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The Cloaking of PowerMontesquieu, Blackstone, and the Rise of Judicial Activism$
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Paul O. Carrese

Print publication date: 2003

Print ISBN-13: 9780226094823

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226094830.001.0001

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: Holmes and Judicialized Liberalism

: Holmes and Judicialized Liberalism

Chapter:
(p.231) Ten: Holmes and Judicialized Liberalism
Source:
The Cloaking of Power
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226094830.003.0011

This chapter discusses the writings and judicial views of Oliver Wendell Holmes Jr. and the extraordinary influence he achieved in twentieth-century legal discourse that originated in part from the efforts by Montesquieu and Blackstone to moderate law by splitting judicial procedure from jurisprudential essence. A clear concept of judicial legislating yielded by Holmes's uncertainty about any fixed legal principle was intended to achieve a new social and legal order, one more adjusted to either current majority will or to be an evolutionary progress of the species. Holmes avoided Montesquieu's constitutionalism while appreciating other ends or aims of his philosophy, generally viewing it as a cosmopolitan, historicist humanism that survived its outdated efforts as a science of politics. The Holmesean realism is criticized as being provided by both Montesquieuan jurisprudence and the classic common-law spirit because it poses severe obstacles that perpetuate the rule of law in a sound constitutional order.

Keywords:   Oliver Wendell Holmes Jr, jurisprudential essence, Montesquieu, Holmesean realism, common-law spirit

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