal and encouraged by liberalism, is a sign of the death of liberalism. A writer who liked the benefits of liberalism would do well to initiate his readers into its defects, to make them realize that the regime’s claims are not as total or as consistent as they would seem to be. These are the men who, according to Leo Strauss, are able to “complete the law,” without whom the law falls into the hands of fanatics and becomes odious to reasonable and good men.
A post script: To know that a view belongs to a specific regime, and that there are other regimes with other views, is not the same thing as relativism. To understand the different motivations inspiring different regimes is not relativism. The philosophic man, living according to the philosophic regimen, elevates knowledge over opinions and truth over error while at the same time understanding the necessity of lesser, more public, regimes. For the relativist, there is no “knowledge” and no “Truth” and this means that there are no grounds for discrimination or guiltiness. “How can you claim to be better than someone if there is no true moral standard of right and wrong?” This kind of evasion is not what is going on when a philosopher has respect for the variety of regimes. When he recognizes the variety of regimes, he recognizes a variety of obstacles to the Truth, and therefore a variety of modes men adopt to overcome those obstacles.