The History of Ideas

Scott Douglas Gerber

in A Distinct Judicial Power

Published in print May 2011 | ISBN: 9780199765874
Published online September 2011 | e-ISBN: 9780199896875 | DOI:
The History of Ideas

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This chapter traces the intellectual origins of a distinct judicial power. The story starts with Aristotle and the theory of a mixed constitution. The next chapter is written by Polybius in his characterization of the Roman constitution, and Polybius is followed by Marsilius of Padua's famous critique of Pope John XXII during the Middle Ages, Sir John Fortescue's writings about 15th-century English political institutions, and Gasparo Contarini's paean of praise during the 16th century to the Venetian constitution. The story takes a dramatic turn when King Charles I commits Anglo-American constitutional theory to balance among government institutions, rather than dominance by one, and reaches its climax with Montesquieu's famous idea that political power should be divided among the legislative, executive, and judicial branches of government. John Adams writes the concluding chapter when he develops the political architecture of an independent judiciary in his 1776 pamphlet, Thoughts on Government.

Keywords: judicial power; Aristotle; John Adams; Polybius; Marsilius of Padua; John Fortescue; Gasparo Contarini

Chapter.  12862 words. 

Subjects: Constitutional and Administrative Law

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