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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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: Blackstone, Lord Mansfield, and Common-Law Liberalism

: Blackstone, Lord Mansfield, and Common-Law Liberalism

(p.150) Seven: Blackstone, Lord Mansfield, and Common-Law Liberalism
The Cloaking of Power
University of Chicago Press

This chapter discusses a new notion by Blackstone about judicial power in British constitutionalism as the moderating, tempering element that ensures individual liberty and tranquility. Judges are not visionary oracles of humane progress toward a later stage of societal evolution as considered by Blackstone, they either exercises self-restraint so as to allow the majority to evolve as it wills, or nudging society along a higher path. The link of Blackstone's analyses of legislative and executive power is the historical, constitutionalist lesson that moderation or balance, never extremes, is the best way to secure both political and civil liberty. Lastly, Blackstone's conception of judging includes the declaratory principle that judges claim not to make law but to indicate what the law is, knowing that on appeal or by statute their judgment can be declared erroneous.

Keywords:   Blackstone, judicial power, liberty, tranquility, judges, self-restraint, law

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