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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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: Projects for Reform: Due Process, National Spirit, and Liberal Toleration

: Projects for Reform: Due Process, National Spirit, and Liberal Toleration

(p.60) Three: Projects for Reform: Due Process, National Spirit, and Liberal Toleration
The Cloaking of Power
University of Chicago Press

This chapter explains Montesquieu's new conception of philosophy and prudence that maintains the cloaking of political power by instructing statesmen and judges to gradually, imperceptibly temper the laws to accord with moderation and a humane natural right. According to him, the liberty of the constitution concerns “the government” and separation of powers, while the liberty of the citizen concerns the particular laws and judicial procedures. The sine qua non of liberty is an independent judging power, and a legal profession practicing in its courts, which together embody the knowledge of these proper rules. He quotes instructions from several Roman emperors to a praetorian prefect regarding his judicial powers, advising that when accusations of seditious speech arise, a policy of toleration and moderation should avoid punishment, if possible. Thus, The Spirit of the Laws educates that the threat of rationalism, of trying to do too much, is ever-present in politics, legislating, and in judging.

Keywords:   Montesquieu, The Spirit of the Laws, prudence, philosophy, the government, rationalism

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