Chapter

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

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/9780226094830.003.0005
: The New Aristocracy of the Robe: History, Reason, and Judicial Prudence

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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

Chapter.  10379 words. 

Subjects: Political Theory

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