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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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: A Gothic and Liberal Constitution: Blackstone's Tempering of Sovereignty

: A Gothic and Liberal Constitution: Blackstone's Tempering of Sovereignty

(p.124) Six: A Gothic and Liberal Constitution: Blackstone's Tempering of Sovereignty
The Cloaking of Power
University of Chicago Press

This chapter compares the common law by Blackstone to a Gothic castle that gradually renovated, but not replaced, by respectful craftsmen as Blackstone places constitutional structures above immediate utility, both as a matter of the rule of law and to promote the ultimate utility for liberty and liberalism of such enduring principles. Blackstone adopted to a large extent Lord Hawkesbury's less jingoistic, but still patriotic mode, mostly citing Montesquieu for general principles of liberty, and when citing him on specific laws, French or otherwise, usually doing so in support of English law. Blackstone is as much a positivist as Hobbes or was “a forerunner of Austinian jurisprudence” as judged by the jurisprudence of the Commentaries that is too complex and balanced. Therefore, Blackstone's introductory discourse quietly places judicial power at the center of his theory of constitutional and statutory interpretation.

Keywords:   Blackstone, Gothic, constitutional structures, liberalism, English law, Commentaries, jurisprudence

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