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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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: The New Aristocracy of the Robe: History, Reason, and Judicial Prudence

: The New Aristocracy of the Robe: History, Reason, and Judicial Prudence

(p.82) Four: The New Aristocracy of the Robe: History, Reason, and Judicial Prudence
The Cloaking of Power
University of Chicago Press

This chapter explains that Montesquieu teaches that the particular, practical, and historical dimension of his new prudence must balance its theoretical aspect and this blending of general principles and particulars, of theoretical reasoning and attention to precedents, corresponds to the quasi-monarchical, complex judicial power he advocates. The blend of liberal principles and tradition legal prudence by Montesquieu arranges the way for Blackstone's similar blending of common law and liberalism, of historical inquiry and theoretical clarity, in his Commentaries, which is a fundamental source for American constitutionalism and jurisprudence. Montesquieu explains that due to judicial initiative, the barbaric laws “little by little” ceased to be used among the early French. Thus, his liberal education in law seeks to instruct at once philosophers, legislators, and judges in this spirit.

Keywords:   Montesquieu, prudence, quasi-monarchical, judicial power, liberal principles, American constitutionalism, jurisprudence

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