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“This book of great erudition should greatly interest constitutional philosophers and other theorists of modern constitutionalism. Highly recommended.”
In The Cloaking of Power, Paul O. Carrese provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new ...
In The Cloaking of Power, Paul O. Carrese provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and of strong but subtle courts. Montesquieu instructed statesmen and judges to "cloak power" by placing the robed power at the center of politics, while concealing judges behind citizen juries and subtle reforms. Tracing Montesquieu's conception of judicial power through Blackstone, Hamilton, and Tocqueville, Carrese shows how it led to the prominence of judges, courts, and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution-which he believes to be the source of the now-prevalent view that judging is merely political.
To address this crisis, Carrese argues for a rediscovery of an independent judiciary-one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. He also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right. Such judicial statesmanship, moderating democracy's excesses, Carrese explains, differs from an activism that favors isolated individuals and progressive policies over civic duties, communal principles, and constitutional tradition.
Students of political theory, law, constitutionalism, and the American founding will find The Cloaking of Power an invaluable resource.
M. Yorke tells me that a foreigner could not understand a single word in milord Cook and in Littleton; I tell him that I have observed that, with regard to the feudal laws and ancient laws of England, they do not seem to me very difficult to understand, no more than those of all the other nations, because, all the laws of Europe are gothic, they all have the same origin and are of the same nature; that on the contrary modern laws and jurisprudence are difficult to understand, because the times and circumstances of things have changed the gothic law in each country, and because that law everywhere takes the measure of one country and has changed like the political laws. He agrees with this.38Montesquieu's extensive examination of the origins and evolutions of Franco-German law in the final books of The Spirit of the Laws confirms this private notation on the Gothic root shared by English common law and French law. Nonetheless, his published references to the feudal laws and ancient laws of England are rare. He does cite Coke's predecessor Littleton (d. 1481) in the penultimate chapter of The Spirit of the Laws (31.33, 993 n. b). However, the reference is to a lesser-known work, not to Littleton's treatise on feudal tenures, the basic work of the English common law of property, known as the Tenures nouelli; Coke's commentary on this, known even to the American founders as "Coke-Littleton," begins Coke's own classic work, the Institutes. In two other unpublished notations, Montesquieu records his intention to purchase classic common-law treatises by Bracton (d. 1268) and Fortescue, including In Praise of the Laws of England. A fuller understandingof why Montesquieu's jurisprudence seemingly approximates but largely ignores the common law requires examination of his treatment of Franco-Germanic laws and of a juridical prudence in the closingbooks of The Spirit of the Laws, but a brief comparison with Hobbes and Locke prompts some conjectures by itself. In his conversation with Yorke, he characteristically suggests that Gothic law transforms itself in each particular country, takingon a new, ever-developingspirit and bewilderingvariety amongeach people. This hardly seems justification for overlooking English common law, since Montesquieu seems to makes good on his announcement in the Preface of the work's "infinite" scope, given his citations to peoples and laws spanningthe available literature on diverse continents and centuries. The suitability of common-law judging to Montesquieu's purposes, his private recognition of a shared Gothic root, and his earlier travels to England and friendship with a future Lord Chancellor suggest a silence more deliberate than accidental. The provenance of the common law is, after all, partly Scholastic and Aristotelian. Beyond Fortescue's In Praise of the Laws of England, this is evident in the text targeted by Hobbes, Saint Germain's Doctor and Student, which opens by paraphrasingAquinas's fourfold classification of divine, eternal, natural, and positive law. The "artificial reason," the developed prudence or judgment, exercised by the common-law mind ultimately understands itself both as customary and as rooted in natural truth or justice, even though English common law distinguishes itself from Scholastic natural law. Common law seeks right reason and natural justice through the common-law mode of refiningcustoms and precedents and by discerningright in particular cases. Its attention to particulars and precedents, so different from the code of Roman or civil law, suits Montesquieu. However, neither a root in natural law nor a prudence understood as the legal perfection of nature's right reason fits the spirit of his modern, liberal science.
Excerpted from The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism by Paul Carrese Copyright © 2003 by Paul Carrese. Excerpted by permission.
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