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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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: Moderating Liberalism and Common Law: Spirit and Juridical Liberty

: Moderating Liberalism and Common Law: Spirit and Juridical Liberty

(p.15) One: Moderating Liberalism and Common Law: Spirit and Juridical Liberty
The Cloaking of Power
University of Chicago Press

This chapter focuses on the introduction of The Spirit of the Laws by Montesquieu, and the concern with both the realities and potentialities of political life partly explains why he does not openly declare the importance of judicial power for his constitutionalism, because the aims and novelty of his conception provide reasons for cloaking a proposal for reform. The intentional cloaking by Montesquieu is less confusing in light of d'Alembert's defense of the work's confusing style, which repeats the jurist's own remarks on the complexity of his writings. The conception of judicial power by Montesquieu is one beneficiary of the complicated approach to philosophy, because there are good reasons for cloaking this proposed transformation of political power. With the advancement in the argument of The Spirit of the Laws, Montesquieu develops his constitutionalism of separated powers more through praise of juridical complexity than through any other theme in his analysis of humankind and politics.

Keywords:   The Spirit of the Laws, Montesquieu, judicial power, constitutionalism, style, juridical complexity

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