Chapter

: Moderate and Juridical Government: The Spirit of Constitutional Liberty

in The Cloaking of Power

Published by University of Chicago Press

Published in print June 2003 | ISBN: 9780226094823
Published online March 2013 | e-ISBN: 9780226094830 | DOI: http://dx.doi.org/10.7208/chicago/9780226094830.003.0003
: Moderate and Juridical Government: The Spirit of Constitutional Liberty

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This chapter descries the promotion of judicial power point to a complex constitutionalism that raises civil law in relation to political law as an effort by Montesquieu to redefine honor and natural right in The Spirit of the Laws. In it he traces the essential moderation of monarchy to the complexity of its laws and judicial procedures, known in Anglo-American law as due process, or civil and criminal procedure. Although Montesquieu's is the most potent judicial power advocated in liberal political philosophy to that point, both in presentation and substance it adheres to the notion that stealth can enhance power. Thus, he tends to put into circulation the coin of a universal commerce in the rules and formalities of judging, toward the end of achieving humane, moderate government.

Keywords: judicial power; constitutionalism; civil law; Montesquieu; The Spirit of the Laws; judicial procedures; commerce

Chapter.  11414 words. 

Subjects: Political Theory

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